HomeMy WebLinkAboutRESOLUTION - 56-05 - 10/25/2005 - CONSTRUCTION/DONATION AGREEMENT/50TH ANN RESOLUTION NO. 56-05
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A CONSTRUCTION AND DONATION AGREEMENT BETWEEN
ALEXIAN BROTHERS MEDICAL CENTER, CENTEX HOMES AND THE
VILLAGE OF ELK GROVE VILLAGE(CONSTRUCTION OF 50'ANNIVERSARY
HOUSE)
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 and Village Clerk be and are hereby authorized to sign the
attached documents marked:
CONSTRUCTION AND DONATION 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 25th day of October 2005.
APPROVED this 25t4 day of October 2005.
APPROVED:
Mayor Craig B.Johnson
Village of Elk Grove Village
ATTEST:
Ann I.Walsh,Village Clerk
RESAgreeAlexianCentex
CONSTRUCTION ANI) DONATION AGREEMENT
This Construction and Donation Agreement ("Agreement") made as of the 25th day of
October, 2005, by and among �ed'jcal Cen eirs an Illinois not-for-profit-corporation
("Alexian"), Centex Homes, a Nevada general partnership ("Centex Homes") and the Village of
Elk Grove, an Illinois municipal corporation (the "Villa¢e", which together with Centex Homes
and Alexian is sometimes referred to as the"Parties").
Factual Backeround
A. 2006 will be the fiftieth anniversary of the incorporation of the Village, and the
Village has planned events to commemorate the exceptional development and growth of the
Village during those fifty years.
B. Centex Homes, one of the nation's premiere builders, has played an integral role
in that growth and development, building many of its homes and industrial buildings during the
past fifty years.
C. Alexian, through its affiliate, Alexian Brothers Health System, has furnished
health care services to the Village residents for many years and has, like Centex Homes, grown
with the Village.
D. The Village has identified a parcel of land that would be appropriate for
development as a single family residence, which would be one of the last lots to be developed
into single family housing within the Village. The Village has undertaken the necessary actions
to create a single, buildable lot, which lot is legally described as set forth in Exhibit A and
hereinafter referred to as the "Proiect Site". Alexian will ultimately become the fee simple
owner of record of the Project Site.
E. Upon fulfillment of the Conditions Precedent set forth in Section 2 of this
Agreement, Centex Homes will build on the Project Site a single-family residence (the
"Residence') and,upon substantial completion,will donate the Residence to Alexian,as set forth
in this Agreement. Alexian, in turn, will conduct a charitable raffle of the Residence and the
Project Site (the"Raffle"),the proceeds of which will benefit Alexian and other public charities
serving the Village's residents.
Now therefore, in consideration of the foregoing and other good and valuable consideration,the
receipt and sufficiency of which are acknowledged,the Parties agree and covenant as follows:
1. DESCRIPTION OF RESIDENCE AND WORK.
(a) The Residence will consist of a single family residence of approximately
Three Thousand Two Hundred Fifty-Three square feet(3,253'), as described in outline plans and
specifications described in Schedule I attached hereto and made a part hereof, which are
collectively referred to as the "Contract Documents". Included as part of the Contract
Documents are the additional amenities/features described in the Schedule 2 attached hereto and
made a part hereof All dimensions in the Contract Documents are approximate and are subject
to adjustment by Centex Homes. Centex Homes reserves the right to modify the Contract
C111994`i 8669-5.001319.0016
Documents from time-to-time, provided that such modifications will not materially alter the
quality or features of the Residence. Centex Homes is and will.remain the sole owner of the
Contract Documents, Centex Homes will be the sole interpreter of the Contract Documents.
(b) Centex Homes agrees to furnish (at Centex Homes' cost and expense
consistent with Section 5 of the Agreement) either with its own forces or through its
subcontractors (hereinafter, "Subcontractors") the labor, materials, equipment and services as
described in the Contract Documents (the "Work"), except to the extent indicated in this
Agreement or the Contract Documents to be the responsibility of others. The Work will include
the installation of the appliances and such features described in the Contract Documents, and the
Residence will be painted and carpeted to the extent indicated in the Contract Documents, and
otherwise will be finished to a"furniture-ready"condition.
