HomeMy WebLinkAboutORDINANCES-2012-043-O-124/11/2012
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AN ORDINANCE
Authorizing the City Manager to Negotiate and Execute a Real Estate
Purchase Agreement for the Real Property at
1229 Chicago Avenue, Evanston, Illinois
WHEREAS, the City of Evanston seeks to acquire real property located at
1229 Chicago Avenue, Evanston, Illinois 60202 and legally described on Exhibit"N', which
is incorporated herein by reference (the "Subject Property"); and
WHEREAS, the Subject Property is owned by Northwestern University
("Northwestern"); and
WHEREAS, the Subject Property is part of a larger development of adjoining
properties at 1211 Chicago Avenue and 1223-1225 Chicago Avenue, Evanston, Illinois;
and
WHEREAS, the City Council of the City of Evanston has determined that City
ownership of the aforesaid Subject Property is necessary, appropriate, required, and in the
best interests of the City of Evanston to facilitate said future development; and
WHEREAS, the City Council has determined that the best interests of the City
of Evanston would be served by negotiating a real estate purchase contract for the
purchase of said Subject Property from Northwestern (the "Northwestern Real Estate
Purchase Agreement"); and
WHEREAS, the City Manager recommends that the City Council hereby
approve the negotiations and further execution of the Northwestern Real Estate Purchase
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Agreement on terms consistent with the agreement attached as Exhibit "B" and •
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incorporated herein by reference; and
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The City Council of the City of Evanston hereby approves the
negotiation of the Northwestern Real Estate Purchase Agreement for the Subject Property.
SECTION 2: The City Manager is authorized to negotiate all terms and
conditions with respect to the Northwestern Real Estate Purchase Agreement for the
Subject Property as the City Manager may deem fit and proper.
SECTION 3: The City Manager and the City Clerk, respectively, are hereby
authorized and directed to execute, attest, and deliver the Northwestern Real Estate
Purchase Agreement and such other documents, agreements, and certificates as may be
necessary to effectuate the Northwestern Real Estate Purchase Agreement if a final
agreement is reached and is herein authorized.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 5: 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 given effect without the
invalid application or provision, and each invalid application of this ordinance is severable.
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.
SECTION 7: The findings and recitals contained herein are declared to be •
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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.
Introduced: �.r%� I 2012
Adopted:( a, 2012
Attest:
Mcineyepene, City Clerk
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Approved:
2012
Eliza# B. Tisdahl, Mayor
Approved as to form'.
W. Gran't Farrar, Corporation Counsel
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C4A:11-3 IuI-7
Legal Description
LOT TWENTY (20) IN BLOCK SEVENTY-SIX (76) IN NORTHWESTERN UNIVERSITY
SUBDIVISION OF THAT PART OF THE NORTH HALF OF THE NORTH HALF OF
SECTION NINETEEN (19), TOWNSHIP FORTY-ONE (41) NORTH, RANGE FOURTEEN
(14), EAST OF THIRD PRINCIPAL MERIDIAN, LYING EAST OF CHICAGO AVENUE
(EXCEPT FIFTEEN AND ONE HALF (151/2) ACRES IN THE NORTHEAST CORNER) IN
COOK COUNTY, ILLINOIS.
PIN: 11-19-200-032-8001
Commonly Known As: 1229 Chicago Avenue, Evanston, Illinois 60202
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EXHIBIT B
Real Estate Purchase Agreement
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REAL ESTATE SALE CONTRACT
This agreement ("Agreement") is entered into this _ day of 2012 by and between •
the CITY OF EVANSTON, an Illinois municipal corporation, ("Purchaser") and
NORTHWESTERN UNIVERSITY ("Seller").
1. Purchase Price. The Purchaser agrees to purchase from the Seller at a price of SIX
HUNDRED FIFTY THOUSAND DOLLARS ($650,000.00) (the "Purchase Price"), on the
terms set forth herein, the following described real estate in Cook County, Illinois:
LEGAL DESCRIPTION TO BE ADDED BY SELLER'S ATTORNEY PRIOR TO
CLOSING.
commonly described or known as 1229 Chicago Avenue (Lot 20), Evanston, Illinois, a lot
measuring approximately feet by feet improved with a building of approximately
square feet (the "Property"). Specific lot dimensions will be per survey (however,
variations between the survey and the foregoing approximate figures shall not affect the
validity or substance of this Agreement).
