EXHIBIT 10.48
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DEVELOPMENT AGREEMENT
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THIS
AGREEMENT made and entered into this 26th day of May,
2004, by and between the CITY OF ELGIN, an
Illinois municipal
corporation (hereinafter referred to as the
"City"); and JOHN B.
SANFILIPPO AND SON, INC., an Illinois
corporation, ARTHUR/BUSSE
LIMITED PARTNERSHIP, an Illinois limited
partnership, and 300 EAST
TOUHY AVENUE LIMITED PARTNERSHIP, an
Illinois limited partnership
(hereinafter collectively referred to as
"Developer").
WHEREAS,
the City Council has adopted Ordinance No. S4-04,
proposing the creation of the proposed
Route 20 Tax Increment
Financing District pursuant to the Tax
Increment Allocation
Redevelopment Act at 65 ILCS 5/11-74.4-1,
et seq. (hereinafter
referred to as the "Proposed Route 20 Tax
Increment Financing
District"); and
WHEREAS,
the State of Illinois is the owner of an
approximately 90 acre parcel of property
commonly known as 750 S.
State Street, Elgin, Kane County, Illinois,
such property being
legally described in Exhibit A attached
hereto (hereinafter
referred to as the "Subject Property");
and
WHEREAS,
the Subject Property is located within the Proposed
Route 20 Tax Increment Financing District;
and
WHEREAS,
the Subject property is currently improved with a
number of buildings most of which are
vacant, dilapidated,
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obsolete, deteriorated, contain asbestos
and in a condition below
minimum code standards; and
WHEREAS,
the State of Illinois has issued a public notice
declaring the Subject Property as surplus
property and offering
the Subject Property for sale through a
sealed bid process; and
WHEREAS,
the Developer desires to acquire the Subject Property
and has submitted to the City a proposal
for the redevelopment of
the Subject Property providing for
Developer's corporate
headquarters offices consisting of
approximately 98,000 square
feet, Developer's warehouse and nut and
snack food processing
facilities consisting of approximately
960,000 square feet and
Developer's sales conference and tour
center to be developed on
the Subject Property as hereinafter
described; and
WHEREAS,
the City Council of the City has determined that
Developer's proposed redevelopment of the
Subject Property as
hereinafter described will further the
goals and objectives of the
Proposed Route 20 Tax Increment Financing
District; and
WHEREAS, Developer's proposal for the redevelopment of the
Subject Property will result in an increase
in the City's tax
revenues; and
WHEREAS, it
is unlikely that the proposed redevelopment of the
Subject Property will occur in the absence
of limited development
assistance from the City; and
WHEREAS, in
order to provide for the proposed redevelopment of
the Subject Property as hereinafter
described which will further
the goals and objectives of the Proposed
Route 20 Tax Increment
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Financing District and which will result in
increases in the City's
tax base the City has agreed to provide
certain development
assistance as hereinafter described;
and
WHEREAS,
the City of Elgin is a home rule unit authorized to
exercise any power and perform any function
pertaining to its
government and affairs; and
WHEREAS,
this Development Agreement resulting in furthering
and achieving the goals and objectives of
the Proposed Route 20 Tax
Increment Financing District and resulting
in increases in the
City's tax base are matters within the
government and affairs of
the City; and
WHEREAS,
the Developer desires to acquire the Subject Property
and redevelop the Subject Property in
accordance with the terms and
conditions provided herein.
NOW,
THEREFORE, for and in consideration of the mutual
undertakings as set forth herein, and other
good and valuable
consideration, the receipt and sufficiency
of which is hereby
acknowledged, the parties hereto agree as
follows:
1.
Recitals.
The foregoing recitals
are incorporated into
this agreement in their entirety.
2.
Purchase of
Subject Property from State. The City agrees
to attempt to purchase the Subject Property
from the State of
Illinois for a net purchase price of four
million dollars
($4,000,000). The acquisition of the Subject
Property from the
State of Illinois shall be pursuant to the
State of Illinois sealed
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bid process as provided in the State of
Illinois' public notice of
the sale of the Subject Property.