2. CONDITIONS PRECEDEW TO COMMENCEMENT OF CONSTRUCTION
BY CENTEX HOMES. Commencement of the Work is contingent upon satisfaction of all of
the following conditions:
(a) That the Village and/or Alexian furnishes Centex Homes with reasonable
assurances that fee simple title to the Project Site is vested in Alexian by securing a title
commitment from Chicago Title Insurance Company reflecting Alexian as the owner of fee
simple title, subject only to exceptions to title reflected in Schedule B thereof, none of which
shall prohibit or unduly burden, economically or otherwise,the Work;
(b) That the Village furnishes Centex Homes with reasonable assurances that
Project Site has potable water, sanitary sewer, storm sewer, electricity, natural gas and
telecommunications services available in sufficient capacities and accessible at the Project Site,
with all impact, connection,tap-on and other charges waived or paid by others;
(c) That the Village issues in favor of Centex Homes a building permit for the
Work with the building permit fee having been waived;
(d) That the Village or Alexian furnishes Centex Homes with a certificate
signed by an Illinois licensed engineer certifying to Centex Homes that the Project Site has a
buildable building pad, upon which Centex Homes will perform its Work. For purposes of this
Section 2(d), "buildable building pad"means the following:
(i) Compaction in house pad embankments, including slopes and
other portions of the structure, shall be sufficient to obtain a minimum density of
95%of optimum density at footing depth nine feet(9') below top of finished pad
elevation) as determined by the modified AASHO compact test. Permanent cut,
fill, and embankment slopes shall not be steeper than three (3) horizontal to one
(1)vertical;
(ii) No portion of the building pad shall have a bearing strength of less
than two thousand five hundred (2,500) psf between the finished pad surface
elevation to a depth of nine feet (9') below the finished building pad surface
elevation. In addition, the building pad at a depth of nine feet (9') below the
finished pad surface elevation shall be capable of bearing strength of two
-2-
CH199 4519669-5.001319.0016
thousand five hundred (2,500) psf. The building pad volume (from the surface of
the building pad to a depth of nine.feet (9') below the finished building pad
elevation over the entire area of the building pad) shall be free from unsuitable
and organic material and stones over 6 inches in maximum dimension- The
building pad volume shall have been constructed over suitable supporting
material;
(iii) Where the building pad have been constructed in cut or excavation
areas, the requirements of (i) and (ii) above shall apply, except Centex Homes
may accept lesser strengths or densities only if, in Centex Homes' opinion, no
modifications whatsoever shall be required to Centex Homes' standard footing,
foundation, slab, or method of construction as a result of said lesser strengths of
densities;
(iv) The building pad shall be level, having a tolerance not exceeding
plus or minus 0.167 feet with the average elevation being the pad elevation shown
on the engineering plans attached hereto as Schedule 3;
(v) The building pad shall be of sufficient size to enable Centex
Homes to construct, using normal construction methods, on the building pad and
within the Project Site lot and set-back lines,the Residence;
(vi) The top of the building pad shall be established at a height of not
less than 1.93 feet nor more than 227 feet above the top of the curb and the slope
of the elevation from the curb to the street on at least one side of the lot shall not
exceed'seven(7%)percent;and
(vii) The building pad shall be graded to provide positive drainage after
replacement of topsoil;
(e) That the Village or Alexian will furnish Centex Homes with an
ALTA/ACSM land title survey showing the building pad to be located within all lot and building
set-back lines;
(f) That the Village furnishes Centex Homes with reasonable written
assurances that it has waived inspection or other fees otherwise chargeable in connection with
the Work provided nothing herein shall release Centex Homes obligation to comply with all
other applicable laws,ordinances,and regulations;and
(g) That the Village furnishes Centex Homes with reasonable written
assurances that upon substantial completion of the Work, that the Village will install sidewalks,
streets, curb, gutter, parkway landscaping and any other improvements necessary for the Project
Site to conform to all Village codes.
