HomeMy WebLinkAboutORDINANCES-2008-096-O-08•
8/5/2008
96-0-08
AN ORDINANCE
Authorizing the City Manager to
Execute a Real Estate Contract for
the Sale of City -Owned Real Property Located in
the 700 Block of Chicago Avenue in Evanston, Illinois
to Evanston Devco, LLC
WHEREAS, the City of Evanston owns real property in the 700 block
of Chicago Avenue in Evanston, Illinois, legally described in Exhibit A attached
hereto and incorporated herein by reference (the "Subject Property"); and
WHEREAS, the City Council of the City of Evanston has determined
that ownership of the aforesaid Subject Property is no longer necessary,
• appropriate, re uired, or in the best interests of the City of Evanston;
q ty son, and
WHEREAS, the City Council has determined that the best interests of
the City of Evanston would be served by the sale of said Subject Property to a
qualified party for private use; and
WHEREAS, pursuant to Ordinance 87-0-08, the City Council, by a
vote of at least two-thirds (2/3) of the elected Aldermen then holding office, did
direct the City Manager to negotiate the sale of said Subject Property on behalf of
the City; and
WHEREAS, pursuant to Ordinance 87-0-08, the City Manager has
negotiated the sale of the Sub0 ject Property; and
WHEREAS, the City Manager recommends that the City Council •
hereby approve the negotiated sale of the Subject Property, with the City of
Evanston as Seller and Evanston Devco, LLC, as Buyer; and
WHEREAS, the City Council hereby 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 Evanston Devco, LLC, on terms consistent with
the Agreement for Purchase and Sale of Real Estate, attached hereto as Exhibit B
and incorporated herein by reference (hereinafter, the "Agreement"); and
WHEREAS, as required by City Code §1-17-4-2 (B), a Notice of Intent
to Sell Certain Real Estate, which is attached hereto as Exhibit C and incorporated
herein by reference, has been published in the Evanston Review, a newspaper of
general circulation in the City of Evanston, and said publication was not 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 sale of the Property,
THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That City Council of the City of Evanston finds as fact
the recitals hereinabove set forth.
SECTION 2: That the City Council of the City of Evanston hereby
approves the negotiated sale of the Subject Property, with the City of Evanston as
Seller and Evanston Devco, LLC, as Buyer.
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0 SECTION 3: The City Manager is hereby authorized and directed to
sign, and the City Clerk is hereby authorized and directed to attest, the Agreement,
pursuant to the terms of which the Subject 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 Subject Property as the City
Manager may deem fit and proper.
SECTION 4: The City Manager and the City Clerk, respectively, are
hereby authorized and directed to execute, attest, and deliver such other
documents, agreements, and certificates as may be necessary to effectuate the
sale herein authorized.
SECTION 5: That all ordinances or parts of ordinances in conflict
0-11 herewith are hereby repealed.
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SECTION 6: That this Ordinance 96-0-08 shall be in full force and
effect from and after its passage, approval, and publication in the manner
provided by law.
SECTION 7: That if any provision of this Ordinance 96-0-08 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.
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Ayes: 7
is
Nays:
V
Introduced: NLU&J-/ , 2008 Approved:
Adopted ' �l 6i.,`� 2Z, 2008 1 �1j`' , 2008
rrai►ie H. Morton, Mayor
Atte
1
Rodney reene, City Clerk
Approved as to form:
Elke To er-Purze, I
First Assistant Co
,rpdation Counsel
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• EXHIBIT A
Legal Description
LOTS 9 AND 10 IN BLOCK 2 IN KEDZIE AND KEENEY'S. ADDITION TO
EVANSTON, A SUBDIVISION OF PART OF THE SOUTH Y2 OF THE NORTH 1/2
OF THE SOUTHWEST 1/4 OF SECTION 19, TOWNSHIP 41, RANGE 14, EAST
OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
PIN: 11-19-407-027-0000
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EXHIBIT B •
Evanston Devco, LLC Agreement for
Purchase and Sale of Real Estate
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AGREEMENT FOR PURCHASE
is AND SALE OF REAL ESTATE
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE (this
"A-reement") is entered into as of the Effective Date per Section 10.18. which is
2008, by and between THE CITY OF EVANSTON"("Seller"), and EVANSTON DEVCO, LLC,
a Delaware limited liability company ("Purchaser"),
RECITALS:
A. Seller legally or beneficially owns the land (the "Land") which is legally
described on Exhibit A-1 attached hereto and depicted on Exhibit A-2 attached hereto. The Land
consists of approximately 17,100 square feet and is located on Chicago Avenue, south of the
intersection with Kedzie Street, in the City of Evanston, County of Cook, State of Illinois.
B. The Land, all improvements, fixtures, and tangible personal property located on
the Land; all easements and appurtenances belonging to the Land; and all interest of the
titleholder of the Property in any streets or other rights of way adjacent to the Land, are
collectively referred to as the "Property".
D. Purchaser desires to purchase from Seller and Seller desires to sell to Purchaser
the Property on the terms and conditions set forth below.
• NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1
AGREEMENT TO PURCHASE AND SELL
Purchaser agrees to purchase and Seller agrees to sell the Property to Purchaser or its
nominee at the Purchase Price described below, subject to the terns and conditions set forth in
this Agreement. In furtherance of such agreement, Seller agrees to convey or cause to be
conveyed to Purchaser good and marketable fee simple title to the Property subject to the
Permitted Exceptions (defined below). Such conveyance shall be by recordable special warranty
deed and the other instruments specified in Section 8.4 below.
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Property to be paid by Purchaser to
the Seller shall be NINE HUNDRED THOUSAND and N0/100 Dollars ($900,000.00) (the
"Purchase Price").
2.2 Payment of the Purchase Price. The Purchase Price, less the Earnest Money,
• and plus or minus any adjustments, credits or pro -rations provided for herein, shall be paid at the
Closing, by cashier's or certified check or by wire transfer of current funds.
2.3 Earnest Monev. •
(a) Within three (3) Business Days after the Effective Date, Purchaser shall pay into a
strict joint order escrow with Seller at Chicago Title Insurance Company (the "Title Insurer") the
sum of $50,000.00 as earnest money (together with any interest earned thereon, the "Earnest
Money")
(b) The Earnest Money may be invested by the Title Insurer as Purchaser directs in
United States Treasury Bills or a federally insured money market account. Seller and Purchaser
shall share equally the cost of the joint order escrow, but Purchaser shall bear the cost of any
investment fee charged by the Title Insurer as escrowee. If this Agreement is terminated because
of a Seller default or failure of an Article 3 contingency or another condition to Purchaser's
obligation to close set forth in this Agreement, then the Earnest Money shall be refunded to
Purchaser. The Earnest Money shall be applied to the Purchase Price at the Closing.
