HomeMy WebLinkAboutRESOLUTIONS-1993-012-R-93•
01-06-93
12-R-93
A RESOLUTION
Authorizing the City Manager to
Enter Into the Reimbursement Agreement
Concerning the Possible Howard Street Barrier
WHEREAS, the City of Evanston has approved a
Redevelopment Agreement with the Dayton Hudson Corporation, a
Minnesota corporation, and the Howard Hartrey Limited Partnership
for the redevelopment of the "Bell and Howell" property into a
shopping center; and
WHEREAS, the shopping center property is located north
of the boundary line between the City of Evanston and the City of
• Chicago; and
WHEREAS, the City of Chicago at the March 25, 1992
council meeting expressed consideration of the erection of a
traffic barrier south of the center line of Howard Street from
100 feet east of Francisco Avenue to Kedzie Avenue, thereby
affecting access to the shopping center.
WHEREAS, it is in the best interest of the City of
Evanston that the development of the shopping center occur and
that no Howard Street barrier be erected.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That the City Manager is hereby
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12-R-93.
authorized and directed to execute the •
Reimbursement Agreement which is in substantial conformity with
the agreement marked as Exhibit A attached hereto and
incorporated herein by reference. The City Manager is authorized
to execute said agreement only after its execution by appropriate
representatives of the Bell and Howell Corporation.
SECTION 3: This Resolution shall be in full force
and effect from and after the date of
its passage and approval in the manner provided by law.
Mayor
ATTEST• „
City Clerk •
Adopted: \/Gh ��� , 1993
2 is
AGREEMENT
In the event the City of Chicago erects prior to December 1,
1996, a traffic barrier (hereinafter "wall") south of the center
line of Howard Street, to impede access to and from the property
to the North which will be developed pursuant to a redevelopment
agreement with the City of Evanston, the City of Evanston will
reimburse Bell & Howell one half of any liquidated damages paid
by Bell & Howell to Dayton Hudson under the terms of the
purchase/sale agreement with Dayton Hudson (marked as Exhibit A
and incorporated herein by reference); such reimbursement shall
not exceed two million dollars and shall be payable in equal
annual installments over seven years. The first installment shall
be payable 60 days after the City has received notice from Bell
& Howell with a copy of receipt that Bell & Howell has made
payment to Dayton Hudson and each subsequent payment shall be
made on the succeeding anniversary of said payment.
Reimbursement shall be made only upon the occurrence of the
following additional conditions.
1. The Dayton Hudson Corporation, pursuant to the terms of a
redevelopment agreement with the City (marked as Exhibit B and
incorporated herein by reference) opens the Target store
described therein and the City shall have received a non -
appealable decision on any lawsuit if filed that finally
determines that the Wall may be built or if built, may remain and
the City of Chicago erects prior to December 1, 1996, the "wall"
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and (a) actual sales taxes paid by the Target store for the 12-
month period commencing upon the opening or for any 12-month
period subsequent to the erection of the wall, whichever is
applicable, was 20% below Dayton Hudson's pro forma sales tax
estimates as previously presented to the City on September 3,
1992, or (b) the real estate property for retail use
decreases -in value at least 10% based on (i) the sale price in
the Purchase/Sale Agreement between Dayton Hudson and Bell &
Howell, adjusted for monthly changes in the Chicago, All Urban
Consumers Price Index over January, 1992, and (ii) the average of
two appraisals on the entire property (assuming the erection of
the Wall) by licensed Illinois appraisers, one selected by Bell &
Howell, the other selected by the City; provided however, if the
two appraisals are more than 10% apart, the two appraisers shall
select a third independent appraiser (or in the absence of the e
ability of the two appraisers to select a third appraiser, 4--he
third appraiser will be selected by judicial process) and the
value determined by the third appraiser will be averaged with the
value of any other appraisal which is within 10% and that
average shall be the "real estate property value;" provided
further, if none of the appraisals are within lob of any other,
the three appraisals will be averaged together and that average
shall be the "real estate property value." OR
2. The Dayton Hudson Corporation does not open the Target
store described in Exhibit B, the city of Evanston will pay Bell
Howell the lesser of one-half of the amount payable by Bell &
owell to Dayton Hudson under its Purchase/Sale agreement and
$2.0 million; provided however, if the City undertakes legal
action necessary and appropriate to enforce Dayton Hudson's
obligations under the redevelopment agreement, (Exhibit B) and
the final resolution of such enforcement results in a payment by
Dayton Hud=:= or its representatives of a settlement or a non -
appealable judicial decision, the City's obligation to reimburse
Bell & Howell shall be limited to one half of said proceeds,
after first deducting all legal costs and the City's interest
expense on the bonds to be issued pursuant to the redevelopment
agreement. In any event, such reimbursement shall not exceed the
lesser of one half of the amount paid by Bell & Howell to Dayton
Hudson or two million dollars. Such reimbursement shall be made
60 days after receipt by the City of the aforesaid payment from
Dayton Hudson or its representative.