Subsections 2(a)-(g) are singularly referred to as a "Condition Precedent" and collectively
referred to as the "Conditions Precedent." The Village hereby agrees to indemnify, reimburse
and hold Centex Homes harmless against any claims, damages, suits, costs and expenses arising
-3-
C1IM.1518669-5.001319.0016
from any failed Condition Precedent or any false or incorrect material submitted to Centex
Homes pursuant to Subsections 2(a)-(g) inclusive.
3. DATE OF COMMENCEMENT;DATE OF SUBSTANTIAL COMPLETION.
(a) Subject to Force Majeure delay (as defined below), Centex Homes will
commence the Work within five (5) business days after all Conditions Precedent have been
satisfied (the "Commencement Date") and will, exercising its reasonable efforts, endeavor to
substantially complete the Work by May 1, 2006 (the "target substantial completion date"). If
Centex Homes is delayed at any time in the commencement or progress of the Work by labor
disputes, fire, delay in deliveries, interference by or non-cooperation of Alexian or the Village,
adverse weather conditions not reasonably anticipatable, casualties or any causes beyond Centex
Homes' reasonable control, shortages of labor,equipment or materials, or by other causes which
Centex Homes determines, in its reasonable judgment, may justify delay (collectively, "Force
Majeure"), then the target substantial completion date will be extended for such reasonable time
as Centex Homes may determine. Centex Homes will furnish the Village and Alexian with
written notice of Force Majeure and the anticipated effect on the target substantial completion
date.
(b) The terms"substantial completion" or "substantially complete" means the
stage in the progress of the Work when the Work is sufficiently complete in accordance with the
Contract Documents as reasonably determined by Centex Homes and the Village so that the
Project Site can be occupied as a single family residence in substantial accordance with all
applicable laws, ordinances, and regulations (excluding however, any work that the Village is
responsible for as set forth in Section 2(g)and any such portions of the Work that are seasonal in
nature, i.e. landscaping, for which temporary or conditional certificates of occupancy are issued).
4. INFORMATION, SERVICES AND OBLIGATIONS REQUIRED OF
ALEXIAN AND THE VILLAGE.
(a) Commencing as of the date of this Agreement,Alexian will permit Centex
Homes to enter the Project Site to become familiar with the Project Site and its characteristics
and to take any tests and/or inspections that it deems necessary. Upon satisfaction of all
Conditions Precedent, Alexian will deliver exclusive possession of the Project Site to Centex
Homes, after which time Alexian's designated representative will be permitted access to the
Project Site only upon request to Centex Homes' designated representative.
(b) Prior to the Commencement Date, Alexian will furnish Centex Homes
with a copy of Alexian's sales tax and use tax exemption from the Illinois Department of
Revenue. In the event Centex Homes is responsible for any sales/use taxes in connection with
the Work, such sales tax shall be paid by the Village or Alexian from raffle proceeds upon
demand by Centex Homes.
(c) Throughout the term of this Agreement, the Village and Alexian (i) will
pay before they become delinquent (x) all temporary utility services (defined below) (although
Centex Homes will at its cost install such temporary services or connections) and (y) all real
estate taxes and/or special assessments attributable to the Project Site and (z) will indemnify
.4-
CH199 4518669-5.001319.0016
Centex Homes for any claims, damages, suits, costs and expenses arising from any interruption
or delay caused by their breach of subpart 4(c)(i) above.
(d) Tests, inspections and approvals of portions of the Work required by the
Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities
having jurisdiction shall be made at an appropriate time.
5. CONSTRUCTION.
(a) Upon satisfaction of the Conditions Precedent and subject to Force
Majeure, Centex Homes will, at its cost and expense, furnish and pay for labor, materials,
equipment, tools, construction equipment and machinery, transportation, and other facilities and
services necessary for proper execution and completion of the Work whether temporary or
permanent and whether or not incorporated or to be incorporated in the Work, except for the
temporary utility services being furnished as set forth in Section 4(c). Except as set forth in
Section 14(b), neither Alexian nor the Village will have the right to stop the Work or to remove
Centex Homes from the Project Site and/or perform the Work with another contractor.
