HomeMy WebLinkAboutORDINANCES-1992-063-O-92•
b3-0-92
AN ORDINANCE
Approving the Tams and Authorizing
The City Manager to Execute
a Redevelopment Agreement for the Redevelopment
of the Main Street Commons Shopping Center
WHEREAS, the City of Evanston has undertaken a program for the redevelopment of
certain property within the City, pursuant to Illinois Revised Statutes, Chapter 24, Section
11-74.4-1 et seq., known as the "Tax Increment Allocation Redevelopment Act,"
(hereinafter referred to as the "Act"), and
WHEREAS, pursuant to the provisions of the Act, the City has enacted a series of
ordinances adopting a Tax Increment Redevelopment Area Redevelopment Plan and Project
and designating a Redevelopment Project Area containing approximately twelve (12) acres
0, of land (said entire twelve (12) acres is hereinafter referred to as the "Redevelopmenr
Project Area"); and
WHEREAS, Joseph J. Freed and Associates, ("Freed"), LaSalle National Trust, N.A., as
successor trustee to LaSalle National Bank, not personally but solely as trustee under -Trust
No. 107664 dated February 20, 1984 ("Trustee") (Freed and Trustee are collectively
referred to herein as the "Developer") is the developer of Main Street Commons Shopping
Center ("Center") located on the south side of Main street just east of McCormick
Boulevard, in Evanston, Illinois; and
WHEREAS, the Developer has proposed a plan to redevelop land which falls within the
Redevelopment Project Area, and. the City has determined that said proposed plan is
consistent with and complies with the City's Redevelopment Plan and Redevelopment Project
for the Southwest Industrial Corridor; and
39446.01.03
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WHEREAS, the proposed redevelopment of the Center is in the vital and best interest
of the City and the general health, safety and welfare of its citizens and in accordance with
publics purposes and the provisions of all applicable taws, and will increase retail sales
generated by the Center and create new vitality for the entire southwest area of Evanston;
and
WHEREAS, the Corporate Authorities of the City have reviewed the provisions of a
redevelopment agreement with the Developer to accomplish the proposed redevelopment and
have deemed that it is in the best interests of the City to enter into such redevelopment
agreement; and
WHEREAS, implementation of the redevelopment plan for the Center is in the best
interests of the City; and
WHEREAS, performance by the City of its obligations under the proposed
redevelopment agreement will require expenditures
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of funds of the City to •
pay certain redevelopment eligible project costs (Eligible Project Costs) as enumerated in the proposed
?developrent agreement; there are some available funds of the City on hand and lawfully available for the
purpose; and there may be need after utilizing the funds on hand to temporarily advance
funds in not to exceed the amount of $400,000 from other City sources to completely
perform the obligations of the City and to pay all redevelopment project costs; and
WHEREAS, the City reasonably expectstoreimburse itself for that portion of the
Expenditures so advanced by incurring debts
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL. OF THE CITY OF
EVANSTON, COOK COUNTY, IL.LINO1S:
Section 1: That the City Manager be and is hereby authorized and directed to
execute a redevelopment agreement governing the redevelopment of the Main Street
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Commons Shopping Center which is in substantial conformity with the redevelopment
agreement marked as Exhibit A, attached hereto and incorporated herein by reference. That
the City Manager is authorized to execute said redevelopment agreement only after its
execution by each of the other parties to the agreement and upon receipt of an executed copy
of the real estate contract between Joseph Freed and Associates and Walmart Inc. pertaining
to Walmart's purchase of property in an expanded Main Street Commons Shopping Center.
Section 2: That the Finance Director be and is hereby authorized to disburse funds
in accordance with the provisions of the redevelopment agreement, subject to City Council
bills list approval, from the existing bond proceeds account designated for use in the
Redevelopment Project Area. That the Finance Director is hereby authorized in the event
that existing bond proceeds which have been designated for this project are insufficient to
• cover Eligible project costs to include in the next tax-exempt bond issue of the City, an amount
sufficient to cover the additional Eligible Project Costs projected to be necessary for the purpose in
accordance with the redevelopment agreement. That the City reasonably expects to
reimburse a portion of the Eligible Project Costs with bond proceeds; that the maximum amount of
such bonds to be issued for reimbursement is expected to be 5400,000; and that this
ordinance is a declaration of official intent under Treas. Reg, Section 1.103-18. That the
City will comply with applicable Illinois law governing public availability of this Ordinance.
Section 3: All ordinances or parts of ordinances in conflict herewith are hereby
repealed.
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Section 4: That is ordinance shall be in full force and effect from and after its
passage, approval and publication in the manner provided by law.
Introduced:
Adopted:
ATTEST:
City Clerk
A p i ved as to faun:
I\ Corpora on Counsel
, 1992
, 1992.
Approved: , 1992
Mayor
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ORDINANCE 63-0-92
EXHIBIT A
Redevelopment Agreement for the Redevelopment
of the Main Street Commons Shopping Center
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REDEVELOPMENT AGREEMENT
MAIN STREET COMMONS SHOPPING CENTER
CONTENTS
PAGE
Preamble...............................................
1
Paragraph
1
- Preambles ................................
4
Paragraph
2
- Developer's Responsibilities .............
4
Paragraph
3
- Wal-Mart Responsibilities ................