The bid form and other
bid
documents submitted by the City to the
State of Illinois in
connection with the bid for the proposed
purchase of the Subject
Property shall be in a form and with terms
which are agreed to
between the City and Developer.
The acquisition of the
Subject
Property from the State of Illinois shall
also be pursuant to a
sale agreement between the State of
Illinois and the City in a form
and with terms which are agreed to between
the State of Illinois,
the City and the Developer (such sale
agreement between the State
of Illinois and the City in a form and with
terms which are agreed
to between the State of Illinois, the City
and the Developer is
hereinafter referred to as the "Subject
Sale Agreement with the
State"). In the event the State of Illinois
and the City do not
enter into such a sale agreement for the
Subject Property on or
before June 20, 2004, then the Developer,
upon written notice to
the City, may elect to terminate this
Agreement and thereupon, with
the exception of Section 35 hereof, this
Agreement shall be deemed
cancelled and null and void and of no
further force and effect and
with no further liability of either party
hereunder. In the
event
the State of Illinois and the City do not
enter into such a sale
agreement for the Subject Property on or
before December 31, 2004,
and Developer has not previously terminated
this agreement pursuant
to the preceding sentence hereof, then
either party, upon written
notice to the other party, may elect to
terminate this agreement
and thereupon, with the exception of
Section 35 hereof, this
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agreement shall be deemed cancelled and
null and void and of no
further force and effect and with no
further liability of either
party hereunder. Developer agrees to and shall pay
on behalf of
the City to the State of Illinois the
purchase price and all other
costs associated with the acquisition of
the Subject Property from
the State of Illinois as may be specified
in the Subject Sale
Agreement with the State. Developer agrees to and shall
also
provide to the State of Illinois on behalf
of the City the five
percent (5%) cash, certified check or
personal check as required by
the State of Illinois bidding process or as
may otherwise be
provided in the Subject Sale Agreement with
the State.
Developer
shall pay on behalf of the City the balance
of the purchase price
to the State of Illinois in accordance with
the terms of the
Subject Sale Agreement with the State.
The Closing Date shall
be
as provided in the Subject Sale Agreement
with the State. To
the
extent permitted by the terms of the
Subject Sale Agreement with
the State the City shall terminate the
Subject Sale Agreement with
the State upon written direction from the
Developer to do so in the
event upon review of an ALTA survey for the
Subject Property and
the title commitment for the Subject
Property the Developer
determines that there are unpermitted
encroachments or title
exceptions. The City agrees not to amend the
Subject Sale
Agreement with the State without the
written consent of Developer.
The City agrees and shall deliver copies of
all notices sent or
received under the Subject Sale Agreement
with the State. In
the
event the City does not acquire title to
the Subject Property from
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the State of Illinois on or before December
31, 2004, and in the
event the Subject Sale Agreement with the
State may still be
terminated by the City without any
liability or penalty to the
City, then the Developer, upon written
notice to the City, may
elect to terminate this Agreement and
thereupon, with the exception
of Section 35 hereof, this Agreement shall
be deemed cancelled and
null and void and of no further force and
effect and with no
further liability of either party
hereunder. In the
event the City
does not acquire title to the Subject
Property from the State of
Illinois on or before December 31, 2005,
and Developer has not
previously terminated this agreement
pursuant to the preceding
sentence hereof, and in the event the
Subject Sale Agreement with
the State may still be terminated by the
City without any liability
or penalty to the City, then either party,
upon written notice to
the other party, may elect to terminate
this agreement and
thereupon, with the exception of Section 35
hereof, this agreement
shall be deemed cancelled and null and void
and of no further force
and effect and with no further liability of
either party hereunder.