(b) Centex Homes will supervise and direct the Work in good faith and with
reasonable diligence. Centex Homes' prime Subcontractors will be solely responsible for and
have control over construction means, methods, techniques, sequences and procedures. Centex
Homes will coordinate its Subcontractors executing all portions of the Work under this
Agreement for which Centex Homes is responsible.
(c) Centex Homes will be responsible to Alexian for acts and omissions of
Centex Homes' employees, subcontractors and their agents and employees, and other persons or
entities performing portions of the Work ;For or on behalf of Centex Homes or any of its
subcontractors.
(d) Centex Homes may make substitutions in the Work as long as such
substitutions are equal or better quality, as reasonably determined by Centex Homes.
(e) Centex Homes will keep the Project Site and surrounding area free from
accumulation of waste materials or rubbish caused by operations under this Agreement. Upon
substantial completion of the Work, Centex Homes will remove from and about the Project Site
waste materials,rubbish,tools,construction equipment,machinery and surplus material.
(f) Centex Homes will be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the performance of the
Agreement. Centex Homes shall cause its Subcontractors to take reasonable precautions for
safety of, and shall provide reasonable protection to prevent damage, injury or loss to: employees
on the Project Site and other persons who may be affected thereby; the Work and materials and
equipment to be incorporated therein; and other property at the Project Site or adjacent thereto.
(g) Centex Homes will comply with applicable laws, ordinances, rules,
regulations and lawful orders of public authorities bearing on safety of persons and property and
their protection from damage, injury or loss and bearing on the performance of the Work.
-5-
C11199 4518669-5.001319.0016
6. HAZARDOUS MATERIALS.
(a) If Centex Homes determines in its sole discretion that materials or
substances encountered on the Project Site pose a threat of injury, death or harm to health
resulting from exposure to such materials or substances, including but not limited to asbestos or
polychlorinated biphenyl (PCB), Centex Homes shall, upon recognizing the condition,
immediately stop Work in the affected area and report in writing the condition to Alexian and the
Village. When the material or substance has been rendered harmless by the Village or Alexian,
Work in the affected area will resume upon the written agreement of Alexian, the Village and
Centex Homes, whereupon the target substantial completion date will be extended appropriately'
as set forth in Section 3(a).
(b) To the fullest extent permitted by law, Alexian and the Village hereby
agrees to indemnify and hold harmless Centex Homes, its subcontractors, the agents and
employees of any of them from and against claims, damages, losses and expenses, including but
not limited to attorneys' fees, arising out of or resulting from performance of the Work in the
affected area if the suspected materials or substances present risk of bodily injury, death or harm
to-health as described in Section 6(a) and have not been rendered harmless.
(c) If Centex Homes is held liable for the cost of remediation of any
hazardous material or substance solely by reason of performing Work as required by the Contract
Documents, Alexian and the Village shall indemnify Centex Homes for all cost, damages and
expense thereby incurred.
7. INDEMNIFICATION;INSURANCE;WAIVER.
(a) Indemnification.
(i) To the fullest extent permitted by applicable law, Centex Homes
shall indemnify and hold harmless Alexian and the Village and the agents and
employees of any of them from and against claims, damages, losses and expenses,
including but not limited to attorneys' fees, arising out of or resulting from
performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or
destruction of tangible property(other than the Work itself),but only to the extent
caused by the negligent acts or omissions of Centex Homes, its Subcontractors,
anyone directly or indirectly employed by them or anyone for whose acts they
may be liable.
(ii) To the fullest extent permitted by law, each of the Village and
Alexian jointly and severally agrees to protect, defend, indemnify and save
harmless Centex Homes and its officers,directors, partners, employees and agents
from all liabilities, costs, damages, fees and expenses arising out of or connected
with the activities of the Village or Alexian or either of their other contractors;
other subcontractors or others for whom either would be responsible.