2. Convevance. Seller agrees to sell the real estate and the property described above at the
price and terms set forth herein, and to convey or cause to be conveyed to Purchaser, or
Purchaser's nominee, title thereto by a recordable Warranty Deed, with release of homestead
rights, if any, subject only to: (a) covenants, conditions and restrictions of record; (b) private,
public and utility easements and roads and highways, if any; (c) special taxes or assessments
for improvements heretofore completed; (e) mortgage or trust deed specified below, if any,
and (f) general taxes for the year of closing and subsequent years including taxes which may •
accrue by reason of new or additional improvements during the year(s); and (g) any leases
(as expressly described below).
3. Earnest Money. Upon the Seller's execution of this Agreement (the "Execution Date"),
Purchaser will deposit in escrow, as earnest money, the sum of ZERO Thousand Dollars ($
ZERO). The balance of the Purchase Price will be paid in the manner described under
Section 4 (Closing) in U.S. funds in the form of a certified or cashier's check, or similar
funds, in the amount of the balance owed plus or minus prorations.
4. Closing. The time of the closing shall be no later than sixty (60) days after the expiration or
waiver of the Inspection Period ("Closing Date"), at a time to be agreed, unless the parties
mutually agree otherwise, at the Skokie, Illinois office of Chicago Title Insurance Company.
Notwithstanding the foregoing, given that certain contingency provided under Section 25
(concerning the consummation of the sale of an adjacent parcel to another party in a
coordinated transaction), the Closing Date may be postponed by mutual agreement of the
parties to this Agreement. The Purchase Price shall be due on the earlier of (a) 1 July 2013,
or (b) within three (3) business days following the date upon which Purchaser or such third
party, including such persons described under Section 25 below, as may be appropriate,
secures a temporary or final certificate of occupancy or similar permission with regard to
certain retail grocery store operations contemplated within the Property.
5. Inspection Period. Purchaser's obligations hereunder are subject to, at Purchaser's sole and •
unfettered discretion, Purchaser's approval of the Property for Purchaser's intended use. For
that purpose, Purchaser is given sixty (60) days from the Execution Date to inspect the
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Property and to obtain all necessary testing and municipal and governmental approvals for its
• intended use (the "Inspection Period").
Purchaser's approval or termination, hereunder, shall be at Purchaser's sole discretion and
Purchaser may terminate this agreement during the Inspection Period for any reason (or no
reason), whatsoever. If during the Inspection Period the Purchaser notifies the Seller in
writing of its election to terminate this agreement, the agreement shall be terminated and null
and void, and, except as to Purchaser's covenants and obligations as to indemnification, the
parties shall be relieved of any further obligation and responsibility under this agreement and
the earnest money and accrued interest thereon shall be returned to the Purchaser. In the
event Purchaser does not or fails'to give written notification of its election to terminate the
agreement prior to the expiration of the Inspection Period, Purchaser shall be deemed to have
waived its rights under the Inspection Period and shall be obligated to purchase the Property.
With notice to Seller, and subject to any rights of the current tenants, Purchaser and its agents
shall have the right to reasonably access the Property during the Inspection Period.
Purchaser or its agents may conduct reasonable research, non-destructive testing, evaluation
or initiate any application or appeal for zoning (subject to the provisions below) or City of
Evanston approvals ("Governmental Approvals") Purchaser deems reasonably necessary or
conduct no research, testing evaluation or zoning application or appeal, at Purchaser's sole
cost and expense and at Purchaser's sole and unfettered discretion. Any destructive testing,
other than small material sampling required for asbestos testing, if recommended by
Purchaser's environmental consultant, shall only be conducted with the written consent of
Seller; in such event Seller may, but is not so obligated, require its supervision over any
destructive testing and the posting by Purchaser of a reasonable deposit.
• Buyer shall not cause or permit any mechanic's liens or liens to be recorded against the
Property as a result of any actions taken by Purchaser or Purchaser's agents during the
Inspection Period. After conducting any inspections, Purchaser shall promptly restore the
Property to the condition it was in immediately prior to conducting any inspections or tests,
as reasonably approved by Seller.