BELL & HOWELL COMPANY, a Delaware
corporation
By: Date:
Its:
CITY OF EVANSTON, ILLINOIS
By: Date:
Its:
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and Seller may be directed by Purchaser to convey fee simple tiue to $ .portion of
the Property to Purchaser and a _portion of...
-TroQerty, along with fee �np1e
title to all improvemenis'locatad oa the oiitlre Property, to MILP, or related entity.
by goo4, sufficient and• recotbaDte warraary deed subject only to the applicable
- Permitted Title Exceptions (as defined in the Agreement). in no event, however,
shall exkution and delivery of two deeds rather than one result in say additional
suet or to Senor.
: D t + extended 3, The Due iligence Period (as defined in the Agreement) .& tended to
1993. Accordingly, the date "January 3, I993".ia-Section 11.01--
of the agreement is bareby deleted. --and .replaced with- the date "
1993". - -
•
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4. The last sentence of Section 12.01 of the Agreement is hereby deleted
In its eqitirety and the following is Wtstituted therefor. "Such termination agrees
meats shalt provide for vacation of the Property no latter than the date that is ti9e
(3) to following the date Purchaser deppoeits the Rdditional $4,000,000.00
pursuan to Saeticn 12.04 "
Section 12.02 of the Agreement is hereby deleted in its entirety- end
the following is substituted therefor. *If Seller fails to enter into such termination
agreements with all of the Tenants on or before the date that -is one (1) month
fouowing the date Purchaser deposits the additional $4,000,00.00 pursuant to
Section 22,04, Purchaser may, at its option, elect to terminate ttia Agreement by
notice Oven to Seller at any time after said date, in which event the Deposit and
all interest. earned thereon shah forthwith be returned to Purchaser, and thereupon
neither party shall have any further rights or obLgatfons hereunder."
a. Section 12.04 of the Agreement is hereby deleted in its entirety and
the fa is substituted therefor; "Within t__,) days after ezpirattaa of
the Due Diligsnoe Period and provided Purchaser has not eleetsd to terminate this
Ag t, Purchaser shall place an additional $4,000,000.00, in cash or irrevocable
and uno4nditional letter or letters of credit in form and issued by a bank or banks
reasonaatayy acceptable to Seller, in the strict joint order escrow as provided in
1 Section 4.01.11
?- Section 12.03 of the Agrcenaent is hereby deleted in its entirety and
the io wing is substituted therefor: "In the event any of the Tenants fail to
vacate Property on or before the date that is five (5) months following the date
Purchaser deposits the additional $4,000,000.00 pursuant to Section 12.04 (the
"Require l Vacation Date"), Seller shall be deemed to be in default under thi8
Agreement, in which event Purchaser shalt have its remedies as described in Section
18.02, including, without UMItatiOn, the right to terminate this Agreement, in which
event Seller shall reimburse Purchaser for all costs and expenses incurred try
purelwar in coaawtion with ties l gremaent and t;ae Property; provided, however,
the Regdired Vacation Date shall be eateaded for up to two (2) weeks in the event
Tenants tail to vacate the Property for causes c beyond the reasonable otttrol of
Seller; p�&Voided further, however, if a:ter said two (2) week extension for causes
beyond forrls uo tr an additional two (2) weeks for Dcauses tim tbeyond o f ail tvacate
therreasocable
Property, ,
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and Seller may be directed by Purchaser,.to :convey "f a simple title to a port =
the Property to Purah�er_hand l-port.oa of the Property, along with tee aamn,
tltle....to *U,.3apr6vW=t8 located an the entire Property, to HHLP, or related anti.
w "bY good, a,tticieat and. recordable warranty deed subject only to the appucat
Permitted Title Exceptions; (as defined in the Agreement), in to event, Nerve
shall sxiecution and delivery of two deeds rather than one result in any addidm
CM or II e to sallmr.
l31 The Due Diligence Period (as defiaed its the Agreement) is extended t,
I , 1993. Accordls ly, _the date "January 3, i993" its Section 11.01
of the 1greement is. _hereby. deleted and replaced with the data "
1993".
