HomeMy WebLinkAboutORDINANCES-2016-062-O-165/19/2016
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AN ORDINANCE
Authorizing the City Manager to Execute a Lease of City -Owned Real
Property Located at 860 Chicago Avenue
WHEREAS, the City of Evanston owns certain real property located at 860
Chicago Avenue, Evanston, Illinois 60202, which is improved with a single story building
and operated by a business selling magazines and newspapers commonly known as
the "City Newsstand" (the "Property"); and
WHEREAS, City Newsstand, Inc., an Illinois corporation, has operated its
commercial business on the Property since 2000 and seeks to renew its lease; and
WHEREAS, the City Council has determined that the Property is not
necessary to City operations and leasing the Property to City Newsstand for the
operation of a newspaper and magazine sales business is in the City's best interests,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The foregoing recitals are hereby found as fact and
incorporated herein by reference.
SECTION 2: Pursuant to Subsection 1-17-4-1 of the Evanston City Code
of 2012, as amended (the "City Code"), the City Manager is hereby authorized and
directed to execute, on behalf of the City of Evanston, the Lease Agreement by and
between the City of Evanston, as landlord, and City Newsstand, Inc., as tenant. The
Lease Agreement shall be in substantial conformity with the Lease Agreement attached
hereto as Exhibit 1" and incorporated herein by reference.
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SECTION 3: If any provision of this ordinance or application thereof to
any person or circumstance is ruled unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 5: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 6: This ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
Ayes: �0
Nays: Y�
Introduced: a%.A a,S , 2016 Approved:
Adopted: I�V�Q �,� ���, 2016 �� ��_� Ci O► 12016
Eliz th B. Tisdahl, Mayor
Attest: Ap oved as o for
Rodney Greene, 0. rty Cle c W. Graht Farrar, Corporation Counsel
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EXHIBIT 1
LEASE AGREEMENT
-3-
LEASE
between
CITY NEWSSTAND, INC.
an Illinois corporation
as Tenant
and
CITY OF EVANSTON
An Illinois municipal corporation,
as Landlord
860 CHICAGO AVENUE
EVANSTON, ILLINOIS 60202
498175320
TABLE OF CONTENTS
1. PROPERTY..................................................................................................................................1
2. TERM............................................................................................................................................. 1
3. RENT.............................................................................................................................................
1
4. FIXTURES....................................................................................................................................
2
5. USE OF PROPERTY..................................................................................................................
2
6. MAINTENANCE........................................................................................................................2
7. PAYMENT OF TAXES.............................................................................................................
3
8. DAMAGE AND DESTRUCTION.........................................................................................
4
9. INSURANCE................................................................................................................................
5
10. INDEMNIFICATION............................................................................................................... 6
11. EMINENT DOMAIN................................................................................................................ 6
12. UTILITIES.................................................................................................................................... 7
13. COVENANTS AGAINST LIENS........................................................................................... 8
14. ASSIGNMENT AND SUBLETTING.................................................................................... 8
15. NOTICES.......................................................................................................................................8
16. RIGHT TO GO UPON PROPERTY..................................................................................... 9
17. DEFAULT...................................................................................................................................10
18. REPRESENTATIONS AND WARRANTIES....................................................................12
19. HOLDING OVER; END OF TERM...................................................................................12
20. REMEDIES ARE CUMULATIVE........................................................................................13
21. QUIET POSSESSION..............................................................................................................13
22. ALTERATION...........................................................................................................................13
23. HAZARDOUS SUBSTANCES...............................................................................................13
24. GENERAL CONDITIONS....................................................................................................15
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City of Evanston Lease — 860 Chicago Avenue
LEASE
THIS LEASE AGREEMENT is made by and between CITY OF EVANSTON
("Landlord"), an Illinois municipal corporation and CITY NEWSSTAND, INC., an Illinois
corporation ("Tenant").
WITNESSETH:
1. PROPERTY
Landlord is the fee simple owner of certain real property at 860 Chicago Avenue, Evanston, Illinois
60202, legally described in Exhibit "A" attached hereto and incorporated herein (the "Property").
The Property is .053 acres total improved with a one-story commercial building. Landlord does
hereby demise and lease the Property to Tenant, for Tenant's exclusive use and control, together
with all appurtenances thereto, pursuant to the terms and conditions of this Lease.
2. TERM
(a) Primary Term. Subject to the provisions of this Lease, the "Primary Term" shall be a 5-year
term and commence on the 1st day of January, 2016 ("'Commencement Date") and shall end at
11:59 p.m. on the 31" day of December, 2021, except as otherwise terminated as provided herein.
The lease is back dated to January 1, 2016 and the Landlord has already received the 2016 annual
rent.
(b) Extended Terms. Provided Tenant is not otherwise in default beyond any applicable cure
period, Tenant shall have one option (individually, an "Extension Option"), to renew the Lease for
an additional five years (each an "Extension Term") upon the same terms, covenants and
conditions as herein provided. The Extension Option shall be exercised by Tenant delivering to
Landlord written notice of such election, not less than one hundred twenty (120) days prior to the
expiration of the Primary Term. The Primary Term together with any Extension Term is referred to
herein collectively as the "Term".
3. RENT
(a) Primary Term. The Rent for lease of the Property for the first year of the lease is Seven
Thousand Six Hundred Forty -Five and 04/100 Dollars ($7,645.04). The Tenant previously remitted
the lump sum payment for the 2016 annual rent. The Rent for the remaining four years of the
Lease (2017 — 2021) will be payable in lump sum payments; the yearly payment due on or before
January 1". The Rent will increase annually by the Consumer Price Index (CPI) and the City will
invoice the Tenant on or before November 15`h with the rate based on CPI.
(b) Extensions. The Rent set forth in Section 3(a) will also be adjusted each year based on CPI.
