HomeMy WebLinkAboutORDINANCES-2015-002-O-15I
n
�J
1 /14/201,
2-0-15
AN ORDINANCE
Authorizing the City Manager to Enter into a Real Estate Contract
for the Sale of the Certain City -Owned Real Property at 629-631
Howard Street, Evanston, Illinois to Ward Eight, LLC
THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF EVANSTON, COOK COUNTY, ILLINOIS: `
SECTION 1: Legislative Statement.
At the time of passage of this ordinance, the City of Evanston owns real property
with a real property address of 629-631 Howard Street, Evanston, Illinois, legally
described in Exhibit A attached hereto and incorporated herein by reference (the
"Subject Property")
The City Council of the City of Evanston determine that ownership of the three-
story building which contains a commercial business on the first floor and two
residential units on the remaining two floors at the Subject Property is no longer
necessary, appropriate, required, or in the best interest of the City of Evanston. The
City Council determined that the best interest of the City of Evanston would be served
by the sale of the Subject Property to the City's commercial tenant, Ward Eight, LLC, an
Illinois limited liability company. On February 27, 2012, the City Council adopted
Ordinance 26-0-12 authorizing a 5-year lease agreement with Ward Eight and granted
an option to purchase the Subject Property and Ward Eight wishes to exercise this
option.
2-0-15
8 Pursuant to Ordinance 1-0-15, the City Council, by a vote of two-thirds (2/3) of
the elected Aldermen then holding office directed that the Subject Property be sold by
•
negotiation on behalf of the City. Negotiations commenced and concluded. The City
Manager recommends that a sale between the City of Evanston as Seller, and Ward
Eight, LLC as Buyer, be hereby accepted by the City Council for the aforesaid
Property legally described in Exhibit A. The City Council finds and determines that the
best interests of the City of Evanston and its residents will be served by conveying the
aforesaid Subject Property to Ward Eight, LLC on terms consistent with the Agreement
for Purchase and Sale of Real Estate and in a form acceptable to the Corporation
Counsel prior to execution, the proposed agreement is attached as Exhibit B and
incorporated herein by reference (hereinafter, the "Agreement").
SECTION 2: That the negotiated sale of the Subject Property to Ward
Eight, LLC, as Buyer is hereby accepted by the City Council of the City of Evanston
for the real Property legally described in Exhibit A and commonly known as 629-631
Howard Street, Evanston, Illinois.
SECTION 3: The City Manager is hereby authorized and directed to sign
the real estate sale agreement after it is in form acceptable to the Corporation Counsel,
and the City Clerk is hereby authorized and directed to attest, the Agreement for
Purchase and Sale of Real Estate in Exhibit B, pursuant to the terms of which the
Property shall be conveyed. The City Manager is further authorized to negotiate any
changes or additional terms and conditions with respect to the sale of the aforesaid
Property as the City Manager may deem fit and proper.
—2—
2-0-15
SECTION 4: The City Manager and the City Clerk, respectively, are
it hereby authorized and directed to execute, attest, and delivery such other documents,
•
agreements, and certificates as may be necessary to the sale herein authorized, which
are in a form acceptable to the Corporation Counsel.
SECTION 5: Pursuant to Subsection 1-17-4-2-(B) of the Evanston City
Code, 2012, as amended (the "City Code"), an affirmative vote of two-thirds (2/3) of the
elected Aldermen is required to accept the recommendation of the City Manager on the
negotiation authorized herein. The City reserves the right to reject any and all
negotiations.
SECTION 6: Pursuant to City Code Subsection 1-17-4-2-(B)-3, Notice of
Intent to Sell and Lease Certain Real Estate was published in the Sun Times, a
newspaper in general circulation in the City, on January 8, 2015. Said publication was
neither less than fifteen (15) nor more than thirty (30) days before the date on which the
City Council considered adoption of this ordinance authorizing the City Manager to
execute a sales contract as the result of a negotiated sale.
SECTION 7: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 8: This ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
SECTION 9: If any provision of this Ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such
invalidity shall not affect other provisions or applications of this Ordinance that can be
—3—
it
•
2-0-15
N
given effect without the invalid application or provision, and each invalid application of
this Ordinance is severable.