4. The last sentence of Section 12.01 of the Agreement is hereby deW and
in its ty and the fallowing is substituted therefor. "Such terminan egret
meats shall provide for vacation of the Property no later than the date that bs five
(3) mfallowing the date Purchaser deposits the additional $4,000,000.00
pursuaa to Section 12.04."
5j Section 12.02 of the Agreement is hereby deleted in its entirety end
the foll�%t4 is substituted therefor•. *If Seller fails to enter into such terminatian
agreements with all of the Tenants on or before the date that -Is one (1) =oath
foitowing the date Purchaxr deposits the additional $4,000,00.00 pursuant to
Section 12.04, Purchaser may, at Its option, elcet to terminate this Agreement by
notice given to Seller at any time after said date, in which event the Deposit and
all Interest. earned thereon shall forthwith be returned to Purchaser, and tbereup=
neither ^ty shall have any further rights or obLgations hereunCer."
9. Section 12.04 of the Agreement is hereby deleted in Its entirety to
the fol1cwing is siurstituted therefor: "Within _ (__j days meter expiration of
the Due, Diligazoe fariod and provided Purchaser has not electod to terminate this
Agreement, Purchaser shall plane an additional $4,000,000.00, in cash or irrevocable -
and unc4nditionai tatter or letters of credit in form and issued by a bank or banks
reasonaWy acceptable to Seiler, in the strict joint order escrow as provided in
Section 14.01."
7. Section 12.03 of the Agreement is hereby deleted in its entirety and
the to wing Is substituted therefor: "in the event any o2 the Tenants fall to
vacate Property on or before the date that is live (5) months fallowing the date
Purchaser deposits the eddttionai $4,000,000.00 pursuant to Section 12.04 (the
"Re(Mred Vacation Date"), Seller shalt be deemed to be in default under this
Agreement, in which event Purchaser shall have its remedies as dworibed in SectIm
15.02, including, without limitation, the right to terminate this Agreement, in which
event Seller shall reimburse Purchaser for all costs and expenses incurred by
Purchased in coaneedon with this Agreement and the Property; provided, however,
the Regciired Vacation Date shall be extended for up to two (2) weeks in the event
Tenants tail to vacate the Property for causes beyond the remonahle control of
Seller; pfurther, however, if after said two (2) week exterAlon for causes
beyond .1 ellerss reasonabl control the Tenants continue to fail to vacate the
Property for Pp to an additional two (2) weeks for causes beyond use reasoaaMe
Tn o I13 !01105/93 1159
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I ti=tom c%_!-i F.Bc WC?± qv :gT 266T-z-t�,�
of construction of the Howard Street Wall and each subsequent paysaeut,•-shall
be made on the succeeding saaiversaries of ,said first payment. - Ths foregoing
covenant of Seller shall wa mvive - the - chasing of the transaction contemplated
`
4ereby._. Notwithstanding • the foregoing, Sellers obligation to pay Purchaw
amy installment of the $4,000►000.00 liquidation damages shall be suspended
any period that construction of the Howard Street wall is halted as
lt of a temporary restraining order, injunction or other ,ju4lelal order
rdir
ofter the Howard Street Wa U sa constructed Setter, PurchaSer, MM
City of Evanston is successful in causing the Howard Street Wall 'Co
tie removed, then Sellers obligation to pay Purchaser any subsequent
1�stallments of the $4,000,000.00 liquidated damages.shall terminat after
such rer^"Wal of the _ Howard Street Stall, construction of another and
w Street Wa_U' is commented within said five (5) year period following the
j ,•
C losing Date, then Seller's obligation to pay any remaining balance of the
$�,000,000.00 liquidated damages shall be rdnstated.A ANotwithstardiag any
s tyapensioo or termination of Seller's ob2gation to gay said installments of
ui,dated damages, Purchaser shall in no event be required to refund any
eviously paid instaumeats, it being acknowledged by Seller that said
R
yments are non-refundable.
30.03 ;T.atler gf C_redlt. To secure payment of the Liquidated damages
:
provided for under Section 30.02, Seller shall deliver to Purchaser a Letter
o� Credit (as hereinafter defined) in accordance with this Section 30.03.