(c) Late Fee and Interest. In the event any sums required hereunder to be paid are not received
by Landlord on or before the date the same are due, then, Tenant shall on demand pay, as additional
rent, a service charge of Two Hundred Dollars ($200). In addition, interest shall accrue on all past
due sums at an annual rate equal to the lesser of six percent (6.0%) per month and the maximum
legal rate. Such interest shall also be deemed Additional Rent.
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City of Evanston Lease — 860 Chicago Avenue
(d) Time and Place of Payment. Tenant shall pay to Landlord the Rent in advance, in equal
monthly installments, and without prior notice, setoff (unless otherwise expressly permitted herein)
or demand, except as otherwise specifically provided herein, on or before the first (1') day of each
calendar month during the Term hereof to: City of Evanston, Attn: Collector's Office, 2100 Ridge
Avenue, Evanston, IL 60201.
4. FIXTURES
All trade fixtures and equipment installed by Tenant in or on the Property (including furniture,
satellite communication dish and equipment, registers, other equipment, shelving and signs) shall
remain the property of Tenant and Tenant may remove the same or any part thereof at any time
prior to or at the expiration or earlier termination of this Lease. Tenant shall repair at its own
expense any damage to the Property caused by the removal of said fixtures or equipment by
Tenant. This provision shall expressly survive the termination or expiration of this Lease.
5. USE OF PROPERTY
(a) Permitted Use. Tenant shall have the right, subject to applicable Federal, State and local laws
and the terms of this Lease, to use the Property for the following purpose(s): to run a newspaper
and magazine sales and other related functions to run the business (herein collectively "Permitted
Use").
(b) Tenant Exclusive Use of Property. Landlord covenants and agrees that it has no rights to use,
modify, alter or lease any portion of the Property other than as expressly provided in this Lease.
(c) No Continuous Operation. In the event Tenant has ceased operating its business for a
continuous period of thirty (30) days, following written notice by Landlord providing a thirty day cure
period, Landlord has the right to recapture the Property and, upon such recapture, this Lease shall
terminate and neither party shall be further obligated hereunder, except to the extent any such
obligation hereunder is expressly specified herein to survive the termination of this Lease.
6. MAINTENANCE
(a) Tenant accepts the Property in as -is condition, and acknowledges that the Landlord has
made no representations to the condition or has made any repairs to same except as provided in this
Lease. The Landlord or Landlord's staff or other representatives have made no representations or
assurances that it will alter or remodel the Property and all renovations will be at Tenant's sole cost
and expense. Tenant is responsible for all maintenance and repair of the Property.
(b) Maintenance Responsibilities of Tenant:
(i) HVAC system for the Property, interior sprinkler and fire safety system within the
Property, and other interior fixtures.
(ii) All regular refuse must be disposed of in appropriate containers to be provided by
the Landlord. Tenant cannot dispose of construction building materials in the standard refuse
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City of Evanston Lease — 860 Chicago Avenue
containers and must arrange for special pick-ups and containers for said materials. A refuse
container for regular refuse will be located at the Property in reasonable proximity to the Property.
Tenant will contract to have trash hauled from such container with reasonable frequency. Tenant
is responsible for snow, ice removal and leaf removal and general upkeep of the exterior directly in
front and in back of the Property.
(iii) The Tenant will at all times maintain all of the Property in a clean, neat and orderly
condition. The Tenant will not use the Property in a manner that will violate or make void or
inoperative any policy of insurance held by the Landlord. The Tenant shall pay the Landlord for
overtime wages for staff and for any other related expenses incurred in the event that repairs,
alterations or other work in the Property required or permitted hereunder are not made during
ordinary business hours at the Tenant's request.
(iv) Tenant will keep the interior non-structural portions of the Property, including all
interior, non-structural walls, surfaces and appurtenances (other than systems and any other items
that Landlord is required to maintain pursuant to Section 7(c), in good repair. Tenant shall be
responsible for repairs, damages and losses for damages sustained outside the Property attributable
to Tenant's negligence or intentional misconduct. Tenant agrees to use good faith efforts to report
such damage in writing to the Director of Public Forks or his designee, by the next City of
Evanston business day, after discovery of such damage by Tenant.
(v) Tenant shall yield the Property back to Landlord, upon the termination of this Lease,
whether such termination shall occur by expiration of the Term, or in any other manner whatsoever,
in the same condition of cleanliness and repair as at the date of the execution hereof, loss by casualty
and reasonable wear and tear accepted. Except to the extent any of the following is Landlord's
obligation pursuant to Section 7(c), Tenant shall make all necessary repairs and renewals upon
Property and replace broken fixtures with material of the same size and quality as that broken. If,
however, the Property shall not thus be kept in good repair and in a clean condition by Tenant, as
aforesaid, Landlord may enter the same, or by Landlord's agents, servants or employees, without
such entering causing or constituting a termination of this Lease or an interference with the
possession of the Property by Tenant, and Landlord may replace the same in the same condition of
repair and cleanliness as existed at the date of execution hereof, and Tenant agrees to pay Landlord,
in addition to the rent hereby reserved, the expenses of Landlord in thus replacing the Property in
that condition. Tenant shall not cause or permit any waste, misuse or neglect of the water, or of the
water, gas or electric fixtures.
(vi) Tenant will keep is leasehold improvements in compliance with all laws and
regulations during the entire Term of this Lease, except for repairs required of the Landlord to be
made and damage occasioned by fire, hurricane or other causes as provided for in this Lease.
7. PAYMENT OF TAXES
(a) Definition. For purposes hereof, "Taxes" shall mean real property taxes and
"Assessments" shall mean assessments, general and special, foreseen and unforeseen, for public
improvements levied or assessed against the Property and the improvements thereon for that
portion of the Term from and after the Property PIN Creation Date (as defined herein).