To the extent permitted by the
terms of the Subject Sale Agreement
with the State, the City agrees to
terminate the Subject Sale
Agreement with the State upon written
direction from the Developer
to do so. The parties further agree that
upon Developer's written
direction to assign the Subject Sale
Agreement with the State to
the Developer that the City shall assign
its rights and obligations
of the Subject Sale Agreement with the
State to the Developer. Any
such assignment shall provide for the
Developer to assume all of
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the City's rights and obligations under the
Subject Sale Agreement
with the State and shall release the City
from any further
liability thereunder. The parties further understand and
agree
that prior to the City entering into the
Subject Sale Agreement
with the State that the Subject Sale
Agreement with the State shall
be subject to the approval of Developer's
Board of Directors and
lenders. Notwithstanding anything to the
contrary in this
agreement, in the event that either party
hereto has terminated
this agreement as permitted in the
agreement, or in the event the
Developer is in breach of a material term
of this agreement, and
Developer has failed to cure such breach
after receiving written
notice thereof as provided in Section 23 of
this agreement, the
City may terminate the Subject Sale
Agreement with the State to the
extent permitted under the Subject Sale
Agreement with the State.
In the event the Subject Sale Agreement
with the State is
terminated to the extent permitted under
the Subject Sale Agreement
with the State, then either the City or the
Developer, upon written
notice to the other party, may elect to
terminate this agreement
and thereupon, with the exception of
Section 35 hereof, this
agreement shall be deemed cancelled and
null and void and of no
further force and effect and of no further
liability of either
party hereunder. In the event this agreement is
terminated and the
Subject Sale Agreement with the State is
terminated the earnest
money deposit paid by the Developer to the
State under the Subject
Sale Agreement with the State shall be
refunded to the Developer.
In the event this agreement is terminated
and the City elects not
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to terminate the Subject Sale Agreement
with the State, the City
agrees to reimburse to the Developer the
earnest money deposit the
Developer has paid pursuant to the Subject
Sale Agreement with the
State. In the event this agreement is
terminated, and such
termination is not based upon a breach of
this agreement by either
party hereto, and at such point in time the
earnest money deposit
under the Subject Sale Agreement with the
State is not refundable,
then (1) if the City elects to proceed with
the purchase of the
Subject Property from the State, the City
shall grant to the
Developer a mortgage interest to the
Subject Property as provided
in Section 47 hereof in the amount of
Developer's earnest money
deposit paid pursuant to the Subject Sale
Agreement with the State,
or (2) if the City elects not to proceed
with the purchase of the
Subject Property from the State the earnest
money deposit paid by
the Developer pursuant to the Subject Sale
Agreement with the State
shall be deemed forfeited. Notwithstanding anything to
the
contrary in this agreement, Developer may
not and shall not
terminate this agreement unless at the time
of such termination the
Subject Sale Agreement with the State may
also still be terminated
by the City without any liability or
penalty to the City unless the
Developer agrees to and shall indemnify,
hold harmless and
reimburse the City for any such liability
or penalty.
3.
Conveyance
of Subject Property to Developer.
A. In the event the City does acquire title to the
Subject Property from the State of Illinois
as provided in the
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preceding section hereof, the City shall
thereafter convey the
Subject Property to the Developer by
recordable quit claim deed,
subject to: the same title exceptions,
encumbrances, conditions,
agreements and easements regarding the
Subject Property as existed
as of the conveyance of the Subject
Property from the State of
Illinois to the City; exceptions D, E, I,
M, N, T, O, P, Q, R and S
of Schedule B of the Chicago Title
Insurance Company title
commitment dated April 5, 2004, Order
Number 1410000532428KA; real
estate taxes; covenants, conditions,
encroachments and restrictions
of record; zoning laws, statutes and
ordinances, including, but not
limited to, matters relating to the Tax
Increment Allocation
Redevelopment Act and the Proposed Route 20
Tax Increment Financing
District; and the terms and obligations of
this Development
Agreement.