SECTION 10: 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.
Ayes:
Nays:
Introduced:7 1117
a�Q2015
Adopted:�2015
Attest:
Approved:
l 1 2015
Eli .teeth B. Tisdahl, Mayor
Approved as to form:
Rod ey Green , City Clerk W. Grant Farrar, CoFporation Counsel
-4-
2-0-15
EXHIBIT A
it LEGAL DESCRIPTION
LOT 6 AND THE EAST 0.62 FEET OF LOT 5 IN BLOCK 1 IN NILES HOWARD
TERMINAL ADDITIONAL, BEING A SUBDIVISION OF THE SOUTH 6.25 CHAINS
(412 Y2 FEET) OF THAT PART OF THE NORTHEAST % OF SECTION 30,
TOWNSHIP 41 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN,
LYING WEST OF THE RIGHT OF WAY OF THE CHICAGO AND NORTH WESTERN
RAILROAD IN COOK COUNTY, ILLINOIS.
Real property address: 629-631 Howard Street, Evanston, Illinois 60202
PIN: 11-30-209-024-0000
•
—5—
2-0-15
4fEXHIBIT B
REAL ESTATE PURCHASE AND SALE AGREEMENT
•
REAL ESTATE CONTRACT
THIS REAL ESTATE CONTRACT ("Contract") is entered into as of the day of
December, 2014 ("Effective Date"), by and between the City of Evanston, an Illinois municipal
corporation ("Seller") and Ward Eight, LLC, an Illinois limited liability company. The Seller
and Buyer shall be referred to herein collectively as the "Parties".
In consideration of the covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto covenant and agree as follows:
1. Property. Seller hereby agrees to convey to Buyer and Buyer hereby agrees to
purchase from Seller all of Seller's interest in the real property described on Exhibit A attached
hereto and all improvements located thereon and all appurtenances thereto (the "Realty"), and
Seller's interest, if any, in the personal property described on Exhibit B attached hereto (the
"Personalty"). The Realty and Personalty are sometimes collectively referred to herein as the
"Property". The Realty has a street address of 629-631 Howard Street, Illinois 60202 and the
leased by the Buyer from the Seller per Commercial Lease and Option Agreement dated March
15, 2012 (the "Lease").
2. Purchase Price. The purchase price for the Property is Three Hundred Sixty -
Two Thousand Six Hundred Fifty and no/100 Dollars ($362,650.00) ("Purchase Price'") and shall
be paid as follows:
(a) The Buyer will pay the January and February rent per the Lease agreement
as earnest money for this transaction. The Earnest Money will be used as a credit at
Closing and non-refundable if the Closing between the Parties under this Contract does
not occur; and
(b) The entire Purchase Price, subject to closing prorations and credits for rent
paid during the Lease Term per the aforementioned Lease shall be paid to Seller in cash
by wire transfer of immediately available funds at the Closing.
3. Seller's Representation and Warranty. Seller hereby warrants and represents
to Buyer that Seller has the authority necessary to enter into this Contract and comply with
Seller's obligations hereunder.
The representation and warranty made by Seller in this Section 3 shall be true as of the
Closing Date (as defined below) hereof and shall survive the Closing of this transaction for a
period of one (1) year.