-J-
C11199451W9-5.001319.0016 - -
(b) Insurance.
(i) During this Agreement, Centex Homes will maintain one or more
policies of insurance for protection from: (A) claims under workers'
compensation acts and.other employee benefit acts which are applicable, (B)
claims for damages because of bodily injury, including death, and (C) claims for
damages to property which may arise out of or result from Centex Homes'
operations under this Agreement. The policies of insurance required hereunder
will be issued by a company or companies lawfully authorized to do business in
Illinois. Centex Homes will cause the Village and Alexian to be named as
additional insureds to the policy or policies issued pursuant to subparts (B) and
(C) and will cause its Subcontractors to carry the same coverages and name
Centex Homes, the Village and Alexian as additional insureds under the
Subcontractors' policies.
(ii) Alexian, the Village and Centex Homes each waive all rights
against each other and any of their subcontractors, sub-subcontractors, agents and
employees, each of the other for damages caused by fire or other causes of loss to
the extent covered by property insurance applicable to the Work. The policy or
policies shall provide such waivers of subrogation by endorsement or otherwise.
A waiver of subrogation shall be effective as to a person or entity even though
that person or entity would otherwise have a duty of indemnification, contractual
or otherwise, did not pay the insurance premium directly or indirectly, and
whether or not the person or entity had an insurable interest in the property
damaged.
(c) Waiver. Centex Homes, Alexian and the Village each waives claims
against each other for punitive or consequential damages arising out of or relating to this
Agreement.This mutual waiver which shall survive forever includes:
(i) damages incurred by Alexian and/or the Village for rental
expenses,for losses of use,income,profit,financing,business and reputation,and
for loss of management or employee productivity or of the services of such
persons; and
(ii) damages incurred by Centex Homes for principal office expenses
including the compensation of personnel stationed there, for losses of financing,
business and reputation,and for loss of profit.
S. SELECTION OF FINISHESIOPTIONS. Because the Raffle winner will not be
known until after substantial completion, Centex Homes will select the finishes, options,
appliances and other selections customarily made by the home purchaser from Centex Homes'
available selections for the Residence.
9. UNKNOWN, CONCEALED CONDITIONS. If concealed or unknown physical
conditions are encountered at the Project Site that differ materially from those indicated in the
certificate provided in Section 2(d) or from those conditions ordinarily found to exist, Centex
_7 _
CH199 4518669-5.001319.0016
Homes reserves the right to modify the Contract Documents and the Work in response to such
conditions and to be reimbursed by the Village for its reasonable, actual costs incurred because
of such conditions, and the Village agrees to so reimburse Centex Homes, in addition to the
indemnity set forth in Section 2.
10. CHANGES IN THE WORK. In addition to the other terms of this Agreement
and without invalidating this Agreement, Centex Homes reserves the right to make minor
changes in the Work not inconsistent with the intent of the Contract Documents.
11. SUBSTANTIAL COMPLETION; TURNOVER; PUNCH LIST.
(a) Upon no less than five: (5)business days' prior written notice from Centex
Homes that the Work will be substantially complete and ready for acceptance, designated
representatives of Centex Homes, the Village and Alexian will promptly inspect the Work
("Substantial Completion Inspection'). Upon completing the Substantial Completion Inspection,
the Village shall issue its certificate of occupancy (either temporary or permanent, as the case
may be) for the Residence, unless the Village issues a written objection notice within three
business days after the Substantial Completion Inspection. Such objection notice will provide
detailed reasons for rejection of substantial completion. Upon conclusion of the Substantial
Completion Inspection(or reinspection if the Village withheld its certificate of occupancy as set
forth in the previous sentence),the Parties will sign off on a written list of items of Work, if any,
which must be completed or corrected (the "Punch List"). If the Village or Alexian fails to
participate in the Substantial Completion Inspection, or participates but fails to sign the list of
Punch List Items,the list of Punch List will be prepared by Centex Homes alone.