In the event that Purchaser desires to initiate such Governmental Approvals, it shall do so at
its sole risk, cost, and expense, and timely provide the Seller with copies of all materials
provided to and/or received from any governmental body. Purchaser shall timely advise
Seller of any and all meetings and other proceedings, which Seller shall have the right to
attend and observe. In no event shall any Governmental Approvals become final or attach in
any manner to the Property until after the Closing is fully consummated. Prior to initiating
any Governmental Approvals, Purchaser shall deposit with Seller a power of attorney in such
form as reasonably approved by Seller, allowing Seller to terminate any and all applications
commenced by Purchaser ("Power of Attorney"). Such Power of Attorney may be utilized
by Seller in the event of any breach by Purchaser and/or in the event Purchaser does not
proceed to acquire the Property.
6. Inspection Period Documents. Seller shall deliver or cause to be delivered to Purchaser or
Purchaser's agent, not more than five (5) days after the Execution Date, the following
• information in writing regarding the Property and other items to be conveyed under the terms
hereof (or if any portion of such information does not exist, a statement that such information
does not exist):
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(A) Copies of and a list of any leases, service, maintenance, management or other contracts
relating to the operation of the Property; •
(B) Copies of and a list of Seller's interest in any warranties, guarantees, permits and licenses
relating the above and the Property and Seller's interest in any trade names used in
connection with the Property (not including Seller's name);
(C) Copies of the following documents which are in the possession of Seller and agents of
Seller at the Effective Date: all engineering, utility, sewer and water service, asbestos,
environmental and subsurface, wetlands, flood plain and traffic studies, examinations or
correspondence relating thereto; all reports, notices and other documents pertaining to any
process for site plan approval, zoning, and variance process previously undertaken;
correspondence with adjacent property owners; any blueprints, architectural and building
drawings, structural, HVAC, mechanical and plumbing plans and specifications, survey,
engineering and environmental reports in Seller's possession in connection with the Property,
the notices, reports and registrations Seller has filed, if any, pursuant to Seller's obligations
under the Illinois State Fire Marshal Regulations for Underground Storage Tanks, SARA
Title II, the OSHA Hazard Communication Standard, and/or any other Federal, State or
Local Health and Safety Regulations and all documents concerning any previous or potential
litigation concerning the Property. In the event Closing does not occur, Purchaser shall
promptly return the above to Seller, except to the extent needed by Purchaser to pursue a
claim against Seller based on Seller's default herein;
(D) An existing boundary survey of the Property, if in the possession of Seller, and
7. In the event that, after Seller has furnished the above information or a statement that such
information does not exist, if Seller shall come to possess any newer or new information on •
or before the Closing Date, Seller shall furnish copies of such newer or new information to
Purchaser no later than fifteen (15) days after receipt thereof; provided, however, that
notwithstanding anything herein to the contrary, such newer or new information shall be
furnished to Purchaser, if then in existence, no later than two days prior to the Closing Date.
Release. Purchaser does hereby release and forever discharge Seller, and its officers, trustees,
beneficiaries, employees, and agents, from any and all claims, demands, citations, and causes
of action of any kind or nature which may arise as a result of Purchaser's activities related to
Purchaser's inspections, investigations, testings, and Governmental Approvals with respect to
the Property. Purchaser shall hold Seller, and its officers, trustees, beneficiaries, employees,
and agents, harmless and defend such Seller parties against any and all claims, proceedings
or causes of action resulting from any action or inaction of Purchaser, its agents or
employees, with respect to the Property, including costs and reasonable attorneys' fees
incurred, through and including any and all appellate proceedings. Purchaser shall cause its
contractors to carry Worker's Compensation Insurance in accordance with statutory
requirements, Automobile Liability Insurance and Commercial General Liability Insurance,
naming Seller as an additional insured, covering such contractors on or about the premises
with policy limits not less than two million dollars ($2,000,000.00) in the event of personal
injury to any number of persons or damage to Property, arising out of any one occurrence or
in such reasonable amounts as Seller shall require and to submit such certificates evidencing
such coverage to Seller prior to the commencement of such work. Seller shall be named as
loss payee as to any and all Property damage. This covenant shall survive termination of this •
Agreement.