4. Survey Contingency. Buyer, at its sole expense, shall obtain a survey (the
"Survey") of the Realty prepared by a land surveying company registered in the same state as the
Realty. If Buyer elects to obtain a Survey, Buyer agrees to (i) have such Survey certified to the
Title Company and to the Seller, and (ii) provide Seller with a copy of such Survey. Buyer shall
have three (3) days from the Effective Date to obtain and deliver to Seller a copy of the Survey
and, in writing any objection to a matter shown on the Survey which materially affects the Realty
• or Buyer's intended use of the Realty ("Survey Objections"). If within such three (3) day period,
6786978_2
Buyer fails to (a) obtain and deliver a copy of the Survey to Seller, and/or (b) deliver written
notice of Survey Objections to Seller, then Buyer is deemed to have waived all rights to object
to, is deemed to have approved, and shall accept title to the Realty subject to, any matters shown
on the Survey. If within such three (3) day period, Buyer obtains and delivers a copy of the
Survey to Seller and delivers written notice of Survey Objections to Seller, Seller shall have five
(5) business days after receipt of Buyer's objection notice to notify Buyer in writing what, if
anything, Seller agrees to do to cure such Survey Objections. Failure of Seller to respond within
said five (5) business day period shall indicate that Seller elects not to cure the Survey
Objections. Seller shall have no obligation to cure any Survey Objections or incur any expense
with respect thereto. Upon receipt of notice from Seller indicating that Seller elects not to pursue
a cure of any Survey Objection, Buyer shall have two (2) business days after delivery of such
notice from Seller to deliver notice to Seller terminating this Contract, in which event the earnest
money shall be disbursed to Buyer and the parties shall have no further obligations hereunder
except those provisions that expressly survive. If Buyer does not terminate this Contract
pursuant to the immediately preceding sentence within said two (2) business day period, then
Buyer is deemed to have waived all rights to object to, is deemed to have approved, and shall
accept title to the Realty subject to such uncured Survey Objection(s). If Seller pursues a cure
and is unable to cure the Survey Objections by the Closing Date, then Buyer shall have the
option, as its sole right, to either terminate this Contract on the Closing Date (in which event the
earnest money shall be disbursed to Buyer and the parties shall have no further obligations
hereunder except those provisions that expressly survive), or close on the purchase of the
Property with no Purchase Price reduction, in which case Buyer is deemed to have approved any
uncured Survey Objections and waived any rights against Seller relating thereto.
5. Title Contingency. Promptly after the Effective Date, Seller shall deliver or
cause to be delivered to Buyer a current commitment (the "Commitment") for an owner's title
insurance policy for the Realty issued by a title agent selected by Seller using a nationally
recognized title insurance underwriter (the "Title Company"). Buyer shall have five (5) business
days after receipt of the Commitment to deliver to Seller in writing any objection to a matter
shown on the Commitment which materially affects the Realty or Buyer's use of the Realty
("Title Objections"). If Buyer fails to deliver notice of Title Objections to Seller within said five
(5) business day period, Buyer shall, be deemed to have fully accepted the Commitment and all
matters disclosed therein. If Buyer delivers notice of Title Objections to Seller within said five
(5) business day period, Seller shall have ten (10) days after receipt of Buyer's objection notice
(the "Title Cure Period") to notify Buyer in writing what, if anything, Seller agrees to do to cure
the Title Objections. Failure of Seller to respond within the Title Cure Period shall indicate that
Seller elects not to cure the Title Objections. Seller shall have no obligation to cure any Title
Objection or incur any expense with respect thereto. If Seller elects not to cure one or more of
the Title Objections, as Buyer's sole right, Buyer shall have two (2) business days after the end
of the Title Cure Period to deliver notice to Seller terminating this Contract, in which event the
earnest money shall be disbursed to Buyer and the parties shall have no further obligations
hereunder except those provisions that expressly survive. If Buyer does not terminate this
Contract during said two business day period, Buyer is deemed to have accepted any uncured
Title Objections. If Seller pursues a cure and is unable to cure a Title Objection by the Closing
Date, then Buyer shall have the option, as its sole right, to either terminate this Contract (in
which event the earnest money shall be disbursed to Buyer and the parties shall have no further
• obligations hereunder except those provisions that expressly survive), or close on the purchase of
6786978_2 2
the Realty with no Purchase Price reduction, in which case Buyer is deemed to have accepted
any uncured Title Objections and waived any rights against Seller relating thereto. Buyer shall
make its election under the immediately preceding sentence within one (1) business day after
Seller notifies Buyer that it was unable to cure one or more Title Objections If Buyer does not
terminate this Contract during said one (1) business day period, Buyer is deemed to have
accepted any uncured Title Objections.