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City of Evanston Lease — 860 Chicago Avenue
(b) Payment. Landlord represents and warrants to Tenant that the Property has two PINs, one
for the leasehold and one for the underlying property. The first PIN, 11-19-424-008-8001, is for the
underlying property and tax exempt. The second PIN, 11-19-424-008-8002, is the Leasehold PIN
and Tenant is responsible for payment of all Taxes and Assessments before any fine, penalty,
interest or cost may be added thereto, become due or be imposed by operation of law for the
nonpayment of late payment thereof for the Leasehold PIN.
(c) Prorations. At the end of the Term, Taxes and Assessments to be paid by Tenant shall be
prorated based on the portion of the fiscal tax year in which this Lease is in effect.
8. DAMAGE AND DESTRUCTION
(a) Casualtv. If the Property shall be damaged by fire or other casualty ("Casualty"), Landlord
shall, within one hundred eighty (180) days after such damage occurs (subject to being able to obtain
all necessary permits and approvals, including, without limitation, permits and approvals required
from any agency or body administering environmental laws, rules or regulations, and taking into
account the time necessary to effectuate a satisfactory settlement with any insurance company) repair
such damage at Landlord's expense and this Lease shall not terminate. If the foregoing damage is
due to the negligence or willful misconduct of Tenant, then Landlord shall look first to the insurance
carried by Tenant to pay for such damage. Notwithstanding (i) any other provisions of the Lease to
the contrary, and (ii) any legal interpretation that all improvements become part of the realty upon
being attached to the Property, following a Casualty, the Landlord shall be responsible only for
restoring the Property to building standard levels of improvement, and the tenant shall be
responsible for insuring and replacing the above building standard levels of improvement, and the
tenant shall be responsible for insuring and replacing the above building standard tenant
improvements or betterments that made the Property "customized" for Tenant's use. Customized
improvements include, but not limited to: bullet proof glass, alarm censored doors, wood flooring,
and custom cabinetry. Except as otherwise provided herein, if the entire Property are rendered
untenantable by reason of any such damage, all Rent and Additional Rent shall abate for the period
from the date of the damage to the date the damage is repaired, and if only a part of the Property are
so rendered untenantable, the Rent and Additional Rent shall abate for the same period in the
proportion that the area of the untenantable part bears to the total area of the Propert< , provided,
however, that if, prior to the date when all of the damage has been repaired, any part of the Property
so damaged are rendered tenantable and shall be used or occupied by or through Tenant, then the
amount by which the Rent and Additional Rent abates shall be apportioned for the period from the
date of such use or occupancy to the date when all the damage has been repaired.
(b) Repair to Leasehold Improvements. Landlord shall have no obligation to repair damage to
or to replace any leasehold improvements, Tenant's personal property or any other property located
in the Property, and Tenant shall within thirty (30) days after the Property is sufficiently repaired so
as to permit the commencement of work by Tenant, commence to repair, reconstruct and restore or
replace the Property (including fixtures, furnishings and equipment) and prosecute the same
diligently to completion.
(c) Termination Right. Notwithstanding any provision contained herein to the contrary, Tenant
shall have the option and right to terminate this Lease if, (a) the Property shall be so damaged by
Casualty that it cannot be fully repaired within one hundred eighty (180) days after the date of
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City of Evanston Lease — 860 Chicago Avenue
damage; (b) during the last eighteen (18) months of the Term of this Lease, the Property is damaged
by a Casualty in amount exceeding thirty-three and one-third percent (33.33%) of the square footage
of the Property, provided that, in such event, such termination of this Lease shall be effected by
written notice within ninety (90) days of the happening of the Casualty causing such damage. This
provision shall expressly survive the termination or expiration of this Lease.
9. INSURANCE
(a) Tenant shall keep in full force and effect during the Term special form coverage insurance
covering Tenant's leasehold improvements, trade fixtures, merchandise and other personal property
from time to time in, on or upon the Property for the full replacement value insuring against
physical loss or damage generally included in the classification of "all risk" coverage.
(i) Said insurance shall be written by a company or companies licensed to do business in the
state in which the Property is located and rated Class A:XII or better in Bests Key Rating Guide of
Property -Casualty Insurance Companies.
(ii) Said insurance shall be in an amount of the full replacement value with a deductible in
Tenant's reasonable discretion, which deductible Tenant shall be paid at Tenant's sole cost and
expense. The insurance is to cover, in addition to any personal property at the Property, the above
building standard leasehold improvements and betterments incorporated into the Property, whether
or not initially installed and/or paid for by the Tenant. The Tenant's aggregate coverage amount
must be an amount sufficient to cover both the tenant's personal property at the Property and the
leasehold improvements. So long as the Lease is not terminated pursuant to Paragraph 9 for a
casualty, the proceeds of tenant's insurance policy with respect to the tenant improvements shall be
used to restore and replace the same.
(b) Tenant agrees to maintain a policy or policies of commercial general liability insurance
written by an insurance carrier rated at least Class A or better in Bests Key Rating Guide of
Property -Casualty Insurance Companies and licensed to do business in the state in which the
Property is located which shall insure against liability for injury to and/or death of and/or damage
to personal property of any person or persons, with policy limits of not less than $2,000,000.00
combined single limit for injury to or death of any number of persons or for damage to property
of others not arising out of any one occurrence. Said policy or policies shall provide, among other
things, blanket contractual liability insurance. Tenant's policy shall cover the Property and the
business operated by Tenant and shall name Landlord as an additional insured. Landlord is self -
insured up to $1.25 Million and agrees to maintain an excess policy or policies of commercial
general liability insurance over the self -insured limit written by an insurance carrier with a rating at
least Class A or better in the Bests Key Rating Guide and licensed to do business in the state in
which the Property is located which shall insure against liability for injury to and/or death of
and/or damage to personal property of any person or persons, with policy limits of not less than
$2,000,000.00 combined single limit for injury to or death of any number of persons or for
damage to property of others not arising out of any one occurrence.