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8. Conveyance of Title. At Closing, Seller agrees to deliver to Purchaser a Warranty Deed,
• in recordable form, conveying the Premises to Purchaser free and clear of all liens, claims
and encumbrances except for the Permitted Exceptions (as hereinafter defined).
9. Title Commitment; Title Policv. Purchaser, at its sole risk, cost, and expense, shall obtain
and arrange for delivery to the parties within ten (10) days following the date hereof a
Commitment for Owner's ALTA Title Insurance Policy Form B with extended
coverage ("Commitment") issued by Title Company, setting forth the state of title to the
Property and all exceptions and restrictions of record. Said Commitment shall require the
issuance of a 3.0 zoning endorsement including parking (based upon plans and
specifications), modified owner's comprehensive endorsement (based upon plans and
specifications), (collectively, the "Endorsements"). Along with such commitment,
Purchaser shall request that the Title Company furnish Purchaser with copies of all
documents affecting the Property, as reflected in the Commitment. In the event any
exceptions appear in such Commitment or title documents other than the standard printed
exceptions (which shall be deleted in the Owner's Title Policy as hereafter provided) that
are unacceptable to Purchaser, or the Title Company cannot or refuses to issue
Endorsements or other items desired or required by Purchaser, then Purchaser shall, within
five (5) days of receipt of the Title Commitment listing exceptions, notify Seller, in
writing, of any objections to such exceptions or other matters. Any such exceptions or
other matters not objected to by Purchaser in this time period shall hereinafter be referred to
as "Permitted Exceptions"; provided, however, that mortgage liens, judgment liens,
mechanic's liens, tax liens and other liens of definite or ascertainable amounts which are
capable of being cleared from title by the payment of a sum certain ("Monetary
Liens") shall not be Permitted Exceptions under any circumstances, regardless of whether
• or not Purchaser objects thereto in accordance herewith, and Monetary Liens shall be
cleared from title at closing by the payment or escrowing of reasonably sufficient funds to
cause such exceptions to be removed from Purchaser's title policy, such payments to be
made by Seller. Any exceptions objected to by Purchaser within the time period specified
above, and any Monetary Liens shall hereinafter be called "Unpermitted Exceptions".
Provided such occurs before the Closing Date, Purchaser shall have five (5) days to
object to any exceptions raised by the Title Company subsequent to the date of expiration of
the Contingency Period for the first time ("Supplemental Exceptions"). Any Supplemental
Exceptions objected to by Purchaser with the five (5) day period shall hereinafter be called
"Unpermitted Exceptions." Seller shall give written notice to Purchaser within five (5)
days of the date of Purchaser's notice of objection to title matters as to whether Seller will
cure the matters objected to by Purchaser at or prior to Closing and such undertaking to
cure, if any, shall be a binding obligation of Seller under this Agreement. In the event
Seller fails to cure an Unpermitted Exception at or prior to Closing, Purchaser may
terminate this Agreement and receive a return of the Earnest Money or may elect to proceed
to close hereunder and take a credit at closing in the aggregate amount of any Monetary
Liens. At Closing Seller shall pay to bring the Commitment to policy, with coverage
over the standard, pre-printed exceptions and subject only to the Permitted Exceptions and
the cost of the Endorsements.
10. Survey. Seller, at its sole cost and expense, will obtain a survey of the Property prepared in
• accordance with the Minimum Standard Detail Requirements for ALTA/ACSM Land Title
Surveys, a survey of the Premises, dated as of a date on or after the Contract Date, certified
to Purchaser and its assigns, Purchaser's designated lender(s), and the Title Company
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("Survey"). The Survey shall, include Table A Optional Item No.'s: 1, 2, 3, 4, 5 (on a
separate sheet from the other matters), 6, 7 (if applicable), 8, 9 (if applicable), 10, 11, 13, •
14, 15 and 16. Should the Survey indicate the presence of any encroachments by or upon
the Premises or other matters which do or could adversely affect Purchaser's use, Purchaser
may terminate this Agreement by providing written notice to Seller no later than the earlier
of (A) five (5) days after Purchaser's receipt of the Survey, or (B) fifteen (15) days prior to
the Closing Date. In the event that Purchaser does not tender timely notice its right to
terminate shall be null and void.