6
Paragraph
4
- City's Responsibilities ..................
7
Paragraph
5
- Use of Bond Proceeds; Acquisition of
Project Area Real Estate; Construction of
PublicImprovements ......................
9
Paragraph
6 -
Sales Tax and Property Tax Increment.....
17
Paragraph
7 -
Additional Agreements and Covenants
ofDeveloper
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.............................
21
Paragraph
8 -
Additional Agreements and Obligations
ofWal-Mart ..............................
22
Paragraph
9 -
Agreement Contingent Upon Completion
ofBond Sale ......:......................
25
Paragraph
10
- Anti -Discrimination, Minority
Business Enterprises, Etc ...............
26
Paragraph
11
- Default, Remedies .......................
28
Paragraph
12
- Entire Agreement ........................
30
Paragraph
13
- Survival of Terms, Binding upon
Successors..............................
30
Paragraph 14 - Term of Agreement and
RedevelopmentPlan ...................... 30
Paragraph 15 - Governing Law ........................... 31
Paragraph 16 - Supplemental Agreements ................. 31
Paragraph17 - Force Majeure ........................... 31
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Paragraph
18
- Notices .................................
31
Paragraph
19
- Severability ............................
32
Paragraph
20
- City Approval ...........................
32
Paragraph
21
- Amendments; Recordation .................
33
Paragraph
22
- Miscellaneous ...........................
33
Paragraph
23
- Execution of this Agreement .............
33
Paragraph
24
- Trustee's Exculpation ...................
33
List of Exhibits
Exhibit A
Ordinances
Exhibit B
Redevelopment Site Plan
Exhibit C
Environmental Indemnity Agreement
Exhibit D
Center Improvement Site Plan
Exhibit E
Off -site Improvement Schedule
Exhibit F
Schedule of Eligible Project Costs
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REDEVELOPMENT AGREEMENT
MAIN STREET COMMONS SHOPPING CENTER
This Redevelopment Agreement ("Agreement") is made this
day of July, 1992, by and among the City of Evanston, Illinois, a
municipal corporation (tht! "City") , Joseph J. Freed and Associates!
Inc., an Illinois corporation. ("Freed"), LaSalle National Trust,
N.A., as successor trustee to LaSalle National Bank, not personally
but solely as trustee under Trust No. 107664 dated February 20,
1984 ("Trustee") (Freed and Trustee are sometimes collectively
referred to herein as the "Developer") and Wal-Mart Stores, Inc.,
a Delaware corporation ("Wal-Mart").
WHEREAS, the City has undertaken a program for the redevelop-
ment of certain property within the City, pursuant to Illinois is
Revised Statutes, Chapter 24, Section 11-74.4-1 et sec., known as
the "Tax Increment Allocation Redevelopment Act," (hereinafter
referred to as the "Act"); and
WHEREAS, pursuant to the provisions of the Act, the City has
enacted a series of ordinances (a schedule of which is attached
hereto as Exhibit A and made a part hereof) adopting a Tax Incre-
ment Redevelopment Area Redevelopment Plan and Project and desig-
nating a Redevelopment Project Area containing approximately twelve
(12) acres of land (said entire twelve (12) acres is hereinafter
referred to as the "Redevelopment Project Area"); and
WHEREAS, Developer is the developer of Main Street Commons
Shopping Center ("Center") located on the south side of Main Street
just east of McCormick Boulevard, in Evanston, Illinois, which
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currently consists of the following parcels: (a) a parcel on which
there exists a Builder's Square building consisting of
approximately 96,850 square feet and a parking area, located at the
northerly end of the Center ("Builder's Square Parcel"); (b) a
parcel on which there exists a Highland Store building consisting
of approximately 25,687 square feet and a parking area, located at
the southerly end of the Center ("Highland Parcel"); and (c) the
balance of the Center, including a building consisting of
approximately 87,039 square feet and a parking area ("Developer
Parcel"). The Builder's Square Parcel, the Highland Parcel and the
Developer Parcel are each identified on the site plan attached
hereto as Exhibit B and hereby made a part hereof ("Redevelopment
Site Plan"). Developer is the owner of the Developer Parcel and
• has no current direct or indirect ownership interest in the
Builder's Square Parcel or the Highland Parcel; and
WHEREAS, the Developer has proposed a plan to redevelop the
Developer Parcel and a portion of the Highland Parcel and certain
other adjacent land hereinafter described (which land falls within
the Redevelopment Project Area), and the City has determined that
said proposed plan is consistent with and complies with the City's
Redevelopment Plan and Redevelopment Project for the Southwest
Industrial Corridor, pursuant to which plan Developer shall cause,
among other things: (i) the acquisition of adjacent land from both
the City and private property owners to permit the expansion of
the Center and accommodate the sale of approximately 13.5 acres of
land to Wal-Mart for the development, construction and opening for
business of a Sam's Club retail facility (the property to be sold •
to Wal-Mart is identified on the Redevelopment Site Plan and
hereinafter referred to as the "Wal-Mart Parcel") (the portion of
the Developer Parcel that is not sold to Wal-Mart is referred to
herein as the "Remainder Developer Parcel"); (ii) the demolition of.
certain improvements on the Wal-Mart Parcel and the Remainder
Developer Parcel; (iii) the renovation of a portion of the existing
improvements on the Remainder Developer Parcel; and (iv) the
relocation of certain tenants of the Remainder Developer Parcel.