Notwithstanding anything to the contrary herein, the following matters shall be: deemed
"Permitted Exceptions" and Buyer shall have no right to object to any of said matters on the
Commitment or Survey:
(a) municipal and zoning ordinances and agreements entered under them,
agreements with any municipality regarding the development of the Property, building
and use restrictions and covenants, and State and/or Federal statutes and regulations;
(b) recorded easements for the distribution of utility and municipal services;
(c) property taxes and special assessments levied in the year of closing and
subsequent years;
(d) such other matters disclosed by the Survey, which are not objected to by
Buyer within the three (3) day period described in Section 4 above, or are waived or
approved or deemed waived or approved by Buyer pursuant to Section 4 above, or if
It Buyer does not obtain and deliver a copy of the survey to Seller within the 1-day period
described in Section 4 above, then any matters that would be shown on a current accurate
and complete survey;
(e) such other matters as disclosed by the Commitment and waived or
accepted or deemed waived or accepted by Buyer pursuant to this Section 5;
(f) the standard or general exceptions contained in the Commitment; and
(g) acts done or suffered to be done by Buyer or its affiliates or anyone
claiming by, through or under Buyer or its affiliates.
Buyer's obligation to purchase the Realty is conditioned upon the Title Company being
prepared to issue, at Closing, a current, standard owner's title insurance policy (or a marked -up
and binding commitment therefor), without extended coverage over the printed standard or
general exceptions, in the amount of the Purchase Price allocated to the Realty insuring Buyer as
the fee simple owner of the Realty as of the date of recording the deed, subject to the Permitted
Exceptions ("Title Policy").
6. Inspection Contingency. During the fifteen (15) day period immediately
following the Effective Date (the "Inspection Period"), Buyer, at its sole expense, may obtain an
inspection of all buildings and related improvements located on the Realty and/or a current Phase
I environmental assessment of the Realty. Buyer shall not have the right to conduct any
sampling or other invasive testing of the water, soil, air or building improvements on or beneath
• the Property without Seller's express prior written consent. Buyer shall repair any damage done
6786978_2
to the Property by any such inspection. Buyer shall insure that any party entering onto the Realty
for purposes of inspection maintains commercially reasonable liability insurance naming Seller
as an additional insured, and upon request of Seller and prior to any such party entering onto the
Realty, Buyer shall deliver to Seller a certificate of insurance evidencing that such insurance is in
place. Buyer shall indemnify, defend and hold Seller harmless from and against any loss, cost,
liability or expense Seller may incur resulting from any such inspection. Buyer shall have until
the end of the Inspection Period to terminate this Contract by written notice to Seller resulting
from Buyer's objection to any matter shown in an inspection report or Phase I environmental
assessment, which materially affects the Realty or Buyer's intended use of the Realty. If Buyer
does not deliver a written notice to Seller before the end of the Inspection Period terminating this
Contract, then Buyer is deemed to have waived this inspection contingency and any right to
object to the condition of the Property. In no event shall Seller be required to cure any matter to
which the Buyer objects relating to the condition of the Property. If this Contract is terminated
by Buyer for any reason other than a default by Seller, then, as a condition to the return of any
earnest money deposited hereunder, Buyer shall, within five (5) business days after termination
of this Contract, cause to be delivered to Seller copies of any and all non-proprietary reports,
tests, results and analyses in Buyer's possession or under Buyer's control, including, but not
limited to, all title reports, surveys, environmental reports, geotechnical analyses, and traffic
reports, at no cost or expense to Seller. Seller's rights and Buyer's obligations under this Section
6 shall survive the Closing or any termination of this Contract.
7. No Representations or Warranties; AS -IS Condition.
(a) Buyer is hereby purchasing the Property in "AS -IS, WHERE -IS"
It condition and "with all faults", and agrees that it relies upon no warranties,
representations or statements by Seller, or any other persons for Seller, in entering into
this Contract or in closing the transactions described herein, except for the express
representation and warranty set forth in Section 3 hereof. Buyer's closing on the
acquisition of the Property shall constitute conclusive evidence that Buyer is satisfied
with the condition of and title to the Property and has waived or satisfied Buyer's survey,
title and inspection contingencies set forth in Sections 4 through 6 above. In closing and
completing this transaction, Buyer will have relied exclusively upon its own inspections
and reviews, and not upon any representation or warranty of Seller or its agents or
employees except those expressly set forth in Section 3 above.