11. Tax Prorations. Seller warrants and represents that Seller is currently exempt from real
estate taxation by Cook County, Illinois. However, tenants of the Property are subject to
leasehold taxes by Cook County, Illinois.
12. Rent Proration. Seller shall credit to Purchaser at Closing Purchaser's prorata share of rent
collected by Seller for the month in which the closing occurs. Rent due that is in arrears that
is collected by Purchaser shall be credited seventy percent (50%) to Seller and thirty percent
(50%) to Purchaser. However, Purchaser has no affirmative obligations to collect any rent in
arrears at time of Closing.
13. Transfer Stamos. Any and all stamp taxes imposed by State law on the transfer of title,
including that imposed by the State of Illinois, County of Cook, and by municipal ordinance
shall be borne by Seller (or be exempt therefrom).
14. Default. If the Purchaser defaults, earnest money shall be forfeited and paid to Seller as
Seller's sole remedy for such default at law or equity. If Seller defaults, earnest money, at the
option of Purchaser shall be refunded to Purchaser, but such refunding shall not release Seller
from its obligations under this agreement; notwithstanding the foregoing, Purchaser's remedy •
shall be limited to an action for specific performance and direct damages (expressly
excluding consequential and punitive damages, loss of profits, and similar items). In the
event of a dispute as to which party is entitled to the earnest money, the Escrowee may
deposit the escrowed funds with the Clerk of the Circuit Court pending final resolution. The
prevailing party in any action shall be due its costs and reasonable attorney's fees.
15. Escrow. At the election of either party, upon notice to the other not less than five (5) days
prior to the time of Closing, this sale shall be closed through an escrow at Chicago Title
Insurance Company in accordance with the general provisions of the usual form of Deed and
Money Escrow Agreement then in use by Chicago Title Insurance Company, with such
special provisions inserted in the escrow agreement as may be required to conform with this
agreement. Upon the creation of such escrow, anything herein to the contrary
notwithstanding, payment of the purchase price and delivery of the deed shall be made
through the escrow and this contract and the earnest money shall be deposited in the escrow.
The parties shall equally share the cost of the escrow.
16. Time. Time is of the essence in this agreement.
17. Notices. All notices required herein shall be in writing and shall be served on the parties at
the addresses following their signatures. The serving of a notice by facsimile transmission to a
party's respective attorneys and other persons indicated below shall be sufficient; any other service
shall be by a nationally recognized, overnight courier. When service is by facsimile, such shall be •
deemed served on the day of transmission, provided such is on or before 3:00 p.m. of a business day,
or the next business day if thereafter; if by courier, then the next business day after dispatch.
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If to Seller:
• Ranee Berliant
Real Estate Asset Manager
Northwestern University
1800 Sherman Avenue, Suite
204
Evanston, Illinois 60201
(847) 467-3450
(847) 467-2800 [facsimile]
Susan Wuorinen
Assistant General Counsel
Office of General Counsel
Northwestern University
633 Clark Street
Evanston, Illinois 60208-1109
(847) 491-4838
(847) 467-3092 [facsimile]
K. Thomas Stevens
Stevens & Associates
200 West Superior Street
Suite 410
• Chicago, Illinois 60654
(312) 786-2244
(312) 786-1331 [facsimile]
If to Purchaser:
Wally Bobkiewicz
City Manager
City of Evanston
Evanston, Illinois 60201
(847) 866-2936(847) 448-8093
[facsimile]
W. Grant Farrar
Corporation Counsel
City of Evanston
2100 Ridge Avenue
Evanston, Illinois 60201
18. Assignment. Purchaser may assign this Agreement to another entity only with Seller's
written consent, which shall not be unreasonably withheld, conditioned, and/or delayed.