B. Developer hereby acknowledges and agrees that, except
for the Environmental Remediation of the
Subject Property as
defined and described in Section 11 hereof
and the Subject Asbestos
Abatement and Building Demolitions on the
Subject Property as
defined and described in Section 12 hereof,
it is acquiring the
Subject Property in its "as is" and "where
is" condition and that,
as of the closing(s) of the conveyance(s)
of the Subject Property
from the City to the Developer, the
Developer will be acquiring the
Subject Property with no direct recourse or
direct rights of action
against the City or the City's officials,
officers, employees,
agents, attorneys, personal
representatives, successors and
assigns.
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C. The parties hereto further understand and agree that,
other than the City cooperating at no cost
to the City with the
Developer in connection with the
Environmental Remediation of the
Subject Property as defined and described
in Section 11 hereof and
the Subject Asbestos Abatement and Building
Demolitions on the
Subject Property as defined and described
in Section 12 hereof, the
City shall have no responsibility for any
responsive corrective
actions or remediation of any Environmental
Condition (as
hereinafter defined) at, on or about the
Subject Property and that
the Developer hereby waives and releases
any claim for contribution
against, and covenants not to sue the City,
or the City's
officials, officers, employees, agents,
attorneys, personal
representatives, successors and assigns,
whether asserted directly
or indirectly, or whether in the nature of
an action for
contribution, third party proceeding or
other action or proceeding
whatsoever, for all damages, including,
without limitation,
punitive damages, liabilities, costs,
losses, diminutions in value,
fines, penalties, demands, claims, cost
recovery actions, lawsuits,
administrative proceedings, orders,
response action costs,
compliance costs, investigation expenses,
consultant's fees,
attorney's fees, paralegal fees and
litigation expenses
(collectively "Claims") arising out of or
in connection with any
Environmental Condition (as hereinafter
defined) on the Subject
Property or its migration to any other site
or location or arising
out of or in connection with any
Environmental Law (as hereinafter
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defined). The provisions of this Section 3C
shall not apply to any
fraud or willful misconduct committed by
the City.
D. The Developer for itself and its successors, assigns
and grantees, hereby covenants and agrees
that in consideration of
this agreement neither the Developer nor
its successors or assigns
or its grantees shall directly or
indirectly sue the City or the
City's officials, officers, employees,
agents, attorneys, personal
representatives, successors or assigns for
any Claims with respect
to, or arising out of any Environmental
Condition (as hereinafter
defined) or any other condition of, or
situation existing with
respect to the Subject Property or any
Environmental Law (as
hereinafter defined). The covenant and agreement of the
Developer
as set forth in the preceding sentence
shall hereinafter be called
the "Covenant Not to Sue". The parties hereto understand and
agree
that Developer's Covenant Not to Sue City
as stated herein does not
apply to any action taken by the Developer
to enforce any
contractual obligations of the City as may
be specifically set
forth in this agreement. The provisions of this Section 3D
shall
not apply to any fraud or willful
misconduct committed by the City.
E. "Environmental Condition" shall mean any condition or
situations existing on, under, at or about
the Subject Property,
the groundwater, subsurface water, and/or
the underground soil and
geologic conditions thereunder, as of the
date of the execution of
this agreement which (i) constitutes a
violation of any State of
Illinois or federal environmental law,
regulation or ordinance
and/or (ii) which does or might form the
basis of any public or
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private claim or cause of action for the
cleanup or remediation as
a result of the release, threatened
release, migration or the
existence of any contaminants, pollutants,
petroleum and petroleum
byproducts, crude oil or any fraction
thereof, chemicals, asbestos,
wastes or substance (including, without
limitation, regulated
substances and hazardous wastes and
hazardous substances as such
terms are commonly used and understood
within the framework of
existing federal and Illinois environmental
laws and regulations)
and/or (iii) are a release or a threat of
release of hazardous
substances or hazardous waste, and/or (iv)
are described or
included in any report provided by the City
to the Developer or in
any report generated by the investigations
of the Subject Property.
F. "Subject Property" shall mean the property described
in this agreement, and any and all
improvements thereon, and the
soils, subsoils, geologic formations and
the groundwater on and
under such property.