(c) Each of the parties hereto agrees to maintain and keep in force, during the Term hereof, all
Workers' Compensation and Employers' Liability Insurance required under applicable Workers'
Compensation Acts.
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City of Evanston Lease — 860 Chicago Avenue
(d) Within thirty (30) days after written request, each of the parties agrees to deliver to the other
a certificate of insurance as evidence that the policies of insurance required by this Section 10 have
been issued and are in effect.
(e) Waiver of Subrogation. Neither Landlord nor Tenant shall be liable to the other or to any
insurance company (by way of subrogation or otherwise) insuring the other party for any loss or
damage to any building, structure or other tangible property, or any resulting loss of income for
property or general liability losses, even though such loss or damage might have been occasioned
by the acts or omissions of such party, its agents, contractors or employees. Landlord or Tenant
shall look exclusively to the proceeds of insurance carried by it or for its benefit in the event of any
damage or destruction to its property located on the Property. Notwithstanding anything to the
contrary contained herein, Landlord and Tenant hereby release and waive any and all rights of
recovery, claim, action or cause of action, against the other, or its respective directors, shareholders,
officers, agents, invitees and employees, for any loss or damage that may occur to the property or
the equipment, fixtures and improvements comprising any part of the Property, by reason of fire,
the elements, or any other cause which could be insured against under the terms of an "all risk" fire
insurance policy, in the state where the Property is located, regardless of cause or origin, including
negligence of the parties hereto, their agents, officers, invitees and employees. Subject to the
provisions of the Lease, no insurer of a party hereunder shall ever hold or be entitled to any claim,
demand or cause of action against Tenant by virtue of a claim of loss paid under any such insurance
policies, whether such insurer's claim be in the nature of subrogation or otherwise. The waivers
provided pursuant to this paragraph shall not operate to the extent that they would void coverage
under the provisions of any policy of insurance.
10. INDEMNIFICATION
Except as otherwise provided in this Lease and subject to Section 10(e), and except to the extent
caused by the negligence or willful misconduct of Landlord, or its agents, employees or contractors,
or by the breach of this Lease by Landlord, Tenant shall protect, defend, indemnify and save
Landlord and its officers, directors, agents, attorneys, and employees harmless from and against any
and all obligations, liabilities, costs, damages, claims and expenses of whatever nature arising from (i)
any matter, condition or thing that occurs in the Property, which is not the result of Landlord's
negligence or willful misconduct, (ii) any negligence or willful misconduct of Tenant, or its agents,
employees or contractors; or (iii) Landlord's breach occasioned wholly or in part by any act,
omission of Tenant, its agents, employees, contractors or servants. The provisions of this Section
shall survive the expiration or earlier termination of this Lease only with respect to any damage,
injury or death occurring before such expiration or earlier termination.
11. EMINENT DOMAIN
(a) Taking. An appropriation or taking under the power of eminent domain of all, or a portion,
of the Property, are sometimes hereinafter called a "taking."
(b) Total Taking of the Property. If all of the Property shall be taken this Lease shall terminate
and expire as of the date of vesting of title in, or taking of actual physical possession of the Property
by, the condemnor, and Landlord and Tenant shall thereupon be released from any and all further
liability hereunder except to the extent any such liability hereunder expressly states that it shall
survive the termination of this Lease. In such event, Tenant shall be entitled to participate in any
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City of Evanston Lease — 860 Chicago Avenue
condemnation award so as to be compensated for the cost of relocation, removal and decrease in
value, as a result of such taking of Tenant's fixtures, equipment and stock -in -trade located in the
Property, goodwill and any other items to which Tenant is entitled under applicable lave, and, the
value of the leasehold of which Tenant is being deprived for the remainder of the Term hereof so
long as any such award made to Tenant shall not reduce any award which may be obtained by
Landlord. Nothing in this Section shall be construed as a waiver by Landlord of any rights vested in
it by law to recover damages from a condemnor for the taking of its right, title, or interest in the
Property.
(c) Partial Taking.
In the event of the taking of-
(i) any portion of the Property, so that the remainder thereof is not reasonably adapted to
the continued leasing of the Property by Tenant; or
(ii) access, whether by a taking or otherwise, of the Property or a portion thereof to
adjoining thoroughfares, so that all accessibility is substantially or materially restricted and as a result
the continued leasing of the Property by Tenant will become impracticable or unprofitable in
Tenant's sole discretion; then Tenant shall have the right to cancel and terminate this Lease as
hereinafter provided. Within ninety (90) days after receipt by Tenant from Landlord of written
notice that a condemnation action has been commenced, Tenant may, by written notice to Landlord,
notify Landlord of its election to terminate this Lease, whereupon the parties shall be released from
any and all further obligations under this Lease except to the extent any such obligation hereunder is
expressly provided hereunder that the same shall survive the termination of this Lease and Tenant
shall share any award or sale price as provided in Section 12(b) hereof.
(d) Notice of Proceedings_ Upon service on either party hereto of any legal process in
connection with any condemnation proceedings, the party so served shall give immediate notice
thereof to the other party hereto.
(e) Temporary Taking. In the event of a taking of the Property, or any portion thereof, for
temporary use (specifically one not exceeding one hundred twenty (120) days in duration), without
the taking of the fee simple title thereto, this Lease shall remain in full force and effect, except for
Tenant's payment of Rent which shall be proportionally abated for any period during which Tenant
cannot operate its business from the Property in the same manner as prior to such temporary taking.
All awards, damages, compensation and proceeds payable by the condemnor by reason of such
taking relating to the Property, for periods prior to the expiration of the Lease shall be payable to
Tenant. All such awards, damages, compensation and proceeds for periods after the expiration of
the Lease shall be payable to Landlord.