(b) Within five (5)business days after the Substantial Completion Inspection,
Centex Homes will turnover the Residence and the Work to Alexian ("Turnover'), subject to
completion of the Punch List. At Turnover, Centex Homes will deliver to Alexian the following:
(i) its standard limited warranty (the "Limited Warranty" a copy of
which is attached hereto as Exhibit B , modified so that Alexian can assign the
Limited Warranty to the Raffle winner;
(ii) final waiver of lien by Centex Homes;
(iii) assignment of vendors' warranties and guarantees that Centex
Homes generally furnishes to purchasers of its residences;
(iv) keys, garage door openers and such other new home purchaser
materials; and
(v) bill of sale and quitclaim deed to Alexian.
(c) Punch List items will be completed and/or repaired or replaced by Centex
Homes as expeditiously as possible, subject,however,to: Force Majeure delay, unavailability of
materials or labor or access to the Residence(or any combination thereof).
-8-
01199 4518669-5.001319.0016
(d) Alexian's acceptance of the Work and the Residence at Turnover shall
constitute a waiver of claims by the Village and Alexian, except those arising from liens, claims,
security interests or encumbrances arising out of the Agreement (other than the obligations
pursuant to the Punch List) and from the Limited Warranty.
(e) Centex Homes hereby agrees to indemnify Alexian, the Village and the
Project Site from and against all mechanics' liens arising out of the Work performed by Centex
Homes or its subcontractors. Centex Homes may furnish a title bond or other title insurance
policy insuring over any such lien or claim of lien in full satisfaction of this obligation.
12. DISCLAIMER OF WARRANTY; LIMITED WARRANTY FOR
CORRECTION OF WORK.
Illinois law provides that every contract for the purchase of a new residence possibly carries with
it a warranty that, when completed, the residence will be free of defects and will be fit for its
intended use as a residence(the "Implied Warranty'). This law further provides that this Implied
Warranty does not have to be in writing to be a part of the contract and it covers not only
structural and mechanical defects such as may be found in the foundation, roof, masonry,
heating, electrical and plumbing, but also covers any defect in workmanship which may not
easily be seen by the purchaser. However, the law also provides that a contractor and an owner
may agree in writing, as here, that this Implied Warranty is not included as a part of their
particular contract.
Accordingly, THE ONLY WARRANTIES PROVIDED BY CENTEX HOMES ARE
THOSE CONTAINED IN THE ATTACHED CERTIFICATE OF LIMITED
WARRANTY, AND CENTEX HOMES HEREBY DISCLAIMS, AND THE VILLAGE,
ALEXIAN AND THE RAFFLE WAIVER EACH HEREBY WAIVES, THE IMPLIED
WARRANTY OF HABITABILITY DESCRIBED ABOVE. THE VILLAGE AND
ALEXIAN ACKNOWLEDGE, UNDERSTAND AND AGREE THAT THE IMPLIED
WARRANTY OF HABITABILITY IS NOT A PART OF THIS AGREEMENT.
THE VILLAGE AND ALEXIAN EACH ACKNOWLEDGES AND UNDERSTANDS THAT
IF A DISPUTE ARISES WITH CENTEX HOMES AND THE DISPUTE RESULTS IN A
LAWSUIT, NEITHER THE VILLAGE NOR ALEXIAN WILL BE ABLE TO RELY ON THE
IMPLIED WARRANTY OF HABITABILITY DESCRIBED ABOVE, AS A BASIS FOR
SUING CENTEX HOMES OR AS THE BASIS OF A DEFENSE IF CENTEX HOMES SUES
EITHER OF THEM. LAWFUL HOLDER OF THE CERTIFICATE OF LIMITED
WARRANTY MAY RELY ON THE EXPRESS WRITTEN WARRANTIES CONTAINED IN
THE CERTIFICATE OF LIMITED WARRANTY.