G. "Environmental Law" shall mean any federal or state
law, statute, regulation, rule, order,
decree, judgment or
direction concerning environmental
protection or health and safety
including, without limitation, the
Comprehensive Environmental
Response, Compensation and Liability Act of
1980, as amended, the
Resource, Conservation and Recovery Act, as
amended, the Toxic
Substances Control Act, as amended, and the
Illinois Environmental
Protection Act, as amended.
H. The "City" shall mean the City of Elgin and the City's
officials, officers, employees, agents,
attorneys, personal
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representatives, boards and commissions,
successors, assigns and
grantees.
I. The parties hereto further agree that in the event the
Subject Sale Agreement with the State and
the conveyance of the
Subject Property from the State of Illinois
to the City includes a
provision which requires the City to
indemnify and/or hold harmless
the State of Illinois and/or its
departments or agencies from
claims, damages or matters relating to
environmental conditions or
matters regarding or relating to the
Subject Property (hereinafter
referred to as the "State's Indemnity and
Hold Harmless Agreement")
that as part of the conveyance(s) of the
Subject Property from the
City to the Developer the City shall assign
to the Developer and
the Developer shall accept from the City
all of the obligations
under the State's Indemnity and Hold
Harmless Agreement.
J. The provisions of Sections 3B - 3J shall be deemed
remade as of the closing(s) of the
conveyance(s) of the Subject
Property from the City to the Developer and
shall survive such
closing(s) and shall but not be merged into
any closing documents
and shall be binding on the Developer and
its successors, assigns
and grantees and shall run with title to
the Subject Property.
4.
Survey.
The City has
previously provided Developer with
a survey of the Subject Property prepared
by Landmark Engineering
Group, Inc., dated March 3, 2004, Job No.
02-04-793. The
City
shall not be required to provide any other
survey of the Subject
Property.
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5.
Closing.
The time of closing of
the conveyance of the
Subject Property from the City to the
Developer shall be within
sixty (60) days following the occurrence of
the latter of: (1)
the
City's acquisition of the Subject Property
from the State of
Illinois; (2) the adoption of the Subject
Planned General
Industrial Zoning Ordinance for the Subject
Property referred to in
Section 9 hereof; (3) the Developer
completing the Environmental
Remediation of the Subject Property as
defined and described in
Section 11 hereof including the Illinois
Environmental Protection
Agency issuing pursuant to the State of
Illinois Site Remediation
Program a No Further Remediation Letter(s)
to a standard sufficient
to permit Developer's unqualified intended
use of the Subject
Property for a nut and snack food
processing facility; (4) the
Developer completing the Subject Asbestos
Abatement and Building
Demolitions on the Subject Property as
described in Section 12
hereof; (5) the establishment of the Route
20 Tax Incremental
Financing District referred to in Section
15 hereof; (6) the
approval of the expansion of the Enterprise
Zone to include the
Subject Property referred to in Section 17
hereof; (7) receipt by
the Developer or confirmation by the
Developer of all State of
Illinois incentives Developer is to receive
in connection with the
Subject Redevelopment of the Subject
Property; (8) the Subject
Property being available for full and free
possession by the
Developer including the State of Illinois
having completed its
relocation of its operations and employees
from Building No. 69 on
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the Subject Property; and (9) Developer's
review of updated title
and survey which conform to the provisions
of Section 3A hereof.
Notwithstanding the foregoing, Developer
may upon written notice to
the City elect to waive one or more of the
foregoing listed
occurrences as a condition of the closing
of the conveyance of the
Subject Property from the City to the
Developer. If such
conditions do not occur as provided in this
agreement and are not
waived, Developer may terminate this
agreement as provided in this
agreement upon written notice to the City.
The parties agree
that
the closing of the conveyance of the
Subject Property from the City
to the Developer may incur in phases in the
event that the
Environmental Remediation of the Subject
Property is conducted in
phases and the No Further Remediation
Letter(s) for the Subject
Property are issued by the Illinois
Environmental Protection Agency
according to such phasing and in the event
the Subject Asbestos
Abatement and Building Demolitions on the
Subject Property are also
conducted in phases. It is agreed that the
consideration for the
City's conveyance of the Subject Property
to the Developer shall
include Developer having paid the purchase
price for the Subject
Property to the State of Illinois.