2.4 Closine.Costs. Seller -shall pay the cost of. (a) the Title Commitment and Title
Policy (including extended coverage and the Contiguity Endorsement); and (b) obtaining and
recording any releases of any mortgages, liens or other encumbrances which are not Permitted
Exceptions. Purchaser shall pay the cost of (v) recording the deed;-(w) the cost of any title
endorsements other than the Contiguity Endorsement; (x) the cost of the Survey; (y) all other
escrow and other fees imposed in connection with the closing of Purchaser's purchase money
loan (if any), and (2) the cost of applying for and securing the Governmental Approvals.
Purchaser and Seller shall share equally the escrow fees for the Closing. All other closing costs
shall be apportioned according to prevailing local custom. Each party shall pay its own legal •
fees.
2.5 Closine Pro -rations and Adiustments. All items of income or expense other
than real estate taxes and assessments ("Taxes") shall be pro -rated according to prevailing local
custom. If the Property is currently tax exempt, there shall be no real estate tax pro -ration at
Closing. Provided that the Property is not currently tax exempt, unpaid Taxes for the applicable
tax year which are not yet due and payable on the Closing Date shall be pro -rated as follows.
Any Taxes which are assessed only against the Property as a separate parcel shall be pro -rated to
the Closing .Date on the basis of 105% of the most recent ascertainable bill or assessment
therefor. Such pro -ration shall be re -pro -rated upon receipt of the actual bill. If all or a portion
of the Property is located in a tax or assessment parcel (a "Tax -Parcel") which also includes other
property, then any unpaid Taxes for the applicable tax year which are not then due and payable
on the Closing Date with respect to such Tax Parcel shall be pro -rated to the Closing Date as
follows. Purchaser's credit shall be based on 105% of the portion of the most recent
ascertainable bill or assessment for the Tax Parcel which is allocable to the Property.
ARTICLE 3
CONDITIONS PRECEDENT
In addition to the terms and conditions set forth elsewhere in this Agreement, Purchaser's
obligation to purchase the Property shall be subject to the following. conditions precedent:
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3.1 Land Due Diligence Contingencv. Review Period.
(a) During the sixty (60) day period (the "Land Due Diligence Review Period")
following the Effective Date, Purchaser and its agents and contractors shall have the right to
enter upon the Property and conduct such tests and investigations as may be necessary for
Purchaser to determine whether there are any matters which in Purchaser's judgment would
make unfeasible Purchaser's intended use of the Property together with the McKay Property and
McKone Property (each as defined in Section 3.3 below) for a residential apartment community
having a number of apartment units satisfactory to Purchaser but not more than 232, and
approximately 8,400 square feet of retail or business uses with four (4) residential stories above
two (2) levels of parking, retail and residential space for a total building height above grade of
not more than 67 feet (the "Intended Use"). Among the matters Purchaser will investigate are (i)
a zoning of the Property; (ii) soils and environmental matters; (iii) the state of title to the
Property as evidenced by the Title Commitment; (iv) matters shown on the Preliminary Survey;
(v) the availability and sufficiency of utilities, including water, sanitary sewer, storm/retention
facilities, telephone, gas and electricity; and (vi) the existence of any laws, regulations or judicial
matters affecting the Property. Within five (5) business days after the Effective Date, Seller shall
provide Purchaser with a copy of each of the items (the "Delivery Items") described on Exhibit B
that affect the Property and which are in Seller's possession or control. The Land Due Diligence
Review Period shall be extended day to day for each day Seller is late in delivering the Delivery
Items to Purchaser.
(b) In the event the Purchaser, acting in its sole discretion, determines that any of the
matters reviewed by Purchaser would make unfeasible Purchaser's Intended Use or purchase of
the Property, then Purchaser may elect to terminate this Agreement by delivering written notice
of termination to Seller at any time on or prior to the last day of the Land Due Diligence Review
Period. If Purchaser fails to give Seller notice of termination by the end of the Land Due
Diligence Review Period, then the Land Due Diligence Contingency will be deemed waived.
(c) If Purchaser so elects to terminate this Agreement, the Earnest Money shall be
refunded to Purchaser. In such event, Purchaser shall (i) return to Seller any materials Seller had
delivered to Purchaser in connection with Purchaser's review, and (ii) deliver to Seller (without
cost to Seller) any and all title reports, surveys, soil tests, or environmental studies pertaining to
the Property which Purchaser has obtained during the Land Due Diligence Review Period. Items
(i) and (ii) are called the "Return Items".
(d) Purchaser shall repair any damage to the Property resulting from Purchaser's
activities on the Property under this Agreement. Purchaser shall indemnify, defend, and hold
harmless Seller and Seller's elected and appointed officials, employees and agents from and
against any and all loss, damage, liability or expense (including reasonable attorneys fees) and
claims and liens of mechanics or materialmen any of the indemnified parties may incur as a
result of Purchaser's access, other than any property damage or injury to any person, which
damage or injury is (i) related to Hazardous Materials (as defined in Section 6.1(f) below) in
existence on the Property or (ii) is caused by the negligence of Seller. The indemnity obligations
of Purchaser under this Section 3.1 shall survive the Closing or a termination of this Agreement,
• notwithstanding anything contained to the contrary in this Agreement. Any investigation or
inspection conducted by Purchaser pursuant to this Agreement, in order to verify satisfaction of
any conditions precedent to Purchaser's obligations under this Agreement or to determine
whether Seller's representations and warranties are true and accurate, shall not affect (or 40
constitute a waiver by Purchaser of) any of the provisions of this Agreement or Purchaser's
reliance on such provisions.
3.2 Governmental Aunrovals Contingencv.
(a) Both Purchaser's and Seller's obligation to close shall be contingent upon
Purchaser's ability to obtain the Governmental Approvals (defined in subparagraph (b) below)
for the Property, McKay Property and McKone Property (collectively the "Assembled Pronerty")
which are necessary for Purchaser's Intended Use and which are satisfactory in all respects to
both Purchaser and Seller. During the Land Due Diligence Review Period and thereafter through
the Governmental Approvals Period (defined below), Purchaser .at its expense shall seek to
obtain or to confirm the availability of the Governmental Approvals. It is understood that Seller
being a .party to this Agreement shall not in any way obligate it to grant the Governmental
Approvals for the Assembled Property, and that Purchaser's application(s) for the Governmental
Approvals will be reviewed under normal City of Evanston processes subject to the normal City
of Evanston standards of review without regard to the existence of this Agreement. If Purchaser
determines in its sole discretion at any time during the Governmental Approvals Period that it
will not be able to secure satisfactory Governmental Approvals, Purchaser shall have the right,
by written notice to Seller, to terminate this Agreement. If Purchaser -fails to give notice of
satisfaction of the Governmental Approvals by the end of the Governmental Approvals Period,
Purchaser shall be deemed to have terminated this Agreement. If Purchaser gives a notice of
satisfaction of the Governmental Approvals, then Seller shall have the right to give notice that •
Seller is not satisfied with the -Governmental Approvals. If Seller fails to give such notice within
ten (10) days after receipt of Purchaser's satisfaction notice, then Seller will be deemed to be
satisfied with the Governmental Approvals and the contingency in this Section 3.2 shall be
satisfied. If Seller gives notice that it is not satisfied with the Governmental Approvals after
Purchaser has given a notice of satisfaction, then at Purchaser's election Purchaser.may by notice
to Seller elect to (i) terminate this Agreement or (ii) reinstate the Governmental Approvals
Period. If Purchaser fails to give notice of its election to Seller within ten (10) days after receipt
of Seller's dissatisfaction notice, Purchaser will ' be deemed to have elected to reinstate the
Governmental Approval Period. Upon a termination of this Agreement under this Section 3.2.