19. Intentionally deleted.
20. SELLER'S REPRESENTATIONS
Seller hereby represents, covenants and warrants to Purchaser as follows, each of which is true and
correct as of the Effective Date, and shall be true and correct at Closing and shall survive the Closing
and shall not merge into the deed:
(A) Seller is the record owner of the Property, has the full power, right and authority to grant the
rights provided under this Agreement, to assign and convey the Property, subject to any and all
leases, and to consummate this transaction, all as herein provided;
(B) Except as is listed below, Seller and agents of Seller, based upon Seller's actual knowledge
(defined below), have received no threat or notice of the commencement of any legal action against
Seller for the damaging, taking or acquiring of, or in connection with all or any part of, the Property
and there is no pending or threatening eminent domain, condemnation or other governmental taking
of the Property or any part thereof. If, prior to the Closing Date, all or any portion of the Real Estate
is condemned or taken by eminent domain, or Seller becomes aware of or receives a notice of a
proposed condemnation, Seller shall, within ten (10) days following any of the above events, give
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Purchaser notice thereof in writing. If a condemnation or taking in fact occurs and such
condemnation or taking is substantial (as hereinafter provided), then notwithstanding anything to the
contrary herein, Purchaser shall have the option, exercisable by notice to Seller given within ten (10) •
days following Seller's notice to Purchaser of such condemnation or taking, to terminate this
Agreement, whereupon this Agreement shall be terminated, the Earnest Money Deposit and interest
thereon shall forthwith be returned to Purchaser and thereafter neither party shall have any further
rights or obligations hereunder. If (a) Purchaser does not elect to terminate this Agreement in the
event of a substantial condemnation or taking, or (b) such condemnation or taking is not substantial,
Seller shall convey the Property on the Closing Date to Purchaser in its then condition, upon and
subject to all of the other terms and conditions of this Agreement, and assign to Purchaser all of
Seller's right, title and interest in and to any claims Seller may have to the condemnation awards
and/or any causes of action with respect to such condemnation or taking of the Real Estate and pay
to Purchaser all payments theretofore made to Seller by such condemning authorities. A
condemnation or taking shall be deemed substantial if it results in the inability of Purchaser to
construct Purchaser's development as contemplated by this Agreement:
NONE
(C) Based upon Seller's actual knowledge, Seller or agents of Seller have received no notices from
any governmental authority of zoning, building, licensing, permit, fire, or health code violations in
respect to the Real Estate or which to a material extent could adversely affect the financial condition
or continued operation of Seller, nor are any licenses or permits existing or required to be obtained
from any governmental authority affecting the Property except as follows:
NONE is
(D) Based upon Seller's actual knowledge , there is no pending or threatened litigation, claims,
demands or liens with respect to the Property or which to a material extent could adversely affect the
financial condition or continued operation of Seller except as follows:
NONE
(E) Based upon Seller's actual knowledge, all water lines, sanitary sewers, storm sewers, electric,
gas, telephone or other utilities or services are located on the Real Estate and appropriate utility
easements permitting use and service of said utilities are of record; notwithstanding the foregoing,
Seller shall not be required to secure any easements which are not of record, or to secure any
amendments to recorded instruments;
(F) Based upon Seller's knowledge, no fact or condition exists which could result in the termination
or impairment of access to the Real Estate from adjoining public streets or which could result in
discontinuance of presently available or otherwise necessary sewer, water, electric, gas, telephone or
other utilities or services;
(G) Based upon Seller's actual knowledge:
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(i) the Property is not in violation of any Federal, State or local law, ordinance or
• regulation relating to industrial hygiene or to the environmental conditions on or
under the Property including but not limited to, soil and ground water conditions;
(ii) there are no environmental, health or safety hazards on or under the Property,
including, but not limited to soil and ground water conditions;
(iii) neither Seller has nor any other person, including, but not limited to, Seller's
predecessors in title to the Property ever caused or permitted any hazardous material
(as hereinafter defined) to be placed, held, located or disposed of on, under or at the
Property or any part thereof or into the atmosphere or any water course, body of water
or wetlands of the Property, and none of the Property, has ever been used (whether by
Seller, or to the actual knowledge of Seller by any other person) as a treatment,
storage or disposal (whether permanent or temporary) site for any hazardous material
(except the Seller has knowledge that underground storage tanks were previously
located on the Real Estate, but Seller represents that such tanks have been removed in
accordance with all requirements of law and all contamination caused thereby has
been remediated);
For purposes of this Agreement hazardous material means and includes, without limitation,
definitions found in 42 U.S.0 9601 et seq. (CERCLA); 42 U.S.C. 6901 et. seq. (SWDA) as amended
or hereafter amended; (i) petroleum including but not limited to crude oil or any fraction thereof
which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute); (ii) asbestos in any form or condition, and (iii) any radioactive
material, including, but not limited to, any source, special nuclear or by-product material as defined