WHEREAS, Wal-Mart has entered into a Real Estate Purchase
Agreement dated as of July 14, 1992 ("Wal-Mart Contract") with the
Trust to acquire the Wal-Mart Parcel and construct thereon a Sam's
Club retail facility consisting of approximately 134,000 square
feet ("Wal-Mart Improvements"), all upon the terms and conditioner •
contained therein, and pursuant to the Wal-Mart Contract, Wal-Mart
desires to enter into this Agreement; and
WHEREAS, the proposed redevelopment of the Center is in the
vital and best interest of the City and the general health, safety
and welfare of its citizens and in accordance with public purposes
and the provisions of all applicable laws, and will increase
retail .sales generated by the Center and create new vitality for
the entire southwest area of Evanston;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, and for other good and valuable con-
siderations, the receipt and sufficiency of which are. hereby
mutually acknowledged, the parties agree as follows:
• 1. Preambles. The preambles and premises set forth above
are an integral part of this Agreement and are hereby' incorporated
into and made a part of this Agreement.
2. Developer's Responsibilities.
A. Developer shall do or shall cause to be done on or
before thirty (30) days after City has executed this Agreement (or
such other date specifically hereinafter set forth) , the following°
(i) enter into a contract to acquire certain land
from MAP Investments Inc., an Illinois corporation,
Philip V. Zera and Alexander A. Zera, Jr. (collectively,
"Zera"), which land is identified on the Redevelopment
Site Plan and hereinafter referred to as the "Zera Land";
(ii) enter into a contract to acquire certain land,
• adjacent to the Zera Land, from the City, which land is
identified on the Redevelopment Site Plan and hereinafter
referred to as the "City Land";
(iii) enter into a contract to acquire a portion of
the Highland Parcel from the owner thereof, which
portion is identified on the Redevelopment Site Plan and
sometimes hereinafter referred to as the "Acquired
Highland Land;
(iv) to the extent reasonably feasible, apply for a
demolition permit and upon issuance of such permit
commence the demolition of certain improvements on the
Remainder Developer Parcel and the Wal-Mart Parcel and
the renovation of certain of the remaining improved
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portions of the Remainder Developer Parcel, which
demolition and renovation will be completed no later than
June 30, 1993, and upon completion of the same, relocate
certain of the tenants to the renovated or existing
improved portions of the Remainder Developer Parcel;
(v) within forty-five (45) days after receipt of an
environmental audit report for certain land (identified
on the Redevelopment Site Plan and hereinafter referrea
to the "Scrap Yard Parcel" and the "Scrap Yard Annex"),
Developer shall notify the City of its decision to
proceed with the acquisition of the Scrap Yard Parcel and
the Scrap Yard Annex, subject to and pursuant to the
provisions of the Wal-Mart Contract, by giving written
notice thereof to the City ("Closing Notice"); the
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receipt of such environmental audit report being
contingent upon the satisfaction of certain obligations
of the City described in Paragraph 4 hereof; and
(vi) within sixty (60) days after delivery of the
Closing Notice and subject to the terms and provisions
hereof, Developer shall (a) sell to Wal-Mart the Zera
Land, the City Land, the Acquired Highland Land and the
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Developer Parcel (other than the Remainder Developer
Parcel) and (b) assign to Wal-Mart Developer's rights to
acquire the Scrap Yard Parcel and the Scrap Yard Annex;
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(vii) satisfy or cause the satisfaction of all of
its obligations under that certain Indemnification
Agreement ("Indemnification Agreement"), a copy of which
is attached hereto as Exhibit C and hereby made a part
hereof, on the dates and the manner set forth in said
Indemnification Agreement.
Notwithstanding anything in this Agreement to the contrary,
Developer's obligations under this Agreement are contingent upon
the performance by the City, Zera, the owner of the Highland Parcel
and Wal-Mart under their respective contracts with Developer and
this Agreement (to the extent applicable), as well as the
Developer's and Wal-Mart's receipt of all consents, permits and
other approvals necessary to effect the proposed redevelopment of
the Center.
B. Developer hereby agrees that the development of
the Remainder Developer Parcel will be substantially in accordance
with the site plan set forth on Exhibit D attached hereto and made
a part hereof ("Center Improvements Site Plan") and in compliance
with all City codes and ordinances.
3. Wal-Mart Responsibilities. Wal-Mart hereby agrees that
upon acquisition of the Wal-Mart Parcel, it will develop the
Wal-Mart Parcel and construct and open for business a Sam's Club
retail facility occupying at least 134,000 square feet. The
development of the Wal-Mart Parcel will be substantially in
accordance with the Center Improvements Site Plan and in compliance
with all City codes and ordinances. Wal-Mart further agrees to
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install and construct at its cost, the off -site improvements
described on Exhibit E attached hereto and hereby made a part
hereof ("Off -site Improvement Schedule"). Wal-Mart covenants and
agrees that: (i) the construction of the Wal-Mart Improvements and
the off -site improvements will commence no later than sixty (60)
days after the Real Estate Closing (as hereinafter defined in
Paragraph 5 hereof) and (ii) the Sam's Club retail facility on the
Wal-Mart Parcel will open for business no later than one (1) year
after the Real Estate Closing.