the Earnest Money shall be returned to Purchaser and Purchaser shall deliver the Return Items to
Seller. As used in this Agreement, the "Governmental Aunrovals Period" shall mean the period
beginning on the Effective Date and running through the later of June 30, 2009 and the
termination of Governmental Approvals Period in the McKay and McKone Agreement.
(b) As used in this Agreement, the "Governmental Aunrovals" shall mean the
obtaining of the following items on terms and conditions satisfactory to Purchaser and Seller: (i)
approval of a Planned Development suitable for Purchaser's Intended Use, (ii) approval of a final
site plan and final subdivision plat for Purchaser's Intended Use, (iii) satisfactory negotiation of
any fees, impositions, donations or other governmental requirements associated with the Planned
Development or Purchaser's Intended Use, (iv) approval of any variations, special uses, zoning
text amendments, or other zoning, subdivision, building or other code relief needed for
Purchaser's Intended Use, (v) approval of any curb cuts or access permits needed for Purchaser's •
Intended Use, (vi) Purchaser satisfying itself that water, sanitary and storm sewer services
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• sufficient to service Purchaser's Intended Use will be available to serve the Property on terms
and conditions satisfactory to Purchaser, and that each can be used by Purchaser at tap -on fees
and rates satisfactory to Purchaser, and (vii) Purchaser satisfying itself that it can obtain building
permits and other authorizations from Seller and other public agencies and authorities as may be
necessary or appropriate for Purchaser's Intended Use.
3.3 McKav and McKone Contineencv.
An affiliate of Purchaser has previously entered into an Agreement for Purchase and Sale
of Real Estate dated December 7, 2007 (as amended, the "McKay and McKone Agreement")
with Gettysburg Partners LLC, an Illinois limited liability company ("McKone Seller") and
McEvan LLC, an Illinois limited liability company ("McKav Seller") to purchase that certain
parcel of land commonly known as Lots 3, 4, 5 (except the portion thereof owned by
Commonwealth Edison), 6, 7 and 8 being approximately 47,160 square feet on Chicago Avenue
north of the Property and depicted on Exhibit A-2 hereto (the "McKav Prooertv") and Lots 1
and 2 being approximately 19,200 square feet on the corner of Kedzie Street and Chicago
Avenue north of the McKay Property and depicted on Exhibit A-2 hereto (the "McKone
Prooerty"). Both Purchaser's and Seller's obligation to close on the purchase of the Property
shall be further contingent on Purchaser closing on the acquisition of the McKay Property and
the McKone Property pursuant to the McKay and McKone Agreement, simultaneous with the
Closing under this Agreement. If Purchaser is unable for any reason to close the McKay and
McKone Agreement and the McKay and McKone Agreement terminates, Purchaser shall
provide written notice of such termination to Seller, at which point either party shall have the
• right by written notice to the other party, to terminate this Agreement effective 30 days after such
termination notice, provided that if the McKay and McKone Agreement is reinstated during such
30-day period, such reinstatement will nullify the termination notice, and further provided that in
the event of a seller's default under the McKay and McKone Agreement for so long as Purchaser
is proceeding diligently and in good faith to enforce the McKay and McKone Agreement, such
agreement shall not be regarded as terminated, and the time for Closing under this Agreement
will be extended. Upon a termination of this Agreement under this Section 3.3. the Earnest
Money shall be returned to Purchaser and Purchaser shall deliver the Return Items to Seller.
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3.4 Financial Continaencv.
It shall be a condition to Seller's obligation to close, that Seller verify, to Seller's
commercially reasonable satisfaction, that Purchaser has secured adequate equity and/or debt
funding sources to construct the improvements pursuant to Purchaser's Intended Use (the
"Financial Continaencv"). If Purchaser fails to meet the Financial Contingency as set forth
above prior to Closing, Seller may, by giving written notice to Purchaser, terminate this
Agreement, but if this transaction closes then Seller will be deemed to have waived the Financial
Contingency. Upon such a termination, the Earnest Money shall be returned to Purchaser and
Purchaser shall deliver the Return Items to Seller.
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ARTICLE 4 .
TITLE INSURANCE AND SURVEYS
4.1 Title Commitment. Preliminary Survev. Within thirty (30) days after the
Effective Date Purchaser at its expense will obtain:
(a) a preliminary survey of the Property ("Preliminary Survev") by a licensed
surveyor approved by Purchaser acting reasonably (the "Survevor"), certified as having been
made in compliance with 2005 ALTA/ACSM Land Survey Standards, including Table A items
1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 13, 16, 17 and 18.
(b) a commitment for the Property (together with all subsequent versions thereof
issued prior to the Closing, the "Title Commitment") for a title policy in the form of an ALTA
2006 Form owner's title insurance policy issued by the Title Insurer with extended coverage over
the standard printed exceptions and with, access, owner's comprehensive, zoning 3.0, survey,
and separate tax lot endorsements, and an endorsement specifically insuring that the Property and
the McKay Property are contiguous to one another (the "Contiguity Endorsement"); and
(c) copies of all documents evidencing the exceptions raised on the title commitment
other than mortgage debt to be paid off at the Closing.
If this transaction Closes then at Closing Seller shall reimburse Purchaser for the respective costs
of the Preliminary and Final Survey and Title Commitment.
4.2 Permitted Exceptions. Prior to the end of the Land Due Diligence Review •
Period, Purchaser shall provide Seller with a list of those title exceptions (including matters of
survey) which are satisfactory to Purchaser, acting reasonably. Such list shall be attached to this
Agreement as Exhibit C and shall constitute the "Permitted Exceptions" under this Agreement
unless and except to the extent that the list is modified pursuant to Section 4.4 hereof. Prior to
the end of the Land Due Diligence Review Period, Purchaser acting reasonably may also specify
any additional endorsements it shall require on each Title Policy. The provision of such
endorsements shall be a condition to Closing, but the expense of such endorsements shall be
borne by Purchaser.