12. UTILITIES
Tenant shall pay during the Term hereof directly to the appropriate utility company or governmental
agency all electric, water, gas, telephone and other public utility charges in connection with its
occupancy and use of the Property, including all costs of operating and maintaining all equipment
therein, all business licenses and similar permit fees but excluding any installation costs, tap fees
and/or connection fees or charges, all of which shall be paid by Landlord. All utilities shall be paid
pursuant to separate meters measuring 'Tenant's consumption of utilities from the Property, which
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City of Evanston Lease — 860 Chicago Avenue
meter fee shall be Landlord's obligation at its sole cost and expense. Landlord shall not be liable to
Tenant for damages or otherwise (i) if any utilities shall become unavailable from any public utility
company, public authority or any other person or entity supplying or distributing such utility, or (ii)
for any interruption in any utility service. (including, but without limitation, any heating, ventilation
or air conditioning) caused by the making of any necessary repairs or improvements or by any cause
beyond Landlord's reasonable control, and the same shall not constitute a default, termination or an
eviction. Notwithstanding the foregoing, in the event an interruption with such utility services shall
continue for more than five (5) consecutive days, and if such interruption is not caused in part by
Tenant, and if as a result of such interruption Tenant is unable to operate in the Property and in fact
does not operate in the Property, then Rent shall abate for the entire period of interruption.
13. COVENANTS AGAINST LIENS
Tenant covenants and agrees that it shall not, during the Term hereof, suffer or permit any lien to be
attached to or upon the Property or the Property by reason of any act or omission on the part of
Tenant or its agents, contractors or employees. In the event that any such lien does so attach, and
(i) is not released within thirty (30) days after notice to Tenant thereof, or (ii) if Tenant has not
bonded such lien within said thirty (30) day period, Landlord, in its sole discretion, may pay and
discharge the same and relieve the Property or the Property therefrom, and Tenant agrees to repay
and reimburse Landlord upon demand for the amount so paid by Landlord and for other reasonable
costs incurred by Landlord in discharging and relieving said lien. The Tenant will hold the Landlord
harmless from all claims, liens, claims of lien, demands, charges, encumbrances or litigation arising
out of any work or activity of Tenant on the Property. Tenant will, within sixty (60) days after filing
of any lien, fully pay and satisfy the lien and reimburse Landlord for all resulting loss and expense,
including a reasonable attorney's fees. Provided, however, in the event that Tenant contests any lien
so filed in good faith and pursues an active defense of said lien, Tenant shall not be in default of this
paragraph. However, in the event of any final judgment against Tenant regarding such lien, Tenant
agrees to pay such judgment and satisfy such lien within 60 days of the entry of any such judgment.
14. ASSIGNMENT AND SUBLETTING
Tenant shall not have the right to assign this Lease, or to sublet the Property, transfer and grant
concessions or licenses ("Transfer") in all or any part of the Property without the Landlord's
written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No
Transfer shall relieve Tenant from any of its obligations as Tenant hereunder. Every such
assignment or sublease shall recite that it is and shall be subject and subordinate to the provisions of
this Lease, and the termination or cancellation of this Lease shall constitute a termination and
cancellation of every such assignment or sublease. Notwithstanding the foregoing, Landlord agrees
that no merger, consolidation, corporate reorganization, or sale or transfer of Tenant's assets or
stock (specifically including any inter -family or inter -company transfers), redemption or issuance of
additional stock of any class, or assignment or sublease to any person or entity which controls, is
controlled by or is under common control with Tenant, shall be deemed a Transfer hereunder.
15. NOTICES
Any notices required to be given hereunder, or which either party hereto may desire to give to the
other, shall be in writing. Such notice may be given by reputable overnight delivery service (with
proof of receipt available), personal delivery or mailing the same by United States mail, registered or
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City of Evanston Lease — 860 Chicago Avenue
certified, return receipt requested, postage prepaid, at the following addresses identified for Landlord
and Tenant, or to such other address as the respective parties may from time to time designate by
notice given in the manner provided in this Section.
If to the City of Evanston: with a copy to:
City Manager Corporation Counsel
2100 Ridge Avenue 2100 Ridge Avenue
Evanston, IL 60201 Evanston, IL 60201
If to Tenant:
City Newsstand, Inc.
4018 North Cicero Avenue
Chicago, IL 60641
For purposes of this Lease, a notice shall be deemed given upon the date of actual receipt thereof or
the date of proof of rejection thereof if delivered by hand or overnight courier service.
16. RIGHT TO GO UPON PROPERTY
Landlord hereby reserves the right for itself or its duly authorized agents and representatives at all
reasonable times during business hours of Tenant upon at least forty-eight (48) hours prior notice
to Tenant and accompanied by a representative of Tenant (which may be the store manager or
assistant manager) to enter upon the Property for the purpose of inspecting the same and of
showing the same to any prospective purchaser or encumbrance or tenant, and for the purpose of
making any repairs which Landlord is required hereunder to make on the Property, but any such
repairs shall be made with all due dispatch during normal construction trade working hours, and in
such manner as to minimize the inconvenience to Tenant in the conduct of its business, it being
agreed that in the event of a necessity of emergency repairs to be made by Landlord, Landlord may
enter upon the Property forthwith to effect such repairs. Notwithstanding the foregoing, in the
event that due to an entry by or on behalf of Landlord into the Property, Tenant's use is materially
interfered with and Tenant, from the standpoint of prudent business management, cannot open
and operate the Property for business for two (2) consecutive days, all Rent and other charges
payable by Tenant hereunder shall equitably abate commencing after such second (2"d) day, and
continuing until such repairs are completed, unless such entry is required as a result of Tenant's
negligence or intentional misconduct.
17. DEFAULT
(a) Tenant Default.