(a) If construction of .the Howard Street Wall is commenced
arid. consequently Seller is obligated to pay Purchaser liquidated damages
under Section 30.02, simultaneously with payment of the first
$1,000,000.00 installment, Seller shall deliver to Purchaser a Letter of
Credit in the amount of $3,000,000.00 as security for the full and
faithful performance by Seiler of its obligations under Section 30.02.
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(b) If required under subsection (a) above, Sever shall deliver
'F to Purchaser an unconditional and irrevocable letter of credit ("Letter
I of Credit^) in the amount of S3,000,000.00, in form and issued by a
bank reasonably satisfactory to Purchaser,, as security for tha full and
faithful performance by Seller of its obligations under Section 30.02.
The first such Letter of Credit shall expire no earlier than the first
anniversary of the first $1,000,000.00 payment under Section 30.02 and
all subsequent replacement Letters of Credit shalt expire no earlier
{ than twelve (12) months from the expiry date of the then outstard
and expiring Letter of Credit. Seller shall deliver replacement Letters
of Credit to Purchaser no later than thirty (30) days prior to the
expiry date of the then outstanding and expiring Letter of Credit.
Failure by Seller to deliver any replacement letter of Credit as
j required above shall entitle Purchaser to draw under the outstanding
' Letter of Credit and to retain the entire proceeds thereof for
application as the security for Seller's obligation under Section 30.02.
Each Letter of Credit shall be for the benefit of Purchaser and its
successors and assigns and shall entitle Purchaser or its successors or
` assigns to draw from time to time under the Letter of Credit in
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of construction of the Howard Street wall and —each Subsequent 1paent a,
be made on the succaanniversari®s of said first payment. The forage
covenant of Seller Survive the alesing of tho transaction contempla
1}sreby. Notwithstaadiag • the foregoing, Seller's obligation to pay Purehsr
any installment of the $4,000,000.00 liquidation damages shall be suspeac,
any period that construction of the Howard Street wa11 is hafted
result of a temporary restraining order, Injunction or other judicial Ord
d if of ter the Howard Street Wall is constructed Setter, Purchaser, HHI
the City of Evanston Is successful in causing the Howard Street WAU t
be removed, then Sellers Obligation to -.pay 'Purchaser any subse
iWailments of the $4,000,000.00 liquidated damages shall termina .
sash_rer-wal of -the Howard Street wall, construction of arothevarc
Street Wall Is commenced within said Live (5) year period following ttm
�iosing Date, then Seller's obligation to pay any remaining balance of the
54,000,000.00 liquidated daEmages shall to relastated.lj ,I��totwithstandiag any
8Siwsion or termination of Seller's obligation to pay said trrtallments of
h' uidated damages, Purchaser shall in no event be required to refund any
eviouaty paid iastatllraeats, it being acknowledged by Seller that said
yments are non-refundahta.
30.03 J alter of Credit. To secure payment of the liquidated damages
provided for under Section 30.02, Sewer shall deliver to Purchaser a .Letter
o� Cre&.t (as hereinafter defined) in accordance with this Section 30.03.
(a) if construction of .the Froward Street Wall is commenced
and. consequently Setter is obligated to pay Purchaser liquidated damages
under Section 30.02, simultaneously with payment of the firs;
$1,000,000.00 installment, Seder shall deliver to Purchaser a LerterAd
Credit it the amount of $3,000,000.00 as security for the full
faithful performance by Seller of its obligations under Section 30.0 .
=_.
(b) if required undo. subsection (a) above, Seller shah deliver
- to Purchaser an unconditional and irrevocable letter of credit ("Letter
of Credit") in the amount of S8,000,000.00, in form and issued by a
bank reasonably satisfactory to Purchaser,. as Security for the full and
faithful performance by Seller of its obligations under Section 30.02.
The first such Letter of Credit shall expire no earlier than the first
anniversary of the. firs, $1,000,000.00 payment under Section 30.02 sod
all subsequent replacement Letters of Credit shell, expire no earlier
than twelve (12) months from the expiry date of the then outstanding
and expiring Letter of Credit. Se::e.* shall deliver replacement Letters
of Credit to Purchaser no later than thirty (30) days prior to the
expiry date of the then outstanding and expiring Letter of Credit.
Failure by Seller to deliver any replacement letter of Credit as
required awve shall entitle Purchaser to draw under the outstanding
Letter of Credit and to retain the entire proceed thereof for
i applicatio , as the security for Seller's obligation under Section 30.02.
Each Letter of Credit shalt be for the benefit of Purchaser and Its
successors and assigns and shall entitle Purchaser or its succamors or
assigns to draw from time to time under the Letter of Credit in
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