4.3 Title Policv: Final Survev.
(a) Prior to the Closing, Purchaser shall obtain an updated survey of the Property (the
"Final Survev") which shall: (i) reflect the recording of any subdivision plat to be recorded
pursuant to Section 3.2 hereof; (ii) indicate the monumenting of the Property corners; (iii) be
certified to Purchaser, Purchaser's lender, if any, Seller and the Title Insurer; and
(b) At the Closing, Seller shall deliver to Purchaser an Owner's Title Insurance
Policy in the form of the 2006 ALTA Form Owner's Policy from the Title Insurer, or in lieu
thereof a marked -up title commitment from the Title Insurer (either being referred to herein as
the "Title Policv") which shall: (i) be dated the Closing Date; (ii) name Purchaser or its permitted
assignee as the insured; (iii) have a liability amount equal to the Purchase Price; (iv) show •
Purchaser or its permitted assignee as the owner of the Property in fee simple subject to no
exceptions other than the Permitted Exceptions; (v) include extended coverage over the standard
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• printed exceptions; (vi) include the endorsements listed in Section 4.1(b) together with any other
endorsements specified by Purchaser pursuant to Section 4.2: and (vii) include the Contiguity
Endorsement. At Purchaser's option the Title Policy shall be a combined Policy for the
Assembled Property provided Seller will not be obligated to pay more than the portion of the
cost thereof that is equitably allocable to the Property.
4.4 Obiection and Cure Period. If any Title Commitment or Preliminary Survey or
any updates of any of them contain any matters not constituting Permitted Exceptions or liens
which are of a definite and ascertainable amount which can be removed at Closing by payment
of money ("Removable Liens"), then the Seller may, at its election, within thirty (30) days after
Seller's receipt from Purchaser of the Permitted Exceptions or a subsequent version of the Title
Commitment or Survey, as the case may be: (a) cause the non -permitted matters to be deleted
from the Title Commitment; (b) subject to Purchaser's approval of such arrangement (acting
reasonably), cause the Title Insurer expressly to insure over such non -permitted matters; or (c)
object in writing to Purchaser to the exclusion of any one or more of such matters as a Permitted
Exception.
If Seller fails or elects not to cause all of the non -permitted matters to be deleted or
insured over within the aforementioned thirty (30) day period, Purchaser may by written notice
to Seller within five (5) days after the expiration of Seller's 30-day objection and cure period
elect to: (x) terminate this Agreement, in which case all of the Earnest Money shall be returned
to Purchaser, or (y) agree to take title subject to the matters at issue, in which case the Permitted
Exceptions shall be expanded to include the additional matters not deleted or insured over, but
with a deduction from and offset against the Purchase Price for all Removable Liens. If the
updated Title Commitment or Survey containing the non -permitted matter is issued within thirty
(30) days prior to the Closing, the Closing Date shall be extended as necessary to give the Seller
the benefit of the full 30-day objection and cure period and to give Purchaser the benefit of the
full five-day election period referred to above.
ARTICLE 5
COVENANTS
5.1 Seller's Covenants. Seller with respect to the Property hereby makes the
following covenants to Purchaser which shall be applicable so long as this Agreement is in
effect:
(a) Seller shall not from and after the date of this Agreement voluntarily or
consensually perform any act which results in any additional exceptions to title that would
survive the Closing without Purchaser's consent.
(b) Seller shall not enter into any agreements (including leases) or amend any existing
agreements which affect the Property and which would survive the Closing without Purchaser's
consent;
(c) Seller shall not participate in any discussions or negotiations with any other party
• regarding the sale or any similar transaction involving the Property;
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(d) Seller shall furnish Purchaser with any notices Seller receives from governmental
authorities pertaining to the Property; 0
(e) Seller shall promptly notify Purchaser of any event or circumstance which Seller
becomes aware of which causes a representation or warranty in this Agreement to be untrue or a
covenant or condition in this Agreement incapable or unlikely to be performed or satisfied;
(f) Seller shall not remove or materially disturb any portion of the Property including
cutting trees, removing landscaping, or performing site grading, without Purchaser's consent;
and
(g) Seller shall allow Purchaser access to the Property throughout the term of this
Agreement on the terms and conditions set forth in Section 3.1.
If Seller breaches any of the foregoing covenants in any material respect by the Closing
Date then Purchaser may elect to terminate this Agreement. If Purchaser elects to terminate, the
Earnest Money shall be returned to Purchaser, without limiting any other remedies available to
Purchaser under Section 9.2 below.
5.2 Purchaser's Covenants. Purchaser with respect to the Property hereby makes
the following covenants to Seller which shall survive the Closing:
(a) Right of Reverter. The deed to be delivered by Seller at Closing pursuant to
Section 8.4(a) below shall contain the following reservation of a right of reverter in favor of •
Seller: "This conveyance is subject to a right of reverter in favor of Grantor if certain conditions
are met, which right is as set forth in Exhibit D of an Agreement for Purchase and Sale of Real
Estate between Grantor and Grantee dated , 2008. Such right of reverter
shall expire on the four (4)-year anniversary date of this deed if such right has not been
exercised, which exercise would be evidenced by recordation of a quitclaim deed re -conveying
the Property from Grantee to Grantor." Seller and Purchaser hereby agree to the terms of Exhibit
D attached hereto which terms shall survive the closing.
(b) AMLI Control. Until the Approved Development (as defined in Exhibit D) on
the Assembled Property has received its final certificate of occupancy, unless Seller approves
otherwise, the developer of such Approved Development shall be an entity controlled by AMLI
Residential Properties, L.P. This restriction shall not apply to any institutional construction
mortgage lender who provided funding for construction of the Approved Development and who
acquires title to the Assembled Property by reason of such mortgage or to any party acquiring
title through such lender. Purchaser agrees that the text of this subsection 5.2(b) may be
incorporated into the Planned Development Ordinance for the Approved Development.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Seller's Reuresentations and Warranties. Seller, with regard to the Property,
represents and warrants to Purchaser as follows: 0
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(a) Authoritv. Seller is the owner of the fee simple absolute title to the Property.
Seller has full power and authority to sell and convey or to cause the conveyance of the Property
as provided for in this Agreement and this Agreement is binding and enforceable against Seller.
(b) Agreements. Neither the execution and delivery of this Agreement by Seller nor
the consummation of the transactions contemplated hereby will result in any breach or violation
of or default under any judgement, decree, order, mortgage, lease, agreement, indenture or other
instrument to which Seller is a party.
(c) Code Violations. Seller has not received any written notice of and is not aware
of any violation or claimed violation of any applicable zoning, subdivision, building, fire, health,
environmental, and other codes, statutes, ordinances or laws affecting the Property, except as
disclosed in writing to Purchaser by Seller prior to or during the Land Due Diligence Review
Period.