(i) Events of Default. Including, but not limited to, the following events shall be deemed to
be an "event of default" hereunder by Tenant subject to Tenant's right to cure:
a. Tenant shall fail to pay any item of Rent per Section 3 at the time and place when
and where due and does not cure such failure within five (5) business days after receipt of
notice from Landlord of such failure;
b. Tenant shall fail to comply with any other term, provision, covenant or warranty
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City of Evanston Lease — 860 Chicago Avenue
made under this Lease or if any of Tenant's representations and warranties made under this
Lease are determined to be untrue, either when made or at any time during the Term, by
Tenant, and Tenant shall not cure such failure within thirty (30) days after Landlord's written
notice thereof to Tenant. In the event Tenant cannot comply with such term, provision, or
warranty, within said thirty (30) day period, Tenant shall not be in default if Tenant is
diligently and continuously making an effort to comply with such term, provision, covenant
or warranty and Tenant completes the cure of the default; or
c. Tenant shall make a general assignment the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due or shall file a petition in bankruptcy.
(ii) Remedies. Upon the occurrence of an event of default, Landlord may, so long as such
default continues, as permitted by law and subject to Landlord's obligation to use good faith efforts
to mitigate damages, either:
a. terminate this Lease by written notice to Tenant, which written notice shall
specify a date for such termination at least fifteen (15) days after the date of such written
termination notice and such termination shall be effective as provided in such written notice
unless Tenant shall cure such default within such notice period, or not terminate this Lease
as a result of the default of Tenant. If Tenant shall fail to surrender the Property upon such
termination, Landlord may thereupon, reenter the Property, or any part thereof, and expel or
remove therefrom Tenant and any other persons occupying the same, using such means
provided by law;
b. without terminating this Lease, Landlord may evict Tenant (by any means
provided by law) and let or relet the Property or any or all parts thereof for the whole or any
part of the remainder of the Term hereof, or for a period of time in excess of the remainder
of the Term hereof, and out of any rent so collected or received, Landlord shall first pay to
itself the expense of the cost of retaking and repossessing the Property and the expense of
removing all persons and property therefrom, and shall, second, pay to itself any costs or
expenses sustained in securing any new tenant or tenants (provided that such amount shall
not include any amounts incurred to restore the Property to more than the condition
originally delivered to Tenant), and shall third, pay to itself any balance remaining, and apply
the whole thereof or so much thereof as may be required toward payment of the liability of
Tenant to Landlord then or thereafter unpaid by Tenant; or
C. pursue such other remedies as are available at law or in equity.
(b) Landlord Default. Should Landlord default in the performance of any covenant, provision,
warranty, condition or agreement herein, or if any of Landlord's representations and warranties made
under this Lease are determined to be untrue, either when made or at any time during the Term, and
such default in the case of any failure by Landlord to pay any sum required to be paid to Tenant
hereunder, continues for ten (10) business days after notice thereof from Tenant, or in case of any
non -monetary default, continues for thirty (30) days after receipt by Landlord of written notice
thereof from Tenant (except as otherwise provided herein), or if the default of Landlord is of a type
which is not reasonably possible to cure within thirty (30) days, if Landlord has not commenced to
cure said default within said thirty (30) day period and does not thereafter diligently prosecute the
curing of said default to completion (except as otherwise provided herein), Tenant in addition to any
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City of Evanston Lease — 860 Chicago Avenue
and all other remedies which it may have at law and/or in equity including the right to seek injunctive
relief without posting a bond or the obligation to prove irreparable harm, may pay or perform any
obligations of Landlord hereunder and deduct the cost thereof from each installment of annual Rent
payable pursuant to the terms of this Lease; provided, however, in no event shall the amount of any
such deduction exceed ten percent (10%) of the Rent payable on a monthly basis; provided, further,
Tenant shall not have the right to terminate this Lease except as expressly permitted herein.
18. REPRESENTATIONS AND WARRANTIES
(a) Landlord represents, warrants and covenants to Tenant that, to Landlord's knowledge, the
following is true as of the Effective Date:
(i) Landlord is the fee simple owner of the Property;
(ii) the Property is subject to no restrictions or continuing regulations of any kind or nature
whatsoever incompatible with the Permitted Use and that there are no restrictions in any
agreement by which Landlord is bound (including, but not limited to, Landlord's insurance
policies) which would adversely affect Tenant's right to use the Property for the Permitted
Use during the Term;
(iii) there are no exceptions to title with respect to and/or encumbrances on the Property which
would interfere with Tenants proposed use of the Property;
(iv) Landlord has no notice of any proposed Assessments other than as reflected on the current
tax bill;
(v) there are no judicial, quasi-judicial, administrative or other orders, injunctions, moratoria or
pending proceedings against Landlord or the Property which preclude or interfere with, or
would preclude or interfere with, the construction contemplated herein or the occupancy
and use of the Property by Tenant for the purposes herein contemplated.
(vi) no third party has the right to object to Tenant's tenancy hereunder, prohibit the selling of
any products sold by Tenant or the uses allowed herein or the right to consent to any feature
of the Property or Tenant's signage.
(vii) there are no mortgages, prime leases, deeds to secure debt, deeds of trust, or other
instruments in the nature thereof, affecting Landlord or its interest in the Property.
(b) All representations and warranties, covenants and indemnities contained in this Lease shall
survive the expiration or earlier termination of this Lease.
19. HOLDING OVER: END OF TERM
(a) If Tenant shall hold possession of the Property after the expiration or termination of this Lease,
at Landlord's option (i) Tenant shall be deemed to be occupying the Property as a tenant from month -to -
month at one hundred fifty percent (150%) of the Rent in effect upon the expiration or termination of
the immediately preceding term or (ii) Landlord may exercise any other remedies it has under this Lease
or at law or in equity including an action for wrongfully holding over.
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City of Evanston Lease — 860 Chicago Avenue
(b) Upon the expiration or sooner termination of this Lease, Tenant shall surrender the Property to
Landlord in as good order, condition and repair as when received by Tenant; ordinary wear and tear,
casualty and condemnation excepted. This provision shall expressly survive the termination or expiration
of this Lease.