(b) Except for the express representation and warranty set forth in Section 3
hereof, Seller makes no warranties, representations or statements whatsoever, express or
implied, concerning or relating to the Property, including without limitation: the income
or expenses of the Property; zoning and building codes and other similar restrictions;
availability or cost of utilities; the condition of the soils on the Property, the
environmental condition of the Property; the presence or absence of any hazardous
substances, hazardous materials, petroleum, or any substances regulated by federal, state
or local law in, on or under the Property; compliance of the Property with any law,
regulation, ordinance or similar requirement, including without limitation the Americans
with Disabilities Act; or the physical condition of the Property or any improvements
thereon. Buyer acknowledges that no agents, employees, brokers or other persons are
• authorized to make any representations or warranties for Seller.
6786978_2 4
•
(c) Buyer acknowledges and agrees that any Personalty to be conveyed in this
transaction from Seller to Buyer will be transferred by quit claim bill of sale, with no
representation, warranty or guaranty, expressed or implied, regarding the condition of or
the title to such Personalty, and Buyer further agrees to accept such Personalty in its "AS-
IS/WHERE IS" condition at closing.
(d) Buyer (and any party claiming through or under Buyer) hereby agrees that
following the Closing, Seller shall be fully and finally released from any and all claims or
liabilities against the Seller relating to or arising on account of the condition of or title to
the Property, including without limitation, any matters specifically referenced in this
Contract. This Section 7(a) through (d) shall survive the Closing.
8. Closing. The closing of this transaction (the "Closing") shall take place within
seven (7) days after the expiration of the Inspection Period (the "Closing Date"), at the offices of
the Chicago Title and Trust Company or at such other time and place as may be agreed upon by
Buyer and Seller. At Closing, Buyer shall deliver to the Title Company by wire transfer to an
account designated by the Title Company, immediately available funds in the amount of the
Purchase Price, as adjusted by any prorations and closing costs provided for herein, and such
affidavits, resolutions and other documents agreed between the parties, required for a legal
conveyance of real estate in the state where the Realty is located or otherwise required by the
Title Company to issue the Title Policy.
At the Closing, Seller shall deliver to the Title Company a Quit Claim Deed conveying
Seller's interest in the Realty to Buyer, subject only to the Permitted .Exceptions, a Quit Claim
bill of sale conveying Seller's interest, if any, in the Personalty to Buyer, if applicable, and such
affidavits, resolutions and other documents agreed between the parties, required for a legal
conveyance of real estate in the state where the Realty is located or otherwise required by the
Title Company to issue the Title Policy. All prorations required hereunder shall be computed as
of the Closing Date. Possession of the Property shall be delivered to Buyer on the Closing Date,
subject to the Permitted Exceptions. Buyer shall pay for recording the deed. Seller shall pay the
title insurance premium for the Title Policy to be issued to Buyer and gap coverage or
endorsement charges. Buyer shall pay for all other endorsement charges and the title insurance
premium for any loan policy, including endorsement charges related thereto. All escrow fees
and Title Company closing charges shall be shared equally by Seller and Buyer, except Buyer
shall pay any escrow fees and other charges related to Buyer's loan, if any. All other closing
costs, including without limitation, state, county and municipal transfer taxes and other recording
fees, shall be allocated as customary in the state and municipality in which the Realty is located.
9. Taxes.
(a) Taxes for Years Prior to Closinv. Seller will pay in full all general real
property taxes that are levied with respect to the Realty for tax years prior to the year of
closing. Seller shall receive a credit at Closing for the Buyer's prorated portion of the
real estate taxes due under the Commercial Lease Agreement dated March 15, 2012,
except Buyer will not receive a credit for the portion that was owed under the
Commercial Lease Agreement.
6786978_2 5
(b) Tax Challenges. If any tax challenge is ongoing with respect to the Realty
for general real estate taxes levied for any tax years prior to the year of Closing, Seller
will receive the full benefit of any refund arising out of such tax challenge. If any tax
challenge commenced by Seller results in a reduction in taxes for the general real estate
taxes levied for the year of Closing, the parties shall reprorate taxes for the year of
Closing upon receipt of the actual tax bill or adjusted tax bill. This Section 9(b)
expressly survives Closing.