(d) Litigation. There is no litigation, proceeding, claim or investigation, including,
without limitation, any condemnation, zoning, or environmental proceeding, pending or, to the
best of the Seller's knowledge, threatened, which affects the Property or this transaction, except
as disclosed in writing to Purchaser by Seller prior to or during the Land Due Diligence Review
Period.
(e) Zoning. The Property is zoned Cla (Commercial Mixed Use) in the City of
Evanston, Illinois. There are no actions pending or threatened to change the zoning or
• comprehensive plan designation of the Property.
(f) Hazardous Materials. Except as may be set forth in any environmental reports
delivered to Purchaser and listed on Exhibit E: (i) Seller has no knowledge of any Hazardous
Materials currently located on the Property, and (ii) Seller has not used, stored, or placed any
Hazardous Materials under, on, or at the Property, and (iii) to the best of Seller's knowledge, all
underground storage tanks previously located on the Property were either removed or closed in
accordance with all Environmental Laws, and (iv) to the best of Seller's knowledge, there are no
violations or claimed violations of Environmental Laws with respect to the Property. As used
herein "Environmental Laws" shall mean all statutes specifically described in the definition of
"Hazardous Materials" and all other federal, state or local laws, regulations or orders relating to
or imposing liability or standards of conduct concerning any Hazardous Material. As used
herein, "Hazardous Materials" shall mean any hazardous, toxic or dangerous substance, material,
waste, gas or particulate matter which is defined as such for purposes of regulation by any local
government authority, the State where the Property is located, or the United States Government,
including, but not limited to, any material or substance which is (i) defined as a "hazardous
waste," "hazardous material," "hazardous substance," "extremely hazardous waste," or
"restricted hazardous waste" under any provision of law, (ii) petroleum, (iii) asbestos, (iv)
polychlorinated biphenyl, (v) radioactive material, (vi) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act,'-33 U.S.C. Sec. 1251 et seq. (33 U.S.C. Sec.
1317), (vii) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. Sec. 6901 et seci. ectio(42 U.S.C. Sec. 6903), or (viii)
. defined as a "hazardous substance" pursuant to Sn 101 of the Comprehensive
9
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sec. 9601 et sec . (42 •
U.S.C. Sec. 9601).
(g) Surviving Agreements. There are no leases, service agreements, or other
agreements affecting the Property which will survive the Closing, except the lease/sublease to
the auto dealership which the City will terminate at closing if the tenant/subtenant thereunder
have agreed to terminate.
(h) Utilities. To Seller's knowledge, all water, sewer, gas, electric and telephone
utilities are installed to the boundaries of the Property or in contiguous streets, and there are no
recapture agreements or other agreements requiring any out -of -the -ordinary payments for
connection to such utilities.
(i) Disclosure. During the Land Due Diligence Review Period, Seller delivered to
Purchaser true and correct and complete copies of all Delivery Items in Seller's possession or
control, and Seller has not failed or omitted to communicate in writing to Purchaser any other
agreement, document or fact which is material to the Property or this Agreement.
6.2 Purchaser's Representations and Warranties. Purchaser represents and
warrants to Seller as follows:
(a) Agreements. Neither the execution and delivery of this Agreement by Purchaser
nor the consummation of the transactions contemplated hereby will result in any breach or
violation of or default under any judgement, decree, order, mortgage, lease, agreement, indenture •
or other instrument to which Purchaser is a party;
(b) Authority. Subject to obtaining any necessary investment committee or other
internal approval of this transaction, which can be presumed if Purchaser does not terminate this
Agreement at or before the end of the Governmental Approvals Period, Purchaser has full power
and authority to execute this Agreement and purchase the Property as provided for in this
Agreement and this Agreement is binding and enforceable against Purchaser.
(c) Property Tax Covenant. At the Closing, Purchaser shall record a restrictive
covenant or deed restriction that shall -run with the land which states as follows: "In the event
that the Purchaser, its successors, or assigns, are or become exempt from the payment of real
estate taxes, said tax-exempt entity or entities shall make annual payments in lieu of taxes, at the
then -current rate applicable to that portion of the Property said tax-exempt entity or entities own,
to the City of Evanston, Evanston/Skokie Community Consolidated School District 65, and
Evanston Township High School District 202, for a period of thirty (30) years."
6.3 Breach of Representations and Warranties. Each party warrants that each of
the representations and warranties made by it in this Article 6 or appearing in other parts of this
Agreement is true as of the date of this Agreement and will also be true as of the Closing. Each
party shall notify the others promptly if such party becomes aware prior to the Closing Date of
any matter which would render any of the representations or warranties of such party untrue in
any material respect. If any of the representations and warranties by Seller shall not be true as of
the Closing and such breach has been disclosed to Purchaser and is other than as a result of 40
Seller's deliberate or willful act, Purchaser may alternatively as its sole remedy either (a) waive
10
such breach and close the transaction contemplated herein, or (b) terminate this Agreement, in
which event the Earnest Money shall be returned to Purchaser. In the case of a breach of any of
Seller's representations or warranties as a result of Seller's willful or deliberate act, the
Purchaser may exercise its remedies under Article 9.
6.4 NO OTHER WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN THIS AGREEMENT, SELLER IS SELLING ITS APPLICABLE
PROPERTY TO PURCHASER IN AN "AS -IS" CONDITION, AND PURCHASER
AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, TO PURCHASER REGARDING THE PROPERTY.
ARTICLE 7
INTENTIONALLY OMITTED
ARTICLE 8
THE CLOSING
8.1 Definition; Time and Place. The performance by Seller and Purchaser of their
respective obligations under this Agreement directly or through the completion of the escrow
deposits required of them to be made and the delivery of the Purchase Price to the Seller by the
Closing Escrowee after delivery of the Title Policy to Purchaser and delivery of possession of the
Property to Purchaser shall constitute the closing of the sale (the "Closine"). The date of the
• Closing (the "Closing Date") shall be forty-five (45) days after the expiration or Purchaser's
waiver of the Governmental Approvals Period, or such later date as may be extended by mutual
written consent of Purchaser and Seller or by operation of this Agreement. Notwithstanding
anything herein to the contrary, in addition to the Govemmental Approvals condition this
transaction is additionally conditioned on satisfaction of the conditions set forth in Sections 3.3
and 3_4 above, or waiver of such conditions by the party or parties benefited by such conditions.
Purchaser may extend the Closing Date as needed for satisfaction of such conditions so long as
Purchaser is pursuing such satisfaction diligently and in good faith. The Closing shall take place
at the Chicago office of the Title Insurer.
8.2 .Possession. Possession of the Property shall be delivered at the Closing.