(c) Any property, equipment, or product remaining in the Property upon expiration of this
Lease shall be considered abandoned and property of the Landlord.
20. REMEDIES ARE CUMULATIVE
Remedies conferred by this Lease upon the respective parties are not intended to be exclusive, but
are cumulative and in addition to remedies otherwise afforded by the law.
21. QUIET POSSESSION
Upon payment by the Tenant of the minimum, percentage and additional rent and all other sums
due hereunder and upon the observance and performance of all covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the
Property for the Term of this Lease without hindrance or interruption by Landlord or any other
person or persons lawfully or equitably claiming by, through or under the Landlord, subject
nevertheless, to the terms and conditions of this Lease.
22. ALTERATION
(a) Changes Reauired by Law. Any structural changes, alterations or additions in or to the
Property which may be necessary or required by reason of any law, rule, regulation or order
promulgated by competent governmental authority shall be made at the sole cost and expense of
Landlord, including but not limited to asbestos removal and disposal and interior and exterior
compliance with the Americans with Disabilities Act (ADA) etc. Notwithstanding the foregoing, if
any such changes, alterations or additions are required as a result of improvements made by Tenant
during the Term hereof or due to Tenant's use of the Property, such changes, alterations or
additions shall be made at the sole cost and expense of Tenant. Tenant may contest the validity of
any such law, rule, regulation or order, but shall indemnify and save Landlord harmless against the
consequences of continued violation thereof by Tenant pending such contest.
(b) Alterations Durinp, Term. Tenant shall be permitted to perform interior, nonstructural
alterations to the Property and to revise the interior layout of the Property. Tenant shall obtain
Landlord's written consent to any other alterations or construction which affects the structural
nature of the Property, which consent shall not be unreasonably withheld, conditioned or delayed.
23. HAZARDOUS SUBSTANCES
(a) Tenant agrees that, except as herein set forth, it shall not generate, use, store, handle or
dispose of on or transport over the Property any Hazardous Substances (defined below) in violation
of any Environmental Laws (defined below), except as such incidental amounts of Hazardous
Substances as may be required for Tenant to conduct the Permitted Use.
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City of Evanston Lease — 860 Chicago Avenue
(b) If, at any time during the Term, Hazardous Substances are found in the Property or at the
Property, then, in such event:
(i) with regard to any Hazardous Substances existing on the Property prior to the
Commencement Date or that Landlord shall have caused, Landlord shall remove same, in
compliance with applicable Environmental Laws, at Landlord's sole cost and expense. Landlord
shall defend, indemnify, and hold Tenant harmless from and against any and all costs, damages,
expenses and/or liabilities (including reasonable attorneys' fees) which Tenant may suffer as a result
of any claim, suit or action regarding any such Hazardous Substances (whether alleged or real)
and/or regarding the removal and clean-up of same or resulting from the presence of such
Hazardous Substances. The representation, warranty and indemnity of Landlord described in this
subsection shall survive the termination or expiration of this Lease.
(ii) with regard to any Hazardous Substances caused by Tenant or its agents, contractors or
employees, Tenant shall remove same, in compliance with applicable Environmental Laws, at
Tenant's sole cost and expense. Tenant shall defend, indemnify, and hold Landlord harmless from
and against any and all costs, damages, expenses and/or liabilities (including reasonable attorneys'
fees) which Landlord may suffer as a result of any claim, suit or action regarding any such
Hazardous Substances (whether alleged or real) present due to Tenant and/or regarding the removal
and clean-up of same or resulting from the presence of such Hazardous Substances. The
representation, warranty and indemnity of Tenant described in this subsection shall survive the
termination or expiration of this Lease.
(c) In the event that during the Term of this Lease, Tenant is prevented from performing
Tenant's Work and/or Tenant shall be unable to operate for a period of thirty (30) days or more for
the Permitted Use at the Property and ceases operating at the Property as a result of the existence or
remediation of Hazardous Substances located at the Property which were not caused by Tenant or its
agents, contractors or employees, then Rent, Additional Rent and all other charges due hereunder shall
equitably abate, in accordance with the portion of the Property used by Tenant, until such time as
Tenant is able to resume the performance of Tenant's Work and/or the operation of its business in
the Property. If Rent and other charges shall be so abated for a period of three hundred sixty-five
(365) days, Tenant shall have the right to terminate this Lease upon thirty (30) days prior written notice
to Landlord.
(d) The term "Hazardous Substance" includes, without limitation, any material or substance
which is (i) defined or listed as a "hazardous waste", "extremely hazardous waste", "restrictive
hazardous waste" or "hazardous substance" or considered a waste, condition of pollution or
nuisance under any Environmental Law (as defined below); (ii) petroleum or a petroleum product or
fraction thereof; (iii) asbestos and any asbestos containing materials; and/or (iv) substances known
to cause cancer and/or reproductive toxicity. The term "Environmental Law" shall mean any
federal, state or local law, statute, ordinance, rule, regulation, order, consent, decree, judgment or
common-law doctrine, interpretation thereof, and provisions and conditions of permits, licenses,
plans, approvals and other operating authorizations whether currently in force or hereafter enacted
relating to health, industrial hygiene or the environmental conditions on, under or about the
Property, as such laws are amended and the regulations and administrative codes applicable thereto.
It is the intent of the parties hereto to construe the terms "Hazardous Substance" and
"Environmental Law" in their broadest sense.
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City of Evanston Lease — 860 Chicago Avenue
24. GENERAL CONDITIONS
(a) Time is of the essence of this Lease. Any deadlines in this Lease which cannot be met
because of delays caused by governmental regulations, inability to procure labor or materials,
strikes, acts of God, or other causes (other than financial), beyond the control of Landlord or
Tenant ("Force Majeure") shall be extended by the amount of time caused by such delays;
provided, however, the payment of rent shall not be excused. Notwithstanding anything herein to
the contrary, the failure by Landlord to construct the Property according to building code and/or
to receive timely inspections by the necessary authorities due solely to the negligence, misconduct
or financial inability of Landlord or Landlord's contractors, employees or representatives shall not
constitute Force Majeure. In order for Landlord to. claim the occurrence of Force Majeure,
Landlord must have notified Tenant in writing of such occurrence within twenty (20) business
days after the initial occurrence.