EACH OF THE VILLAGE AND ALEXIA14 ACKNOWLEDGES THAT THEY HAVE READ
AND UNDERSTAND THIS AGREEMENT, INCLUDING THE ATTACHED CERTIFICATE
OF LIMITED WARRANTY AND HAVE HAD AN OPPORTUNITY TO SEEK
PROFESSIONAL ADVICE CONCERNING THE CONTENTS. EACH OF THE VILLAGE
AND ALEXIAN KNOWINGLY AND VOLUNTARILY IS SIGNING THIS LIMITED
WARRANTY STATEMENT, AND AGREE THAT AS A CONDITION OF TRANSFERRING
THE RESIDENCE TO THE RAFFLE WINNER, THE RAFFLE WINNER WILL ALSO
EXECUTE THIS LIMITED WARRANTY STATEMENT PRIOR TO DELIVERY OF TITLE
-9-
C11199 4518669-5.001319.0016
TO OR POSSESSION OF THE RESIDENCE..
AGREED:
Village of Elk Grove
By: By:
13. RAFFLE; PROMOTIONAL RIGHTS.
(a) Alexian covenants to Centex Homes that it will conduct the Raffle in
accordance with the terms of this Section 13. and all applicable laws. Alexian hereby agrees to
indemnify, reimburse and hold Centex Homes harmless against any damage, suit, claim, cost or
expense, including, but not limited to reasonable attorneys' fees incurred or suffered by Centex
Homes arising from any violation or threatened violation of any applicable law or damage, loss
or suit arising from the Raffle, including, but not limited to, copyright, royalty or other
intellectual property right.
(b) Alexian agrees (i)not to deliver title or possession of the Residence to the
Raffle winner unless the Raffle winner executes in favor of Centex Homes the limited warranty
statement and disclaimer in the form set forth in Article 12 hereof and (ii) to indemnify Centex
Homes any damage, suit, claim, cost or expense made by the Raffle winner against Centex
Homes, except to the extent covered by Centex Homes' Limited Warranty.
(c) Until Turnover, Centex Homes has the right to erect and maintain signage
on the Project Site acknowledging Centex Homes' participation in the Raffle and its donation of
the Residence upon substantial completion. Centex Homes has the right to include references of
its participation and sponsorship role in the Raffle in any manner or media.
(d) Alexian agrees to designate Centex Homes (i) within the highest level of
sponsorship in the Raffle and (ii) as the exclusive home builder/construction contractor
participating in the Raffle. Alexian agrees that all promotional materials for the Raffle will
clearly indicate that the Residence is being donated by Centex Homes using Centex Homes'
name and logo. Centex Homes' agrees to grant to Alexian a .limited license to use Centex
Homes' name and logo in the marketing and promotional materials developed and distributed in
connection with the Raffle, subject, however, to Centex Homes' prior written approval. Alexian
agrees that it will expend in excess of$ 65,000.00 to market and conduct the Raffle.
14. TERMINATION OF THE AGREEMENT.
(a) As long as the Village and Alexian cooperate with Centex Homes and
observe their obligations as set forth in this Agreement, Centex Homes agrees not to terminate
this Agreement. If, however, the Village or Alexian fails to cure any material violation of this
Agreement by either of them through no fault of Centex Homes for a period of ten (10) days
after written notice and demand to cure, Centex Homes may, as its sole and exclusive remedy,
terminate this Agreement and recover from the Village payment for Work executed and for
proven loss with respect to materials, equipment, tools, and construction equipment and
machinery, including reasonable overhead, profit and damages applicable to the Project.
.o-
C11199 4518669-5M1319.0016
(b) If Centex Homes fails to cure any material violation of this Agreement,
through no fault of either the Village or Alex:ian, for a period of ten (10) days after written notice
and demand to cure, Alexian may terminate this Agreement and take title to all Work and
installed upon the Project Site, without compensation to Centex. Homes, such right being
Alexian's and the Village's sole and exclusive remedy for such substantial breach of a material
provision of this Agreement; provided, however, Centex Homes shall not be deemed in default
hereunder if the material violation cannot be reasonably be completed within such ten day period
and if Centex Homes commences to cure such material violation within such ten day period and
diligently pursues same to completion. This right shall not extend to the right to take possession
of any equipment, tools, or construction equipment or machinery thereon owned by Centex
Homes or its subcontractors.