at 42 U.S.C. et. seq.; or (iv) that defined under any other applicable Federal, State, or local law,
• regulation, ordinance or requirement, all as amended or hereafter amended;
(I) Based upon Seller's actual knowledge, Seller and agents of Seller have not been subject to, or
received any notice of, any private, administrative or judicial action, or notice of any intended
private, administrative, or judicial action, relating to the presence or alleged presence of hazardous
materials in, under, upon or emanating from the Property, , and there are no pending or threatened
actions or proceedings (or notices or potential actions or proceedings) from any governmental
agency or any other person or entity regarding any matter relating to health, safety, or protection of
the environment;
(I) Based upon Seller's actual knowledge, there have not been and there are not any past or present
events, conditions, circumstances, activities, practices, incidents or actions which could reasonably
be expected to interfere with or prevent continued compliance with any Federal, State, or local law,
regulation, ordinance or requirement relating to health and safety and protection of the environment
or which may give rise to any legal liability, or otherwise form the basis of any claim, action, suit,
proceeding, hearing or investigation against or involving the Property based on any Federal, State or
local law, regulation, ordinance or requirement relating to health, safety and protection of the
environment or violation or alleged violation thereof,
(J) Based upon Seller's actual knowledge, the Real Estate is not located in the 100-year flood
plain, flood way or wetlands.
• (K) Northwestern University is "exempt" from real estate taxes;
(L) Intentionally deleted;
(M) Intentionally deleted;
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(N) Seller is not insolvent;
(0) The performance by Seller of all the terms and provisions contained in this Agreement and in
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any and all other documents delivered to Purchaser shall not constitute an event of default under any
other agreements to which Seller is now or hereafter may be a parry, nor will any such acts in any
way violate any statute, regulation or administrative direction;
(P) Unless Purchaser defaults prior to the Closing Date or unless this Agreement is terminated
prior to such date, then other than (i) physical changes, except repairs, to the Real Estate, if any,
mentioned in this Agreement which Seller expressly agrees to make under the terms hereof, (ii)
physical changes to the Property made by Seller to comply with applicable law, and (iii) ordinary
wear and tear, Seller shall between the last date Purchaser makes an inspection and the Closing Date:
(i) Advise Purchaser promptly of any litigation, arbitration, administrative hearing, or
legislation before any governmental body or agency of which Seller is notified, concerning or
affecting the Property which is instituted after the date hereof,
(ii) Not further encumber the Property or modify the terms or condition of any existing
encumbrances, if any;
(iii) Not take, or omit to take any action that would have the effect of violating any of the
representations, warranties, covenants and agreements of Seller contained in this Agreement;
(iv). Without the prior consent of Purchaser, not enter into any new written or oral service
agreement or other agreement with respect to the Property that will not be fully performed by the
parties thereto on or before the Closing Date;
(v) Keep observe and perform Seller's material obligations as landlord under leases presently
in effect, and as long as tenants are not in default under the leases, nor cause termination of any
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lease;
vi) Not amend any lease or enter into any new lease concerning the Property without the
written consent of Purchaser and shall not amend any service agreement or enter into any new
service agreement concerning the Property unless the same is terminable without penalty by the then
owner of the Property upon not more than 30 days' notice;
(Q) Based upon Seller's actual knowledge, Seller is not aware of any unrecorded liens against the
Property which will not be satisfied out of the Purchase Price;
(R) All obligations of Seller arising from the ownership and operation of the Property which
accrued prior to the Closing Date, including, but not limited to salaries, taxes, leasing commissions,
and the like, have been paid as they become due or will be paid at or prior to Closing. Except for
obligations for which provisions are herein made for proration or other adjustments at Closing, there
will be no obligations of Seller with respect to the Property outstanding as of the Closing Date;
(S) Seller shall maintain, or cause to be maintained, in full force and effect (subject to any
expiration thereof) until Closing the insurance policies covering the Property, and/or shall continue
to self -insure as historically employed. Seller shall renew or replace any policy expiring before
Closing with a policy having a term of beyond the Closing Date;
(T) Seller shall not withdraw, settle or otherwise compromise any protest or reduction proceeding
affecting real estate taxes assessed against the Real Estate for any tax year in which the Closing is to
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occur or any subsequent tax year without the prior written consent of Purchaser, which consent shall
not be unreasonably withheld;
(U) If Seller is a corporation:
0 (i) The execution of this Agreement on behalf of Seller by the person(s) who executed
this Agreement on behalf of Seller has been duly approved;
(ii) The execution by Seller of this Agreement and any other documents which may from
time to time hereafter be executed by Seller and delivered to Purchaser shall not constitute a breach
of any provision contained in the Articles of Incorporation or by-laws of Seller; and
(iii) Seller is and during the term of this Agreement will continue to be in good standing
in the state in which Seller is incorporated and the state in which the Property is located.