8.3 Escrow. This sale shall be closed through a "New York style" escrow (the
"Escrow") with the Title Insurer (the "Closing Escrowee"), in accordance with the general
provisions of the usual form of escrow agreement then in use by the Closing Escrowee, with
such special provisions inserted in the escrow agreement as may be required to conform with this
Agreement (the "Escrow Agreement"). The Escrow and Escrow Agreement shall be auxiliary to
this Agreement, and this Agreement shall govern in the event of any inconsistency with the
Escrow Agreement. Upon the creation of the Escrow, payment of the Purchase Price and
delivery of the: deed and other closing documents shall be made through the Escrow and the
Earnest Money shall be deposited in the Escrow. The attorneys for the parties are hereby
authorized to execute the Escrow Agreement and any amendments thereto. Each party shall
• have the right to inspect all documents prior to or at the time of deposit in the Escrow. - The
11
escrow fee for the Escrow shall be shared equally by the parties, except that the escrow fees •
attributable to any ancillary money lender's agreement shall be borne by Purchaser alone.
8.4 Documents To Be Delivered By Seller At Closine. At the Closing Seller shall
deliver or cause to be delivered to Purchaser directly or, if either party elects, through the
Escrow, the following with respect to its applicable Property, each of which shall be in form
reasonably satisfactory to Purchaser and (if applicable) the Title Insurer:
(a) a duly executed and acknowledged special warranty deed to the Property subject
only to the Permitted Exceptions;
(b) a bill of sale respecting any personal property to be conveyed;
(c) copies of the most recent tax or assessment bills or other items on which pro -
rations are based,
(d) the Title Policy;
. (e) evidence of authorization of Seller as to the execution of this Agreement and the
sale of the Property to Purchaser and the performance of other acts required hereunder;
(f) an affidavit to the effect that Seller is not a foreign person under Section 1445(b)
of the United States Internal Revenue Code (FRPTA);
(g) An assignment of the City's rights under the lease of the Property presently used
by the auto dealership, or if such lease has terminated, the City will provide documentation is
evidencing such termination.
(h) evidence of payment and a lien waiver from any broker whose commission is to
be paid by Seller under Section 10.2 below;
(i) all other documents (if any) required, pursuant to other provisions of this
Agreement or to the Escrow Agreement, to be executed and delivered by Seller; and
0) such other instruments and documents as may be reasonably required in order to
carry out the purposes of this Agreement.
8.5 Documents To Be Delivered By Purchaser At Closing. At the Closing
Purchaser shall deliver or cause to be delivered to Seller directly, or if any party elects through
the Escrow, the following with respect to each Property, each of which shall be in form
reasonably satisfactory to Seller and (if applicable) the Title Insurer:
(a) The Purchase Price, plus or minus adjustments, credits and pro -rations provided
for herein;
(b) Evidence of authorization of Purchaser as to the execution of this Agreement and
the purchase of the Property from Seller and the performance of the other acts required
hereunder; is
12
• (c) Evidence of payment and a lien waiver from any broker whose commission is to
be paid by Purchaser under Section 10.2 below.
(d) all other documents required pursuant to other provisions of this Agreement or the
Escrow Agreement to be executed and delivered by Purchaser; and
(e) such other instruments and documents as may be reasonably required in order,to
carry out the purpose of this Agreement.
8.6 Documents to be Jointiv Delivered by Seller and Purchaser at Closing. At the
Closing Seller and Purchaser shall each execute and deliver, directly, or if any party elects,
through the Escrow, the following with respect to each Property, each of which shall be in form
reasonably satisfactory to the parties and (if applicable) the Title Insurer:
(a) Applicable transfer tax declarations for the State, the County and any necessary
municipal transfer declarations all indicating that this transaction is "exempt" from transfer
taxes;
(b) A Closing Statement (in triplicate); and
(c) ALTA Statements as required by the Title Insurer.
(d) such other instruments and documents as may be reasonably required in order to
carry out the purpose of this Agreement.
ARTICLE 9
DEFAULTS; REMEDIES
9.1 Purchaser's Default. If the transaction contemplated hereby does not close by
reason of a default by Purchaser in any of the terms hereof (as opposed to by reason of failure of
any contingency to Purchaser's obligations hereunder), and such default is not cured within five
(5) Business Days after written notice of such default is given by Seller to Purchaser, then Seller
may, at its sole option and in lieu of any and all other legal and equitable remedies which Seller
may have, receive all Earnest Money deposited to the .date of such default as liquidated damages,
allocable to Seller as set forth in Section 2.3 and Section 3.2 above. Seller and Purchaser
acknowledge that actual damages in the event of a default by Purchaser will be difficult to
ascertain, and that Seller's receipt of the Earnest Money as liquidated damages represents the
parties' best estimate of such damages.
9.2 Seller's Default. If the transaction contemplated hereby does not close by reason
of a default by Seller in any of the terms hereof, and such default is not cured within five (5)
Business Days after written notice of said default is given by Purchaser to Seller, then Purchaser
may: (a) rescind this Agreement and receive all of the Earnest Money and all other sums held_on
account of the Purchase Price; or (b) pursue against Seller an action for specific performance or
other similar relief to enforce this Agreement; or (c) if such default was as a result of Seller's
• willful or deliberate act, pursue against Seller any other rights or remedies available at law or in
equity, including, without limitation, an action for Purchaser's actual costs and damages, all in
such order or concurrently as Purchaser may elect.
13
ARTICLE 10 •
MISCELLANEOUS
10.1 Uniform Risk Act. The Uniform Vendor and Purchaser Risk Act as enacted in
the State in which the Property is located shall apply to this transaction.
10.2 Pavment of Real Estate Brokers and Consultants. Each party represents to the
other that no other real estate broker has been used in connection with this transaction.
Purchaser agrees to indemnify, defend and hold Seller harmless from and against any claim for a
real estate broker's commission or fee by any other party claiming through Purchaser. Seller
agrees to indemnify, defend and hold Purchaser harmless from and against any claim for a real
estate broker's commission or fee by any other party claiming through Seller.
10.3 Notices. All notices and other communications which are required to be, or
which may be given under this Agreement shall be in writing, and shall be delivered at the
addresses set out hereinbelow. Notice may be given by personal delivery, facsimile, recognized
overnight courier, or by United States mail in the manner set forth below. Notice shall be
deemed to have been duly given (a) if by personal delivery, on the first to occur of the date of
actual receipt or refusal of delivery by any person at the intended address, (b) if by facsimile,
upon confirmed transmission, (c) if by overnight courier, on the first (1st) Business Day after
being delivered to a recognized overnight courier, or (d) if by mail, on the third (3rd) Business
Day after being deposited in the United States mail, certified or registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Seller: •
Seller: The City of Evanston
2100 Ridge Avenue
Evanston, IL 60201-2796
Attn: City Manager
Phone: 847/866-2936
Fax: 847/448-8083
With a Copy to:
And to:
The City of Evanston
2100 Ridge Avenue
Evanston, IL 60201-2796
Attn: Law Department
Phone: 847/866-2937
Fax: 847/448-8093
The City of Evanston•
2100 Ridge Avenue
Evanston, IL 60201-2796 •
Attn: Director of Community Development
14
. Phone: 847/866-2929
Fax: 847/448-8120
If to Purchaser: Evanston Devco, LLC
200 West Monroe Street
Suite 2200
Chicago, Illinois 60606
Attn: President and Legal Department
Phone: 312/283-4700
Fax: 312/283-4723
With a Copy to: Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
-Attn: Ivan P. Kane
Phone: 312/701-7167
Fax: 312/701-7711
or to such other address as either party may from time to time specify as its address for the
receipt of notices hereunder, in a notice to the other party..