6.
No Brokers
or Agents Involved in this Transaction.
Developer represents and warrants that it
has dealt with Interstate
Partners L.L.C. and NAI Hiffman as its
agents in connection with
this transaction and that it shall be
responsible for and shall pay
to Interstate Partners L.L.C. and/or NAI
Hiffman any and all fees,
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costs or expenses such entities may be due.
The City and
Developer
each warrant to the other that they have
dealt with no other
brokers or agents in connection with this
transaction. Each
party
agrees to indemnify, hold harmless and
defend the other party from
any loss, cause, damages or expenses
(including reasonable
attorney's fees) arising out of a breach of
the warranties
contained in this section.
7.
Title.
The City has
previously provided to the Developer
a title commitment for the Subject Property
issued by Chicago Title
Insurance Company dated April 5, 2004, Order No. 1410
000532428KA.
The City shall not be required to
provide any other title
commitment or title insurance for the
Subject Property.
8.
Prorations.
There shall be no
prorations for the
conveyance of the Subject Property from the
City to the Developer.
9.
Development
Application Petition for Rezoning. Within
sixty (60) days following the entry into
this agreement, the
Developer agrees to and shall submit to and
file with the City a
formal development application and petition
for rezoning for the
Subject Property (such development
application and petition for
rezoning of the Subject Property is
hereinafter referred to as the
"Development Application"). The City agrees to execute the
Development Application along with the
Developer. All costs
and
expenses relating to the Development
Application shall be the
responsibility of and shall be paid for by
the Developer.
Such
Development Application shall request the
rezoning of the Subject
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Property to a planned general industrial
zoning district and shall
provide for the redevelopment of the
Subject Property in general
conformance with the plans prepared by
Heitman Architects Inc.,
dated May 21, 2004 attached hereto as Group
Exhibit B, except as
same may be amended by the Developer during
the development review
and the zoning process provided such
changes do not alter the basic
nature of the Subject Redevelopment of the
Subject Property and are
in compliance with the terms of this
agreement and with an
ordinance reclassifying the redevelopment
property to a planned
general industrial zoning district, or as
directed by the City as
is necessary to comply with ordinances,
building codes or other
requirements of law (such development
proposal as set forth in
Group Exhibit B, as amended, is hereinafter
referred to as the
"Subject Redevelopment Plan" and the
redevelopment of the Subject
Property in conformance with the Subject
Redevelopment Plan is
hereinafter referred to as the "Subject
Redevelopment of the
Subject Property"). For the purposes of clarification,
and except
as the Subject Redevelopment Plan may be
amended as provided for in
this paragraph, the Subject Redevelopment
of the Subject Property
by the Developer shall in general
consist of Developer's
corporate
headquarters offices consisting of
approximately 98,000 square
feet, Developer's warehouse and processing
facilities consisting of
approximately 960,000 square feet and
Developer's sales conference
and tour center. The parties understand and agree
that the
foregoing square footage references are
preliminary and subject to
refinement by the Developer during the
development review process.
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The Development Application to be
submitted by the Developer to
the City for the City's review and approval
shall include all
materials and documentation customarily
required by the City for
such development applications and zoning
petitions and shall
include architectural elevations of the
buildings to be constructed
on the Subject Property showing and
describing the architectural
style and materials of such buildings,
preliminary engineering
plans, landscape plans, lighting plans,
signage plans, estimated
development schedules for the subject
development and such other
and further materials and documentation as
may be reasonably
required by the City. The City agrees to give prompt
consideration
to the Development Application.
(The planned general
industrial
zoning district ordinance for the Subject
Property authorizing the
use of the Subject Property for the Subject
Redevelopment of the
Subject Property is hereinafter referred to
as the "Subject Planned
General Industrial Zoning Ordinance for the
Subject Property").