4. City Responsibilities. The City shall do or cause to
be done the following:
A. Provide $2,000,000 for the payment of Eligible
Project Costs (as defined in Paragraph 5 hereof) in accordance with
the provisions of Paragraph 5 hereof;
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B. Pay to Developer, in consideration of its
acquisition of the Scrap Yard Parcel and the Scrap Yard Annex, up
to $75,000 per year (not to exceed $750,000 in the aggregate) in
accordance with the provisions of Paragraph 6 hereof;
C. On or before the date hereof, diligently commence
and prosecute the acquisition of the Scrap Yard Parcel and the
Scrap Yard Annex (if not then the subject of an acquisition
contract acceptable to Developer) through the exercise of its
eminent domain powers if private negotiation is unsuccessful
(including but not limited to obtaining a court order granting
access to the Scrap Yard Parcel and the Scrap Yard Annex (if
necessary) to conduct an environmental audit of the properties).
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In connection therewith, Developer and the City have executed, and
Wal-Mart has jointly and severally guaranteed the Developer's
performance under the Indemnification Agreement. Pursuant to said
Agreement, Developer and the City have agreed, among other things
and subject to the provisions thereof, that Developer will
indemnify the City (i) for the cost of pursuing the eminent domain
proceedings, (ii) for the awards which may be due to the owners of
the Scrap Yard Parcel and the Scrap Yard Annex (if necessary) in
connection with the eminent domain proceedings, and (iii) for
certain environmental liability that may arise in connection with
the City's exercise of its eminent domain powers to acquire the
Scrap Yard Parcel and the Scrap Yard Annex (if necessary).
D. Upon receipt of the Closing Notice, diligently (i)
• proceed to sell the Bonds (as defined in Paragraph 5A hereof), if
necessary, and satisfy any conditions precedent to the use of any
other funds received or which are now held by the City and intended
to be used by the City to satisfy its obligations under this
Agreement, (ii) take all actions necessary to effect the conveyance
of the City Land at the time of the Real Estate Closing (as
hereinafter defined in Paragraph 5 hereof) and (iii) take all steps
necessary for the vacation of the west half of Pitner Avenue lying
adjacent to and east of the Zera Land and the City Land, which
vacation shall become effective immediately following the Real
Estate Closing.
E. Upon acquisition of the Scrap Yard Parcel and the
Scrap Yard Annex, take all steps necessary for the vacation of the
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west 10.45 ft. of Pitner Avenue lying adjacent to and east of the •
said two parcels.
5. Use of Bond Proceeds; Accruisition of Protect Area Real
Estate; Construction of Public Improvements.
A. Issuance of Bonds. If deemed necessary by the
City, the City will enact on or about the date of the Closing
Notice an ordinance to provide for the issuance of certain General
Obligation Tax Exempt Bonds , _: of the City of Evanston,
Cook County, Illinois (the "Bond Ordinance") pursuant to which the
City will, if such ordinance is enacted, issue its general
obligation tax exempt bonds ("Bonds") secured, in part, by its
"Special Tax Allocation Fund," pursuant to Division 11-74.4-7 of
the Act. Proceeds from the sale of the Bonds, if necessary, and
such other funds received or which are now held by the City and •
which are permitted to be used by the City for such purposes, the
total of which will be sufficient for the City to satisfy its
obligations under this Agreement, will be used to pay or reimburse the City or
Developer or their designee for property assembly and other eligible
Project Costs (as defined in the Act) incurred in connection with
that portion of the Redevelopment Project Area that falls within
the Wal=Mart Parcel ("Project Area") (all such eligible Project
Costs are hereinafter referred to as the "Eligible Project Costs") .
The Eligible Project Costs shall include, but shall not be limited
to, the acquisition costs of the Zera Land, the City Land, the
Scrap Yard Parcel and the Scrap Yard Annex: tfle costs incurred by V• e City
which shall include but not be limited to capitalized interest and issuance costs; a general
itemization
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of which costs is set forth on Exhibit F attached hereto and made
a part hereof.
B. Acquisition of Project Area Real Estate. The
parties hereto acknowledge and agree that the acquisition by or for
the benefit of Developer of the City Land and the Zera Land shall
occur simultaneously, and immediately upon said acquisition, said
properties, along with the rights to acquire the Scrap Yard Parcel
and the Scrap Yard Annex, shall be conveyed to Wal-Mart in a
simultaneous transaction (collectively, the "Real Estate Closing").
Developer's acquisition of the Zera Land and the City Land is
contingent upon the City's payment of the Eligible Project Costs
pertaining to said acquisitions. Prior to and as a condition
precedent to the City's payment of any Eligible Project Costs at
• the Real Estate Closing incurred as of such date, Developer shall
furnish or cause to be furnished to the City Manager, with a copy
to the City's Corporation Counsel, a written request therefor
setting forth the specific Eligible Project Costs for which payment
or reimbursement is sought. This request for payment or
reimbursement shall be accompanied by such contracts, closing
statements or other such evidence as the City shall reasonably
require to evidence Developer's right to such payment or repayment.