10.4 Assignment. Purchaser may designate a nominee as the party which will acquire
the Property. In such event all instruments, documents and agreements required to be delivered
to Purchaser under this Agreement shall be delivered to, and run for the benefit of such nominee.
No such designation shall relieve Purchaser of its obligations hereunder. Prior to Closing,
Purchaser may not assign or pledge any of its rights under this Agreement without the prior
written consent of Seller, except Seller's consent shall not be necessary for an assignment to an
entity in which Purchaser or an affiliate has an ownership interest where Purchaser remains liable
for all of its obligations under this Agreement. Subject to the foregoing, this Agreement shall be
binding upon the undersigned and each of their successors and assigns.
10.5 Intentionally Omitted.
10.6 Entire Agreement: Amendments. This Agreement embodies the entire
understanding of the parties and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter hereof except as may
be set forth in writing executed by both parties contemporaneously with or subsequent to this
Agreement. The provisions of this Agreement may not be amended, changed or modified orally,
but only by an agreement in writing signed by the party against whom any amendment, change
or modification is sought.
10.7 Severabilitv. If any term or provision of this Agreement or any application
thereof shall be invalid or unenforceable, the remainder of this -Agreement and other applications
thereof shall not be affected thereby.
• 10.8 Captions: Number. The captions contained in this Agreement are for the
convenience of reference only, and shall not affect the meaning, interpretation or construction of
15
this Agreement. As used in this Agreement, the singular form shall include the plural and the •
plural shall include the singular, to the extent that the context renders it appropriate.
10.9 Counternarts. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original and all of which together shall be deemed to be one and the
same instrument.
10.10 Governing Law. This Agreement and all rights, obligations and liabilities
hereunder shall be governed by, and construed in accordance with, the laws of the State of
Illinois.
10.11 Time of the Essence. Time is of the essence of this Agreement.
10.12 Survival. All of the respective representations and warranties of Seller and
Purchaser hereunder, and all of their respective rights and remedies with respect to the
incorrectness or breach thereof, shall survive the Closing Date for a period of one (1) year from
the date of Closing.
10.13 Recording. Purchaser at Purchaser's option may record this Agreement or the
Memorandum of Real Estate Sale Contract (the "Memorandum") attached hereto as Exhibit F
with the Recorder of Deeds at any time after the Land Due Diligence Review Period. Seller shall
deliver an executed, acknowledged copy of the Memorandum to Purchaser at the same time as
Seller delivers an accepted copy of this Agreement to Purchaser. Purchaser agrees to deliver a
recordable release of such Memorandum at any time this Agreement is terminated for any reason •
other than a Seller's default.
10.14 Waiver. Except as otherwise expressly provided in this Agreement, no waiver by
a party of any breach of this Agreement or of any warranty or representation hereunder by the
other party shall be deemed to be a waiver of any other breach by such other party (whether
preceding or succeeding and whether or not of the same or similar nature) and no acceptance of
payment or performance by a party after any breack by the other party shall be deemed to be a
waiver of any breach of this Agreement or of any representation or warranty hereunder by such
other party whether or not the first party knows such breach at the time it accepts such payment
or performance. Except as otherwise expressly provided in this Agreement, no failure or delay
by a party to exercise any right it may have by reason of the default of the other party shall
operate as a waiver of default or modification of this Agreement or shall prevent the exercise of
any right by the first party while the other party continues to be so in default.
10.15 Business Days. If any date specified in this Agreement for the Closing Date or
for commencement or expiration of time periods for termination or approvals or for notice occurs
on a day other than a Business Day, then any such date shall be postponed to the following
Business Day. As used herein, "Business Day" shall mean any day other than a Saturday,
Sunday or a holiday observed by national banks or the Title Insurer.
10.16 Limitation of Purchaser's Liabilitv. Any obligation or liability whatsoever of
Purchaser which may arise at any time under this Agreement or any document delivered pursuant •
to this Agreement shall be satisfied, if at all, out of Purchaser's assets only. No such obligation
or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had
16
• to, the property of any of its members, or the partners, members, shareholders, trustees, officers,
employees or agents of such members on any constituent level, regardless of whether. such
obligation or liability is in the nature of contract, tort or otherwise. The negative capital account
of any interest holder in Purchaser or the obligation of any interest holder in Purchaser to make a
capital contribution to Purchaser shall not be deemed to be an asset of Purchaser.
•
•
10.17 Intentionally Omitted.
10.18 Effective Date. The "Effective Date" as used in this Agreement shall be the date
on which this Agreement is executed and delivered in final form by both parties. The parties
shall fill in the Effective Date when that is known.
[signature pages follow)
17
Date.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective 0
PURCHASER
EVANSTON DEVCO, LLC,
a Delaware limited liability company
By: PPF AMLI Devco, LLC, a Delaware limited
liability company, its sole member
By: PPF AMLI Development, LLC, a Delaware
limited liability company, its manager
By: AMLI Residential Properties, L.P., a
Delaware limited partnership, its manager
By: AMLI Residential Partners LLC, a
Delaware limited liability company,
its general partner
By:
Name:
Title:
Date:
SELLER
THE CITY OF EVANSTON,
an Illinois municipal corporation
By:
Name:
Title:
Date:
18
•
0
• EXHIBIT A-1
Legal Description of the Property
•
C�
Lots 9 and 10 in Block 2 in Kedzie and Keeney's Addition to Evanston, a subdivision of
part of the South '/2 of the North '/: of the Southwest '/a of Section 19, Township 41, Range 14,
East of the Third Principal Meridian, in Cook County, Illinois.
A-1-1
EXHIBIT A-2 •
Depiction of the Property, the McKone Property and the McKay Property
See attached.
•
•
A-2-1
0
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4 x
•
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EXHIBIT B •
Delivery Items
1. Any title insurance policies or commitments (most recent), soils reports, land surveys,
topographic surveys, environmental reports, engineering plans or reports, traffic reports,
utility studies or other similar physical or development studies of the Property.