In
the event the City Council of the City does
not adopt the Subject
Planned General Industrial Zoning Ordinance
for the Subject
Property in a form and with terms which are
acceptable to the
Developer on or before December 31, 2004,
then the Developer, upon
written notice to the City, may elect to
terminate this Agreement
and thereupon, with the exception of
Section 35 hereof, this
Agreement shall be deemed cancelled and
null and void and of no
further force and effect and with no
further liability of either
party hereunder. In the event the City Council of
the City does
not adopt the Subject Planned General
Industrial Zoning Ordinance
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for the Subject Property in a form and with
terms acceptable to the
Developer on or before December 31, 2005,
and Developer has not
previously terminated this agreement
pursuant to the preceding
sentence hereof, then either party, upon
written notice to the
other party, may elect to terminate this
agreement and thereupon,
with the exception of Section 35 hereof,
this agreement shall be
deemed cancelled and null and void and of
no further force and
effect and with no further liability of
either party hereunder.
10.
Redevelopment for
Subject Redevelopment of the Subject
Property.
A. It is
agreed and understood that the Subject
Property is being conveyed by the City to
the Developer for the
sole purpose of Developer redeveloping the
Subject Property with
the Subject Redevelopment of the Subject
Property as described in
this Agreement. The Subject Redevelopment of the
Subject Property
shall conform in all respects with the
Subject Planned General
Industrial Zoning Ordinance for the Subject
Property or as directed
by the City as is necessary to comply with
ordinances, building
codes or other requirements of law.
The Developer may in
its
discretion make modifications to the plans
for the Subject
Redevelopment of the Subject Property
provided such changes do not
alter the basic nature of the Subject
Redevelopment of the Subject
Property and are in compliance with the
Subject Planned General
Industrial Zoning Ordinance for the Subject
Property and the terms
of this agreement. All costs and expenses relating to
the Subject
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Redevelopment of the Subject Property,
including without
limitation, the Environmental Remediation
of the Subject Property,
the demolition of buildings on the Subject
Property, the Site
Preparation of the Subject Property and the
construction of various
improvements on the Subject Property, shall
be the responsibility
of and shall be paid by the Developer.
B.
Developer shall commence construction of the Subject
Redevelopment of the Subject Property
within a reasonable time
following the closing of first conveyance
of any portion of the
Subject Property from the City to the
Developer, weather
permitting. The Developer shall be deemed to
have commenced
construction of the Subject Redevelopment
of the Subject Property
upon initiation of the construction of the
foundation of the
building to be constructed on the Subject
Property. Upon
Developer
commencing construction of the Subject
Redevelopment of the Subject
Property Developer shall continue with and
complete such
construction in as expeditious a manner as
is reasonably
practicable. The Subject Redevelopment of the
Subject Property
shall be deemed completed when Developer
has completed construction
of all buildings and site improvements,
including without
limitation landscaping, and has obtained a
final occupancy permit
for the development and has occupied and
commenced operations at
the Subject Property. The City agrees to the extent
permitted by
law to authorize extended construction
hours for the Developer and
its contractors in connection with the
construction of the Subject
Redevelopment on the Subject Property.
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11.
Environmental.
The Developer shall at
its expense
provide for the investigation and if
necessary remediation of
environmental conditions on the Subject
Property pursuant to the
State of Illinois Site Remediation Program
and to obtain No Further
Remediation Letter(s) for an industrial
standard for the Subject
Property pursuant to the State of Illinois
Site Remediation Program
(415 ILCS 5/58 et seq., as amended).
The City agrees at no
cost to
the City to reasonably cooperate with the
Developer in the
Developer's efforts to obtain a No Further
Remediation Letter(s)
for the Subject Property including signing
as the record title
holder of the Subject Property
documentation relating to the State
of Illinois Site Remediation Program.