(c) Taxes for Current Year of Closing. All general real property taxes that are
levied with respect to the Realty for the year of Closing will be prorated at the rate of
100% between Buyer and Seller as of the business day immediately prior to the Closing
Date.
10. Tenant Lease. Buyer expressly assumes the obligations under the
residential lease agreement ("Unit I Lease") by and between the Seller and Marcus T. Yakhms
and Nicole R. Mikels dated April 10, 2014. The Unit 1. Lease term is April 9, 2014 — March 31,
2015 for a monthly rental rate of Nine Hundred Seventy -Nine and 00/100 Dollars ($979.00).
The Tenants paid a security deposit of $979.00 to the Seller at the time of the Unit 1 Lease
execution and it will be assigned to Buyer at Closing.
11. Special Assessments. If applicable, at Closing Seller will pay all special
assessments that were levied prior to the Effective Date. All special assessments levied after the
Effective Date shall be paid exclusively by Buyer. Real estate taxes and special assessments
shall not be re -prorated after the Closing, except as provided in Section 9(b), above. Prepaid
expenses (including homeowner's association or similar assessments), if any, paid by Seller shall
be prorated on a per diem basis as of the Closing Date, and Seller shall receive a payment at the
Closing, in addition to the Purchase Price, equal to the allocated portion of such prepaid
expenses attributable to periods on and after the Closing Date.
12. Municipal Agreements. Seller and Buyer agree that upon Closing, Buyer will
assume any and all responsibilities and obligations under all existing development agreements,
declarations, escrow agreements and other agreements affecting the Property. In addition, Buyer
shall comply, at Buyer's sole expense, with all requirements imposed under any such agreement
or by any state, federal or local governmental entity or agency including, without limitation, any
requirement to construct infrastructure, construct improvements, install sidewalks and parkway
trees and landscaping, and to escrow funds, post letters of credit or any other required security in
connection with the development of the Property. On or before Closing, Buyer shall, at Buyer's
sole expense, replace any funds or letters of credit deposited in connection with any such
agreement or requirement. Buyer's failure to do so on or before the Closing Date shall be a
default under this agreement. The parties agree that all development work is Buyer's sole
responsibility and shall be performed at Buyer's sole cost and expense. Buyer shall indemnify,
defend and hold Seller harmless from and against any and all losses, actions, liabilities, damages,
costs and expenses, including reasonable attorneys' fees, incurred by Seller in connection with
the failure by Buyer to observe or perform any of the obligations pursuant to this Section 11.
Buyer and Seller agree that this paragraph shall be self -operative but, if requested by Seller,
Buyer shall execute a document in recordable form evidencing the agreements set forth in this
• Section. To the extent Seller, any of its affiliates, or any predecessor owner of the Property is
6786978_2 6
entitled to a refund of any funds (including the proceeds of any letter of credit drawn upon) or
other security deposited with respect to the Property before the Closing, any such refund shall be
and remain the property of Seller or its applicable affiliate, and to the extent Buyer receives any
such refund before or after the Closing, Buyer shall remit such refund to Seller or its affiliate
within five (5) days after Buyer's receipt therefor. Seller's right and Buyers obligations under
this Section 11, shall survive the Closing.
13. Condemnation. If before the Closing, any of the Realty is condemned under the
power of eminent domain, is the subject of a threatened condemnation, or is conveyed to a
condemning authority in lieu of condemnation, Seller shall notify Buyer in writing of the threat,
condemnation or conveyance within five (5) business days of its occurrence. Buyer shall within
ten (10) days of the notice have the option of (a) proceeding with the Closing (without any
reduction in the Purchase Price) and receiving the award or condemnation payment (or an
assignment thereof, if the same is not received by Closing), or (b) canceling this Contract and
receiving back the earnest money deposited, and the parties shall have no further obligations
hereunder except those provisions that expressly survive.
14. Indemnification. Buyer shall indemnify, defend and hold Seller harmless from
and against any and all losses, claims, actions, liabilities, damages, liens, costs and expenses,
including reasonable attorneys' fees, incurred by Seller (or its agents, consultants or affiliates)
arising out of or related to (i) any activities upon the Property by Buyer, its agents, contractors
and employees, or (ii) the failure by Buyer to observe or perform any of its covenants,
representations or obligations under this Contract. This Section 13 shall survive the Closing or
termination of this Contract.