To facilitate the Real Estate Closing, the City Council of the
City, through the adoption of the ordinance authorizing the
execution of this Agreement, hereby authorizes and directs the City
Manager and the City Clerk to execute and attest respectively any
and all documents necessary to effectuate Developer's acquisition
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and conveyance of the Zera Land, the City Land and the other •
properties hereinabove described.
C. Additional TIF-Eligible Project Costs. The
remaining balance of the Bond proceeds and other funds to be used
by the City to satisfy its obligations under this Agreement, if
any, after pa�.nent of the foregoing acquisition and other Eligible
Project Costs at the Real Estate Closing, shall be utilized to pay
Developer or its designee for other Eligible Project Costs actually
incurred and expended relating to the development of the Project
Area.
D. Manner of Funding Remaining Eligible Project
Costs. To facilitate the City's payment of Eligible Project Costs
following the Real Estate Closing, the parties shall implement the
following procedure with respect to any such request for payment: •
(i) At such time as Developer or its designee
desires periodic payment or reimbursement for Eligible
Project Costs, there shall be submitted to the City
Manager, with a copy to the City's Corporation
Counsel, a written request therefor setting forth the
specific Eligible Project Costs for which payment or
reimbursement is sought. This request for payment or
reimbursement shall be accompanied by such contracts,
invoices, engineering or architectural estimates,
architects, certifications, contractors, sworn
statements, lien waivers or other such evidence as the
City shall reasonably require to evidence the right to
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payment or reimbursement of Eligible Project Costs
pursuant to this Agreement.
(ii) The City Manager shall recommend approval or
disapproval of such request to the Mayor and City
Council for the Council's action at the first regular
meeting c.f the Council occurring not less than
forty-five (45) calendar days subsequent to the City's
receipt of request for payment. Upon approval by the
City Council, the City shall cause prompt disbursement
thereafter to Developer of the amount requested from
the City.
(iii) In the event the City Manager determines to
recommend disapproval of the request or any portion
• thereof, the City Manager shall promptly communicate
such recommendation to Developer by specifying the
error or disagreement and requesting appropriate
correction or modification. In the event the parties
disagree as to a portion of the request, said
disagreement shall not affect Developer's right to
reimbursement for other Eligible Project Costs
pursuant to this Agreement.
(iv) The City reserves the right to examine
Developer's relevant records at any reasonable time
relating to Developer's costs pertaining to the
Project Area, and to obtain from such consultants or
experts as the City determines to be appropriate,
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other evidence as the City may reasonably require to
evaluate Developer's compliance with the terms of this
Agreement, including a certificate satisfactory to the
City's Engineer and the City's Building and Zoning
Director or such other individual(s) approved by the
City, certifying that the work covered by such request
has been done Properly in accordance with the plans
and specifications approved by the City. The City may
withhold its approval of any request for payment if,
and so long as, the person or entity applying for such
funds is in material default of its obligations under
this Agreement pertaining to the Project Area, if any.
E. Permit Processing. The City shall diligently
process the application(s) by Developer and/or Wal-Mart for all
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approvals, permits and inspections relating to the redevelopment of
the Center in accordance with the provisions of this Agreement,
including, but not limited to, grading permits, building permits,
occupancy permits, site work improvements and all required
engineering plans and specifications. A failure on the part of the
City to grant any required approval or issue any required permit
shall not be deemed a default, or the cause of a default, by the
City under this Agreement, provided the City is acting in
accordance with its ordinances and codes. Notwithstanding the
foregoing, all permits, licenses and approvals for which Wal-Mart
or Developer applies with respect to the Wal-Mart Parcel and the
Remainder Developer Parcel will, at the option of Wal-Mart or
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Developer, as the case may be, be issued by the City in accordance
with, and provided Wal-Mart or Developer, as the case may be, has
complied with, the City's building code, permit and other approval
procedures and fees in effect as of the date of this Agreement,
except to the extent such building code or procedures have been
amended or modified by the City for reasons of health and life
safety issues or as may be mandates' by federal or state law, and
provided further that Wal-Mart or Developer, as the case may be,
applies for all such permits, licenses and approvals (i) within one
year after the Real Estate Closing (other than any applicable to
the Scrap Yard Parcel and the Scrap Yard Annex), and (ii) with
respect to the Scrap Yard Parcel and the Scrap Yard Annex, within
six months after Wal-Mart's acquisition thereof.
• F. The City acknowledges that (i) the Center existing
as of the date hereof and as redeveloped pursuant to the provisions
of this Agreement consists of various parcels of land with separate
ownership, and (ii) pursuant to that certain Deed of Declaration
dated May 25, 1975 and recorded as Document No. 24504249, as
amended or to be amended on or before the Real Estate Closing
(and/or pursuant to the terms and provisions of any new document
prepared for the purpose of supplementing or replacing such
Declaration) ("REA"), all owners of any portion of the Center
existing as of the date hereof or as redeveloped pursuant to the
terms of this Agreement have or will have access to and the use of
all parking spaces located within the Center existing as of the.
date hereof and as redeveloped pursuant to the provisions of this
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Agreement. The City further acknowledges and agrees that the
Center existing as of the date hereof or as redeveloped pursuant to
the terms of this Agreement, and each of the parcels of land having
separate ownership located therein, is legal and in conformity with
the City's applicable zoning ordinances and amendments thereto as.