(b) No waiver of any breach of the covenants, agreements, obligations and conditions of this
Lease to be kept or performed by either party hereto shall be construed to be a waiver of any
succeeding breach of the same or any other covenant, agreement, obligation, condition or provision
hereof.
(c) If the Landlord must pursue legal action to enforce terms of the Lease, Tenant is responsible
for all costs, charges, expenses and attorney's fees, and any other fees incurred in the event of a
dispute between the Parties.
(d) Tenant shall not be responsible for the payment of any commissions in relation to the leasing
transaction represented by this Lease. Landlord and Tenant each covenant that they have not dealt
with any real estate broker or finder with respect to this Lease (herein collectively "Brokers"). Each
party shall hold the other party harmless from all damages, claims, liabilities or expenses, including
reasonable and actual attorneys' fees (through all levels of proceedings), resulting from any claims
that may be asserted against the other party by any real estate broker or finder with whom the
indemnifying party either has or is purported to have dealt, except for the Brokers.
(e) The use herein of any gender or number shall not be deemed to make inapplicable the
provision should the gender or number be inappropriate to the party referenced. All section headings,
titles or captions contained in this Lease are for convenience only and shall not be deemed part of
this Lease and shall not in any way limit or amplify the terms and provisions of this Lease.
(f) Landlord and Tenant have negotiated this Lease, have had the opportunity to be advised
respecting the provisions contained herein and have had the right to approve each and every
provision hereof; therefore, this Lease shall not be construed against either Landlord or Tenant as a
result of the preparation of this Lease by or on behalf of either party.
(g) If any clause, sentence or other portion of this Lease shall become invalid or unenforceable,
the remaining portions thereof shall remain in full force and effect.
(h) Wherever in this Lease Landlord or Tenant is required to give consent, such consent shall not
be unreasonably withheld, conditioned or delayed except to the extent otherwise expressly provided
herein.
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City of Evanston Lease — 860 Chicago Avenue
(i) Landlord hereby agrees that it shall maintain all confidentiality with regard to entering into this
Lease, the opening for business by Tenant in the Property and any financial information contained
hereunder or obtained from Tenant during the Term of this Lease, other than disclosures to
necessary third parties and Landlord shall not release any material whatsoever to the press or any
news media without the prior written approval of Tenant, which approval may be withheld in
Tenant's sole discretion.
0) There shall be no personal liability on Landlord, its elected officials, officers, employees, agents,
or any successor in interest with respect to any provisions of this Lease, or amendments, modifications
or renewals hereof. Tenant shall look solely to the then owner's interest in the Property (including but
not limited to any insurance proceeds, rents, or judgments) for the satisfaction of any remedies of
Tenant in the event of a breach by Landlord of any of its obligations hereunder.
(k) Landlord hereunder shall have the right to assign, sell or transfer Landlord's interest in this
Lease or the Property with consent of Tenant, which shall not be unreasonably withheld. In the
event of any such transfer, the transferor shall be automatically relieved of any and all obligations on
the part of Landlord accruing from and after the date of such transfer.
(1) The parties agree the this Lease shall be governed by and interpreted in accordance with the
laws of the State of Illinois and that venue for any disputes shall be in the Circuit Court of Cook
County, Illinois.
(m) This Lease shall become effective on the day that this Lease shall be executed by the last of
the parties hereto to execute this Lease (herein "Effective Date").
(n) There are no oral agreements between the parties hereto affecting this Lease, and this Lease
supersedes and cancels any and all previous negotiations, arrangements, letters of intent, lease
proposals, brochures, agreements, representations, promises, warranties and understandings between
the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and
none thereof shall be used to interpret or construe this Lease. This Lease cannot be changed or
terminated except by a written instrument subsequently executed by the parties hereto.
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City of Evanston Lease — 860 Chicago Avenue
IN WITNESS WHEREOF, the respective parties hereto have executed this Lease by officers
or agents thereunto duly authorized.
Landlord:
CITY OF EVANSTON,
An Illinois municipal corporation
By:
Name: Wally Bobkiewicz
Title: City Manager
Tenant:
CITY NEWSSTAND, INC.
An Illinois corporation
By:
Name: Joe Angelastri
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City of Evanston Lease — 860 Chicago Avenue
EXHIBIT A
LEGAL DESCRIPTION
THAT PART OF LOT 12 (EXCEPT THE WEST 28 FEET THEREOF) IN BLOCK 12 IN
WHITE'S ADDITION TO EVANSTON IN THE WEST HALF OF THE SOUTHEAST
QUARTER OF SECTION 19, TOWNSHIP 41 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN EVANSTON, COOK COUNTY, ILLINOIS, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 12; THENCE ALONG THE
NORTHLINE OF SAID LOT 12, AND ON AN ASSUMED BEARING, SOUTH 89
DEGREES 08 MINUTES 09 SECONDS WEST 58.02 FEET; THENCE SOUTH 14 DEGREES
55 MINUTES 00 SECONDS EAST 46.15 FEET; THENCE NORTH 81 DEGREES 41
MINUTES 25 SECONDS EAST 53.33 FEET TO THE EAST LINE OF SAID LOT 121
THENCE, ALONG SAID EAST LINE NORTH 09 DEGREES 58 MINUTES O6 SECONDS
WEST 38.34 FEET TO THE POINT OF BEGINNING.
COMMONLY KNOWN AS: 860 CHICAGO AVENUE, EVANSTON, ILLINOIS
PIN: 11-19-424-008-8002 (Leasehold PIN)
18
49817532v4