15. Notices. All notices required or permitted to be given hereunder shall be in
writing and delivered by certified mail, postage prepaid, or by overnight delivery service, or shall
be personally served or sent via facsimile with confirmation of transmission, to Buyer and Seller
at the following addresses:
SELLER: City of Evanston
City Manager, Wally Bobkiewicz
2100 Ridge Avenue
Evanston, IL, 60201
With a copy to: City of Evanston
Corporation Counsel, W. Grant Farrar
2100 Ridge Avenue
Evanston, IL 60201
BUYER: Ward Eight, LLC
629 Howard Street
Evanston, IL 60202
Notices may be given on behalf of a party by their respective attorneys named above. All
notices shall be deemed received either when actually received or three (3) days after posting (if
• mailed), one business day after deposit with the delivery service (if sent by overnight delivery),
6786978_2
• or when delivered (if personally delivered), or if sent by facsimile transmission, upon
transmission as evidenced by the confirmation slip generated by the sender's facsimile machine.
Either party may change the above addresses by written notice to the other.
16. Default. If before the Closing, Buyer defaults in the full and timely performance
of any of its obligations hereunder, Seller shall be entitled to cancel this Contract and receive and
retain the earnest money deposited hereunder as liquidated damages, the parties agreeing that in
the event of a default hereunder before the Closing, actual damages would be impossible to
calculate; provided, however, notwithstanding anything contained herein to the contrary, nothing
contained in this Section 15 shall: (i) limit Seller's rights or remedies with respect to a breach or
default by Buyer after the Closing or of a covenant or obligation that survives the Closing or a
termination of this Contract; or (ii) limit Buyer's indemnification obligations under this Contract,
and Seller shall be entitled to any and all rights and remedies available at law and/or in equity if
Buyer defaults in the full and timely payment and performance of Buyer's indemnification
obligations under this Contract, or any of Buyer's covenants or obligations after the Closing, or
any covenant or obligation that survives the Closing or a termination of this Contract. If Seller
breaches any representation or warranty set forth in this Contract or defaults in the full and
timely performance of any of its obligations hereunder, Buyer, as its sole and exclusive remedy,
may elect to either terminate this Contract and receive a refund of the earnest money (in which
case the parties shall have no further obligations hereunder except those provisions that expressly
survive) or seek specific performance, provided that any action for specific performance must be
commenced within forty-five (45) days after Buyer obtains knowledge of Seller's default. If no
• such action is commenced within said 45-day period, Buyer shall be deemed to have waived its
right to bring or pursue an action for specific performance. Buyer hereby expressly waives,
relinquishes and releases any other right or remedy available to it at law, in equity or otherwise
by reason of Seller's default of its obligations hereunder, including, without limitation, any rights
Buyer may have to bring an action to recover direct, consequential, punitive or any other
damages.
•
17. Real Estate Commissions. Seller hereby represents and warrants that it has not
engaged the services of real estate agent, broker or firm in connection with the Property or this
real estate transaction. Seller hereby agrees to defend, indemnify and hold Buyer harmless from
any and all loss, cost or expense from any claim for real estate commission made by any agent,
broker or firm engaged by Seller in connection with the Property or this transaction. Buyer
hereby represents and warrants that it has not engaged the services of any real estate agent,
broker or firm in connection with the Property or this real estate transaction. Buyer hereby agrees
to defend, indemnify and hold Seller harmless from any and all loss, cost or expense from any
claim for real estate commission made by any agent, broker or firm engaged by Buyer in
connection with the Property or this transaction. Each party's rights and obligations under this
Section 16 shall survive the Closing or any termination of this Contract.
18. Entire Agreement. This Contract contains the entire agreement between Seller
and Buyer and there are no other terms, conditions, promises, understandings, statements or
representations, express or implied, regarding the transaction contemplated hereby. This Contract
may be amended only by a further written document signed by each of the parties.