of the date hereof, including, but not limitad io, (i) the number
and location of the buildings, and the gross floor area of each
such building, now existing or hereinafter demolished, renovated or
constructed pursuant to the provisions of this Agreement, and (ii)
the number of parking spaces now or hereafter existing at the
Center, or within any separately -owned individual parcel located or
to be located therein, pursuant to the terms of this Agreement
(based upon the REA regardless of the actual ownership of said
parking spaces). •
The parties acknowledge that the Center and the Wal-Mart
Parcel are presently zoned for the purposes contemplated under the
Redevelopment Agreement. The parties also understand that there is
presently pending before the City Council of City a proposed
comprehensive amendment to the City's Zoning Ordinance which may or
may not affect the classification of the subject property.° The
parties- recognize, however, that Freed, Trustee and Wal-Mart have -
substantially changed their position in reliance upon the existing
Zoning Ordinance. It is therefore agreed between all of the
parties that, notwithstanding any subsequent reclassification of
the subject property as a result of the comprehensive amendment now
pending before the City Council, the subject property may be
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developed under the terms of the Zoning Ordinance as it exists on
this date, and any restrictive provisions relating to the expansion
or redevelopment of non -conforming uses which may be contained in
such proposed comprehensive amendment will not be applicable to the
subject property. It is the further understanding of all of the
parties that the redevelopment, as contemplated herein, may take
place and be fully completed in accordance with the Zoning
Ordinance of City as it presently exists. Builaing permits
required for the redevelopment will be issued upon proper
application in conformance with the present Zoning Ordinance and in
compliance with all other applicable ordinances.
G. Access to Utilities. The City shall provide
Developer and Wal-Mart, as the case may be, access to water and
• storm sewer facilities to serve the Project Area in accordance with
approved engineering plans and all applicable City ordinances and
requirements.
H. Certificate of Completion. Upon application of
Wal-Mart, the City will make a determination as to Wal-Mart's
satisfaction of its obligations under this Agreement pertaining to
the completion of the Wal-Mart Improvements set forth on the Center
Improvements Site Plan and upon such reasonable determination shall
certify as to such satisfaction. Upon application of Developer,
the City will make a determination as to the Developer's satis-
faction of its obligations under this Agreement pertaining to the
demolition and renovation work on the Remainder Developer Parcel
set forth on the Center Improvements Site Plan, and upon such
reasonable determination shall certify as to such satisfaction. •
The certification by the City shall be conclusive determination of
satisfaction and termination of such obligations of the Developer
or Wal-Mart, as the case may be, under Paragraphs 2, 3, 7, 8A and
8B of this Agreement. The certification shall be in such form as
will enable it to be recorded. Upon written request by thc-
Developer or Wal-Mart for any such certificate of completion, the
City shall within thirty (30) days after receipt of the same
provide the Developer or Wal-Mart, as the case may be, either with
a certificate of completion or a written statement indicating in
adequate detail how the Developer or Wal-Mart, as the case may be,
has failed to satisfy said obligations in accordance with this
Agreement, or is otherwise in default, and what measures or acts
will be necessary, in
the
opinion of the
City, for the Developer or
Wal-Mart, as the case
may
be, to take or
perform in order to obtain
the certification. If the City requires additional measures or
acts of the Developer or Wal-Mart to assure compliance, the
Developer or Wal-Mart, as the case may be, shall resubmit a written
request for a certificate of completion upon compliance with the
City's response, and such certificate shall be issued by the City
in accordance with the provisions hereof. -
6. Sales Tax and Property Tax Increment. All sales tax
and property tax increments generated within the Redevelopment
Project Area and received by the City, shall be utilized by the
City in accordance with the Act and any ordinance authorizing the
issuance of the Bonds. The City shall pay Developer from eligible
-17- 1
0
funds up to $75,000 annually from the City's aggregate collections
for each calendar year in excess of $600,000 (or such larger sum
described hereafter) of (i) its share of sales tax proceeds from
retail sales generated in the Redevelopment Project Area and (ii)
all real estate taxes generated by the Redevelopment Project Area
for such calendar year, in excess of the actual 1991 real estate
taxes (payable in 1992) for the Redevelopment Project Area
(collectively the "City Receipts") as follows:
(a) The City shall pay Developer each calendar year
an amount equal to fifty percent (50%) of all City Receipts
up to a maximum payment of $75,000.00 in any calendar year
under this Paragraph 6(a);
(b) In the event the amount payable to Developer
• under said formula is less than $75,000 in any year, the
amount of such deficiency shall be carried over into the
next year (and subsequent years if necessary) and paid to
Developer in addition to the annual $75,000 payment to the
extent that City Receipts exceed $150,000 for any calendar
year. For example, if under Paragraph 6(a) Developer is
paid $65,000 in 1994, is entitled to $75,000 in 1995, and
the City Receipts for 1995 equal $160,000, fifty percent
(50%) or $5,000 of City Receipts in excess of $150,000
shall be paid to Developer in 1995 in addition to the 1995
annual $75,000 payment. If the City Receipts for 1995 are
less than $150,000 or exceed $150,000.00 by an amount
sufficient to pay only a portion of the difference to
to -18-
Developer in 1995, then the remaining unpaid balance •
thereof shall be paid in the next year or years that City
Receipts exceed $150,000.00 until any cumulative prior
year(s) deficiency has been paid.