Any and all
proposed
documents to be executed by the City as the
owner of the Subject
Property in connection with the
Environmental Remediation of the
Subject Property (as hereinafter defined)
shall be submitted to the
City for the City's advance review and
approval. The City
shall
approve and sign such documents if such
documents are in compliance
with the requirements of the State of
Illinois Site Remediation
Program. Developer shall at its cost retain
such qualified
environmental consultants and contractors
as are necessary to
provide for the additional investigations,
reports, plans and
remediation as may be necessary or required
in connection with the
Environmental Remediation of the Subject
Property (as hereinafter
defined). Such consultants and contractors
shall be subject to the
City's advance approval which shall not be
unreasonably withheld.
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Developer shall proceed with such
additional investigations on the
Subject Property as may be necessary or
required and to thereafter
prepare a remediation objectives report and
a remedial action plan
for the Subject Property. In the event that after such
additional
investigations on the Subject Property the
Developer reasonably
determines that the proposed Environmental
Remediation of the
Subject Property or the asbestos abatement
on the Subject Property
referred to in Section 12 hereof can not be
reasonably accomplished
so as to allow for the Subject
Redevelopment of the Subject
Property as a nut and snack food processing
facility at a
reasonable cost and within a reasonable
time as determined by the
Developer, then Developer, within ninety
(90) days of the receipt
of such information, upon written notice to
the City, may elect to
terminate this agreement and thereupon,
with the exception of
Sections 35 and 46 hereof, this agreement
shall be deemed cancelled
and null and void and of no further force
and effect and with no
liability of either party hereunder.
Upon approval of
the
remediation objectives report and remedial
action plan for the
Subject Property by the Illinois
Environmental Protection Agency,
Developer shall cause any necessary
remediation identified in such
remediation objectives report and remedial
action plan to be
performed at its expense in order to obtain
a No Further
Remediation Letter(s) for an industrial
standard for the Subject
Property (such environmental
investigations, remediation and
obtaining a No Further Remediation
Letter(s) for an industrial
standard for the Subject Property pursuant
to the State of Illinois
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Site Remediation Program is hereinafter
referred to as the
"Environmental Remediation of the Subject
Property"). The
Environmental Remediation of the Subject
Property shall be
conducted by the Developer in compliance
with all applicable legal
requirements of law including, but not
limited to, the provisions
of the State of Illinois Site Remediation
Program at 415 ILCS 5/58,
et seq., as amended. The Environmental Remediation of
the Subject
Property shall be deemed to be completed
when the Illinois
Environmental Protection Agency has issued
No Further Remediation
Letter(s) for an industrial standard for
the entire Subject
Property and such No Further Remediation
Letter(s) are recorded.
The No Further Remediation Letter(s) for an
industrial standard for
the Subject Property referred to herein may
contain conditions but
such conditions shall not prohibit or
unreasonably restrict or
interfere with Developer's intended use of
the Subject Property
consisting of the Subject Redevelopment of
the Subject Property as
a nut and snack food processing facility.
The Environmental
Remediation of the Subject Property may be
conducted in phases and
the No Further Remediation Letter(s) for
the Subject Property may
be obtained from the Illinois Environmental
Protection Agency in
phases. Developer shall commence with such
Environmental
Remediation of the Subject Property within
a reasonable time
following the City's acquisition of the
Subject Property from the
State of Illinois and shall complete same
as soon as is reasonably
practicable. The City agrees to allow the
Developer and its
contractors access to the Subject Property
prior to the conveyance
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of the Subject Property from the City to
the Developer to allow
Developer to proceed with such
Environmental Remediation of the
Subject Property. In the event the Developer is not
able to obtain
a No Further Remediation Letter(s) for an
industrial standard for
the Subject Property from the Illinois
Environmental Protection
Agency on or before June 30, 2005, then the
Developer, upon written
notice to the City, may elect to terminate
this Agreement and
thereupon, with the exception of Sections
35 and 47 hereof, this
Agreement shall be deemed cancelled and
null and void and of no
further force and effect and with no
further liability of either
party hereunder.
12.
Asbestos
Abatement and Demolition. The Developer shall
at its expense to provide for the removal
of asbestos and the
demolition of th