15. MISCELLANEOUS PROVISIONS
(a) No party to this Agreement shall assign it without written consent of all
Parties, which consent may be withheld for any reason. Any assignment in violation of this
Section will be void and unenforceable.
(b) Nothing in this Agreement is intended to give, create or confer any
benefits, rights,privileges,claims, actions or remedies to any person or entity,including,but not
limited to, the.Raffle winner, as a third party beneficiary under any common law, statute, law,
code, ordinance,rule, regulation,order,decree or otherwise.
(c) This Agreement will be governed by the law of Illinois without regard to
conflict of laws principles. The invalidity of any provision of this Agreement shall not impair or
affect in any manner the validity, enforceability or effect of the rest of this Agreement.
(d) Any applicable statute of limitations shall commence to run and any
alleged cause of action shall be deemed to have accrued not later than the date of Turnover.
(e) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of such counterparts shall constitute one
Agreement.
(f) All notices required hereunder shall be in writing and shall be deemed
properly served if delivered in person or by a nationally recognized overnight express carrier to
the following addresses, or to such other addresses as either party may subsequently designate:
Centex Homes
Centex Homes—Illinois Division
2205 Point Boulevard
Suite 200
Elgin,IL 60123
Attention: Daniel L, Star
With copy to:
CH199 4518669-5.001319.0016
Centex Homes—Midwest Division
14850 Scenic Heights Road
Suite 125
Eden Prairie, MN 55344
Attention: Joel S.Reed
McDermott, Will & Emery LLP
227 West Monroe Street
Floor 4400
Chicago, IL 60606
Attn: Fred I. Feinstein,P.C.
Elk Grove:Village
901 Wellington Avenue
Elk Grove Village, IL 60007
Attention: Village Manager
Alexian Brothers Medical Center
Copy to:
800 Biesterfield Road Ungaretti & Harris
Elk Grove Village, IL 60007
3 -First National Plaza Suite 3500
Attention: Susan Breier Chicago, IL 60602
Attention: Floyd Perkins
For purposes of this Agreement, all notices,demands,deliveries or other communications
required hereunder shall be deemed received on the date of delivery, or on the business day
following delivery to such overnight express carrier. The individuals named hereinabove shall
be the Parties' designated representatives for purposes of this Agreement. The designated
representative or the addresses set forth herein may be changed upon ten (10) business days'
prior written notice from one party to the other parties.
(g) Centex Homes shall not in any way or for any purpose become a partner
of, or a joint venturer or a member of a joint enterprise with, Alexian or the Village in the
conduct of the Raffle or otherwise.
(h) All indemnities set forth in this Agreement shall survive forever.
[signatures on the following page]
CNi99 4516669-5.001319.0016
This Agreement entered into as of the day and year first written above.
VILLAGE OF LvPK GROVE CENTEX HOMES, a Nevada
general partnership
Craig B. Johnson
by: Craig B. Johnson by: Daniel L. Star
Mayor Illinois Division President
ALEXIAN I HE MEDICAL CENTER
W. Johnson
res d nUCEO
- 13 -
Elk Grove Village
This Agreement entered into as of the day and,year first written above.
CENTEX HOMES,a Nevada general
partnership
By: Cen Real Estate Corporation,
a v a corporation and its
Mg Gene er
By:
Daniel L. Star
Illinois Division President
CM994519669.5.001319.OD16
Attachments
Schedule 1 -- Outline Plans and Specifications for Sycamore Model
Schedule 2—Additional Amenities/Features
Schedule 3—Buildable Building Pad Site Plan
Exhibit A—Legal Description
Exhibit B—Centex Homes Limited Warranty
C11199 4518669-5.001319.0016