(V) On the Closing Date no tenancies will exist on the Property other than that disclosed in the
leases already provided to Purchaser.
Notwithstanding any provision to the contrary under this Agreement and/or applicable law, the
obligations of Seller to examine, investigate, and take similar action, and the phrase "based upon
Seller's actual knowledge," "Seller's knowledge," and/or phrases of similar import, shall solely and
exclusively mean the ready knowledge of Ranee Berliant, not personally but as the Real Estate Asset
Manager of the Seller, utilizing a reasonable standard of care to review information in her
possession.
21. AS -IS, WHERE -IS NATURE OF CONVEYANCE
Except as expressly provided under this Agreement, Purchaser acknowledges and stipulates that the
conveyance of the Property by Seller is strictly "as -is," and "where -is," with any and all faults,
deficiencies, discrepancies, burdens, and obligations of any nature, type, and extent whatsoever,
known or unknown, actual or contingent, existing, arising now, or at any time hereafter.
• 22. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER
Purchaser hereby represents, covenants and warrants to Seller as follows, each of which is true and
correct as of the Effective Date, and shall be true and correct at Closing and shall survive the Closing
and shall not merge into the deed:
(A) Purchaser has all requisite power and authority to consummate the transaction
contemplated by this Agreement and has by proper proceedings duly authorized the execution and
delivery of this Agreement and consummation of the transaction contemplated hereby.
(B) This Agreement when executed and delivered by Purchaser will constitute the valid and
binding agreement of Purchaser enforceable against Purchaser in accordance with its terms.
23. FURTHER ASSURANCES From the Effective Date of this Agreement, both Seller and
Purchaser covenant to each other that, in addition to the acts and deeds recited herein and
contemplated to be performed, executed and delivered by each, each shall perform, execute and
deliver or cause to be performed, executed and delivered at, prior to, or after the Closing, any and all
further reasonable acts, deeds, and assurances and execute any documents or other writings as the
other or the Title Insurer may reasonably request in order to consummate the transactions
contemplated herein or to confirm or perfect any right to be created or transferred herein or pursuant
to this transaction, provided that neither party shall be required to incur any material expenses in
connection therewith.
• 24. CONFIDENTIALITY
The parties shall maintain the terms of this Agreement and the transaction generally as confidential,
including but not limited to any and all deliverables of Seller, disclosing such only on a
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commercially reasonable "need to know" basis. In the event a parry requires disclosure to any other
person, then such recipients shall be bound by the instant confidentiality requirement.
25. CONTINGENCY REGARDING ADJACENT PARCEL
Any and all obligations of Seller and Purchaser under this Agreement are expressly contingent upon
Seller entering into a contract with a separate purchaser (upon terms acceptable to Seller in its sole
and absolute discretion) and consummating a transfer of certain real property adjacent to the
Property, commonly known as 1231, 1233, and 1235 Chicago Avenue ("Seller Related
Transaction") and the Purchaser entering into a contract with a separate seller (upon terms
acceptable to the Purchaser in its sole and absolute discretion) and consummating a transfer of
certain real property adjacent to the Property, commonly known as 1223-1225 Chicago Avenue
("Purchaser Related Transaction'). In the event that the Seller Related Transaction or the Purchaser
Related Transaction does not occur for any reason, then this Agreement shall be subject to
termination by Seller or Purchaser upon five (5) days written notice, with no further obligation upon
the respective parties.
SELLER:
NORTHWESTERN UNIVERSITY
By:
Its:
PURCHASER:
CITY OF EVANSTON
By: Wally Bobkiewicz
Its: City Manager
DATE: DATE:
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