(c) All amounts owed to the Developer under this
Paragraph 6 shall be due and payable within 60 days after
the end of each calendar year.
Said annual payments shall continue until the first to occur
of: (i) a total payment to Developer of $750,000 or such lesser
amount equal to the total acquisition and acquisition -related costs
paid in connection with the Scrap Yard Parcel and the Scrap Yard
Annex, which costs shall include, but shall not be limited to, all
amounts paid to the owners of the Scrap Yard Parcel and the Scrap
Yard Annex pursuant to eminent domain proceedings or otherwise, all •
amounts paid in connection with the environmental assessment and
cleanup of the Scrap Yard Parcel and the Scrap Yard Annex and any
other Eligible Project Costs incurred in connection with the
incorporation and use of the Scrap Yard Parcel and the Scrap Yard
Annex as part of the Wal-Mart Parcel; or (ii) the expiration of a
twenty-year period commencing on January 1, 1993 and ending on
December 31, 2012. _
To properly calculate sales tax increment which has been
derived from the Project Area so as to effectuate this and other
provisions of the Agreement, it is necessary that the City be given
access to sales tax data of the Wal-Mart Parcel during the term of
this Agreement. Therefore, Wal-Mart shall provide the City with
•
completed Illinois Department of Revenue RR-1 Forms for the
businesses) operated on the Wal-Mart Parcel during the term of
this Agreement. The City's sales tax increment calculation shall
be based upon sales tax proceeds from the Wal-Mart Parcel that can
be verified by the City. The City agrees to utilize said sales tax
information solely for the purpose of effectuating the provisions
of this Agreement, and to the extent permitted by the Illinois
Freedom of Information Act and other relevant laws, shall endeavor
to keep such information confidential.
In the event the City collects in any calendar year: (1)
sales tax proceeds from retail sales generated in the Redevelopment
Project Area from any source outside the Project Area and/or (2)
real estate taxes generated by the Redevelopment Project Area from
any source outside the Project Area in excess of the actual 1991
real estate taxes (payable in 1992) collected from that same
source, the amount of all of such incremental collections from the
sources outside the Project Area shall be added to the base
($600,000) in determining whether City Receipts have been collected
for such calendar year. By example, if in calendar year 1995,
retail sales tax proceeds from a source within the Redevelopment
Project Area but outside the Project Area equal $5,000 and
incremental real estate taxes collected in that year from a source
in the Redevelopment Project Area but. outside the Project Area
equal $10,000, the City Receipts for 1995 shall be the aggregate
collection of sales tax proceeds from retail sales generated in the
8 -20-
Redevelopment Project Area and incremental real estate taxes for •
the Redevelopment Project Area in excess of $615,000.
To properly calculate the real estate tax increment which
has been derived from the Project Area so as to effectuate this and
other provisions of this Agreement, Wal-Mart agrees that during the.
term of this Agreement it shall maintain separate real estate tax
bill or bills for that portion of the Wal-Mart Parcel falling
within the Project Area and not permit such bill or bills to
include any real estate falling outside of the Project Area.
7.
Additional
Agreements
and Covenants of Developer.
In
accordance
with the
City's
financial commitment to
the
redevelopment of the Project Area, Developer agrees and covenants
with the City as follows:
A. That it will cause the improvements to the
Remainder Developer Parcel shown on the Center Improvements Site
Plan to be the constructed and completed at all times to the best
of its knowledge and ability in a good and workmanlike manner and
in compliance with all applicable Federal, State, County and City
laws, regulations and ordinances covering same. Developer shall be
responsible for securing all required permits and approvals for
such work and paying all applicable fees relating thereto; -
B. That it will cooperate and work with the City to
provide the City with any and. all information pertaining to the
City's obligations in carrying out the terms and provisions of this
Agreement; and
-219
-
• C. That the sums to be paid or reimbursed to
Developer hereunder for the acquisition of the Zera Land and the
City Land and in connection with the Scrap Yard Parcel and the
Scrap Yard Annex represent only a portion of the overall
development costs to Developer.
8. Additional Aareements and Obligations of Wal-Mart. In
accordance with the City's financial commitment to the
redevelopment of the Project Area, Wal-Mart agrees and covenants
with the City as follows:
A. That it will cause the Wal-Mart Improvements at
all times to the best of its knowledge and ability to be
constructed and fully completed in a good and workmanlike manner,
in accordance with the Center Improvements Site Plan and in
compliance with all applicable Federal, State, County and City
• laws, regulations and ordinances covering same. Wal-Mart shall be
responsible for securing all required permits, licenses and
approvals for the said construction and the operation of the Sam's
Club retail store thereon and paying all applicable fees relating
thereto;
B.