6786978 2 8
• 19. Assignment. Buyer shall have the right to assign this Contract without Seller's
prior written consent only to any entity owned and/or controlled by Buyer or its principals,
provided that not less than five (5) business days before the Closing, Buyer gives notice of such
assignment to Seller accompanied by reasonable evidence that the assignee is owned and/or
controlled by Buyer. All other assignments shall require Seller's prior written consent, which
may be withheld in Seller's sole discretion. Notwithstanding the foregoing, if this Contract is
assigned by Buyer hereunder, Buyer shall remain jointly and severally liable, along with the
assignee, for the Buyer's obligations under this Contract. Buyer shall cause any permitted
assignee to acknowledge in writing that it will be bound by all of the terms and conditions of this
Contract, with said acknowledgement set forth in a form subject to Seller's reasonable approval.
This Section 18 shall survive the Closing or termination of this Contract.
20. Successors and Assigns. Subject to Section 18 above, the provisions of this
Contract shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors, assigns, executors, administrators and legal representatives.
21. Captions. The captions of the paragraphs in this Contract have been inserted for
convenience of reference only and shall in no way modify or restrict any provision hereof or be
used to construe any of the provisions hereof.
22. Severability. if any provision of this Contract is held invalid or unenforceable,
the invalidity or unenforceability shall be limited to the particular provision(s) involved and shall
not affect the validity or enforceability of the remaining provisions.
• 23. Counterparts and Transmittal of Signatures. This Contract may be executed
in one or more counterparts, and all such executed counterparts shall constitute the same
agreement. A signed copy of this Contract transmitted by facsimile or email shall be treated as
an original and shall be binding against the party whose signature appears on such copy.
24. Exculpation. Buyer agrees to look solely to Seller's interest in the Property for
the satisfaction of any liability or obligation arising under or in connection with this Contract, the
transactions contemplated hereby or the documents executed pursuant hereto, or for the
performance of any of the covenants, warranties or other agreements contained herein or therein,
and Buyer shall not collect or attempt to collect any judgment or other amounts out of any assets
of Seller other than Seller's interest in the Property. Further, Buyer agrees that it does not have
and will not have any claims or causes of action against any disclosed or undisclosed officer,
director, employee, trustee, shareholder, partner, member, principal, parent, subsidiary or other
affiliate of Seller, or any officer, director, employee, trustee, shareholder, partner, member or
principal of any such parent, subsidiary or other affiliate, arising under or in connection with this
Contract, the transactions contemplated hereby or the documents executed pursuant hereto. The
terms of this Section 23 shall survive the Closing and any termination of this Contract for any
reason.
25. Miscellaneous.
6786978_2 9
• (a) All questions with respect to the construction or interpretation of this
Contract shall be determined in accordance with the laws of the State of Illinois, without
regard to conflict of law rules. Time is of the essence of this Contract.
•
•
(b) If any date upon which action is required under this Contract shall be a
Saturday, Sunday or legal holiday, the date for such action shall be extended to the first
day after such date which is not a Saturday, Sunday or legal holiday.
[NO FURTHER TEXT ON THIS PAGE]
[SIGNATURE PAGE FOLLOWS IMMEDIATELY]
6786978_2 10
• IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed as
of the day and year first above written.
is
•
Date: SELLER:
City of Evanston, an Illinois municipal corporation
By: Wally Bobkiewicz
Title: City Manager
Date: BUYER:
Ward Eight, LLC
By: Anne Carlson
Title: Manager
6786978_2 11
•
•
•
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
LOT 6 AND THE EAST 0.62 FEET OF LOT 5 IN BLOCK 1 IN NILES HOWARD
TERMINAL ADDITIONAL, BEING A SUBDIVISION OF THE SOUTH 6.25 CHAINS (412
'/z FEET) OF THAT PART OF THE NORTHEAST '/4 OF SECTION 30, TOWNSHIP 41
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING WEST OF
THE RIGHT OF WAY OF THE CHICAGO AND NORTH WESTERN RAILROAD IN COOK
COUNTY, ILLINOIS.
Real property address: 629-631 Howard Street, Evanston, Illinois, 60202
PIN: 11-30-209-024-0000
6786978_2
• EXHIBIT B
•
•
PERSONAL PROPERTY
All personal property, if any, located on the Realty (other than any personal property owned by a
tenant, as applicable)
6786978_2