2. Any agreements with a governmental authority or an utility provider, including any
annexation agreements, impact fee or donation agreements, PD agreements, TIF
agreements and recapture agreement.
3. Any ordinances, resolutions, licenses, permits, or other similar documents evidencing a
governmental approval or other governmental action specific to the Property, including
any planned development (PD) ordinances; ordinances approving or denying concept,
tentative, preliminary or final plans; ordinances approving or denying a special use or
variance; temporary use permits, or the like.
4. Any agreements with a private party including any leases, service agreements, and
recapture agreements.
5. The latest tax bill, special assessment bill (if applicable), and any notice of reassessment
received since the latest tax bill.
6. Any notices of violation of any law, regulation or private agreement which remain •
uncured.
•
• EXHIBIT C
Permitted Exceptions
1. Acts done or suffered to be done by Purchaser.
U
•
[OTHERS TO BE PROVIDED BY PURCHASER
DURING THE LAND DUE DILIGENCE REVIEW PERIOD]
C-1.
EXHIBIT D
Right of Reverter
The Property is sold to Purchaser with the intent that Purchaser will construct on the
Assembled Property a residential apartment community with retail or business uses
substantially in accordance with the Planned Development approved by the Seller by the
ordinance and any amendments to such Planned Development or to the zoning of the
Property which may be approved by Seller from time to time in its municipal capacity
(the "Approved Development"). Seller wishes to be assured that such construction will
take place in a timely manner so that Seller and the Evanston community realize the
benefits that are expected from such construction. Accordingly, Seller and Purchaser
agree that Seller will convey the Property subject to the right of reverter set forth in this
Exhibit D.
2. Contemporaneously with the execution of the deed from Seller to Purchaser, Purchaser
shall execute a quitclaim deed to Seller, transferring title to the Property from Purchaser
to Seller for the consideration of one dollar ($1.00). Said quitclaim deed to Seller shall
bear the same date (the "Deed Date") as the special warranty deed from Seller to
Purchaser. Seller shall have custody of this quitclaim deed.
3. Purchaser shall substantially commence and diligently pursue construction of the
Approved Development not later than three (3) years after the Deed Date.
•
(a) If Purchaser does not abide by the terms of this paragraph 3 above, Seller may •
exercise its right of reverter by a majority vote of the Aldermen of Seller's City
Council in a meeting held after at least ten (10) days prior notice to Purchaser,
which vote authorizes the Corporation -Counsel to record the quitclaim deed
conveying title from Purchaser to Seller and to pay the amount set forth in
subparagraph 3(b) below.
(b) If Seller records.the quitclaim deed pursuant to paragraph 3(a) of this Exhibit D,
Seller shall pay Purchaser the sum of EIGHT HUNDRED FIFTY THOUSAND
and NO/100 Dollars ($850,000.00) within ten (10) days of such recordation.
Such amount will reimburse the Purchaser for the amount paid to Seller to
purchase the Property, minus an amount equal to the Earnest Money (i.e.:
$50,000), which Seller shall retain.
(c) If Seller does not exercise this right of reverter by recording said deed by the four
(4) year anniversary of--the-Deed Date, then-all-o€ Seller's-rights-under--t-h-is-Exhibit-----------
D shall expire. In addition, if Purchaser satisfies the conditions of the first
sentence of paragraph 3, then on request Seller will execute and deliver to Seller a
recordable release of Seller's rights under this Exhibit D in form reasonably
satisfactory to Purchaser within ten (10) days of such request. If this right of
reverter ceases by expiration or by release, Seller will return the quitclaim deed to
Purchaser. •
4. All conditions set forth in this Exhibit D shall survive the closing.
D-1
• 5. The terms and conditions in this. Exhibit D shall run with the land and be binding on heirs
and successors in interest. Notwithstanding the following, Seller's rights under this
Exhibit D shall be subordinate to the rights of any institutional mortgage lender who
provides construction financing for the Approved Development, and Seller will execute
any instrument reasonably requested by such lender to confirm such subordination.
•
E
D-2
EXHIBIT E •
Environmental Reports
[IF ANY, TO BE PROVIDED BY SELLER
D URING THE LAND DUE DILIGENCE REVIEW PERIOD]
•
E-1
4
• EXHIBIT F
Memorandum of Real Estate Sale Agreement
The undersigned, as Seller, and EVANSTON DEVCO, LLC, a Delaware limited liability
company, as Purchaser, herein give notice of the existence of a certain Real Estate Sale
Agreement dated _, 2008 wherein Seller has agreed to convey to Purchaser, or to
Purchaser's nominee, title to the real estate described on Rider A attached hereto.
This Memorandum of Real Estate Sale Agreement is dated this day of
.2008.
PURCHASER
EVANSTON DEVCO, LLC, a Delaware limited
liability company,
By:
PPF AMLI Devco, LLC, a Delaware limited
liability company, its sole member
By:
PPF AMLI Development, LLC, a Delaware
limited liability company, its manager
By:
AMLI Residential Properties, L.P., a
•
Delaware limited partnership, its manager
By:
AMLI Residential Partners LLC, a
Delaware limited liability company, its
general partner
By:
SUBSCRIBED AND SWORN to before me
Name:
this day of .2008.
Title:
Notary
Date:
SELLER
SUBSCRIBED AND SWORN to before me THE CITY OF EVANSTON, an Illinois municipal
this day of .2008. corporation
is Notary
By:
Name:
Date:
F-1
96-0-08 '
EXHIBIT C 0
Publication Notice
1 - Pubk Notices
NOTICE OF INTENT TO
SELLCERIAIN
C IT'S" -AWN E D
READ. ESTATE INTEREST
Public Notice is hereby giv-
en, that on Auoust 11. 2W&. at
8:30 P.M., in the city Council
Chambers at 2100 Fridge Ave-
nue, The Evanston Civic Cen-
ter, the Evanston City Coun-
cil will, consider the sale of
the City's interest in certain
aounas:
The property is bounded on
the north by as auto dealer.
ship, on . the west by Chicago
Avenues on. the South by a
0". Th& Property Identifica- •
tion Number (PIN) for the
property is : 11-19407.027.
The Isroperty .iS located on the
700 Block of C'hicaeo Avenue.
Then legal description of the
Droporty is as folimm.
Lots 9' and 10 in block 2 in
Kedzie and Keeney's Addi-
ilm to Evanston, a subdivi-
Mon of part of.the South La
ot.the North % of the South-
west sir. of Section 19, Town-
ship 41, itttnge14, fast Of
the Third Prin deal Merldi- .
an, in Cook County, illtnais. '
Said property is presently
vacard and will be used for
purpows as set forth in the
underlying roof .estate sales
contract,. as allowed by the
City Zcmins Ordinance, but
said property shall not be de-
clared tax elcempt.
Published in Pioneer Press
7/2448 (16I17202) N
•
-7-