That
it will
cooperate and work with the
City to
provide the City
with
any and
all information pertaining
to the -
City's obligations in carrying out the terms and provisions of this
Agreement;
C. That certain assumptions have been made relative
to the future assessed valuation of the Project Area when it is
improved by the Wal-Mart Improvements and that attaining and main-
• -22-
taining said assessed valuation will have a material effect on the
tax increment revenue available to pay the Bonds. Accordingly,
neither Wal-Mart nor its agents, representatives, successors,
assigns or transferees in connection with the Project Area shall
initiate, take or perform any acts attempting to reduce the
assessed valuation of all or any portion of the Project Area below
an amount which will produce incremental real estate taxes
commencina with the first full calendar year after Wal-Mart opens
for business in an amount less than $280,000, but only for so long
as any of the Bonds remain unpaid or the City has not received
reimbursement for interest or principal payments that it has
advanced. Wal-Mart and the City agree that the restriction
contained herein is a covenant running with the land. This
restriction shall be binding upon Wal-Mart, and its agents,
representatives, successors, assigns or transferees from and after
•
the date hereof; provided, however that said covenant shall be null
and void if and when the Bonds have been fully redeemed or paid and
the City has been reimbursed for all interest or principal payments
that it has advanced, whereupon the City will issue a release from
said covenant at such time, which release shall be in recordable
form and recorded. Wal-Mart agrees that any sale, conveyance or
"
transfer of title to all or any portion of the Project Area from
and after the date hereof shall be made subject to such covenant
and restriction.
D. In the event that Sam's Club retail facility on
the Wal-Mart Parcel is not open for business on or before the date
-23-
•
• which is two years after the date set forth in Paragraph 3(ii), then Wal-Mart shall
immediately pay to the City an amount equal to the then outstanding amount of the Bonds
and any unreimbursed interest or principal payments the City has advanced provided.
however, that the City shall not enforce the provisions of this paragraph unless it shall
have received the opinion of Chapman and Cutler, Attorneys, Chicago, Illinois, and Bond
Counsel to the City, that the enforcement shall not adversely affect the tax-exempt
status of any bonds of the City any portion of the proceeds of which were allocated for the
expenditure of funds for eligible project costs. The foregoing proviso is given by the City
as part of its covenants with the holders of such bonds and is not for the benefit of the
Developer or any other person other than such holders.
•
•
23-A
N
E. While the Bonds are outstanding or any principal
or interest payment.; advanced by City have not been reimbursed, any
transfer of all or any ownership interest in the Wal-Mart Parcel or
any improvements on said parcel, and Wal-Mart's obligations under
this Agreement (including the ownership of the beneficial interest
under a land trust that may take title to said parcel) is only
permitted upon the prior written approval of the City, which
approval shall not be unreasonably withheld. As a minimum, the
City shall be entitled to require the following regarding any
transfer:
1. Any proposed transferee shall have the experience
and financial responsibility necessary to fulfill the obligations
undertaken by Wal-Mart in this Agreement.
2. Any proposed transferee shall have expressly
assumed the obligations of Wal-Mart hereunder in writing.
3. All instruments and legal documents involved and
affecting any such transfer from Wal-Mart to any transferee shall
be submitted to the City for review and, if approved, shall be
indicated as such in writing to Wal-Mart. In such event, Wal-Mart
shall be relieved from all further liability hereunder.
4. In the absence of specific written agreement by
the City, no transfer shall be deemed to relieve Wal-Mart or any
ou
CJ
-24-
•
• other party bound in any way by this Agreement or otherwise with
respect to the rehabilitation and construction of the Redevelopment
Project from any of their obligations with respect thereto as to
the interest transferred.
5. Wal-Mart shall in any event notify the City of any
transfer of any owner.,�hip interest in the Wal-Mart Parcel
(including the beneficial interest under any land trust).
1. While the Bonds are outstanding or any principal
or interest payments advanced by City have not been reimbursed,
Wal-Mart agrees to repair, replace or reconstruct any damaged or
destroyed portion of the Wal-Mart Improvements within a reasonable
time period.
9. Agreement Contingent Unon Comnletion of Bond Sale. The
parties acknowledge that the obligations set forth in this Agree-
ment are contingent upon the City's completion of the sale of its
Bonds, if necessary, and otherwise satisfying any conditions
precedent to the use of other funds as set forth in Paragraph
4.D(i) of this Agreement in order to provide the funds for the
Project Area. In the event such Bonds are authorized by
appropriate ordinance but are not sold or any conditions precedent
pertaining to other funds are not satisfied, this Agreement shall
be null and void and of no legal effect whatsoever.
Notwithstanding any of the foregoing, the City shall use its best
efforts to sell the Bonds, if necessary, and satisfy any conditions
precedent to the use of any such other funds.
0
-25-
10. Anti -Discrimination, Minority Enterprises. Etc.
•
A. Each of Developer and Wal-Mart agrees that in the
construction of the improvements on the Remainder Developer Parcel
and the Wal-Mart Parcel, respectively, it shall not discriminate
against any employee or applicant for employment because of race,
color, religion, sex, national origin or sexual orientation.
Developer and Wal-Mart each shall take affirmative action to
require that applicants are employed and that employees are treated
during employment, without regard to their race, creed, color,
religion, sex, national origin, physical disability or sexual
orientation. Such action shall include, but shall not be limited
to, the following: employment upgrading, demotion, or transfer;
recruitment or recruitment advertising, solicitations or adver-
tisements of employees; layoff or termination; rates of pay or
•
other forms of compensation, and selection for training, including
apprenticeship. Each of Developer and Wal-Mart further agrees that
it shall not discriminate against any person or group of persons on
account of sex, race, color, creed, religion, national origin,
physical disability or sexual orientation in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Remainder Developer Parcel or -the Wal-Mart Parcel, respectively,
and shall not permit any person acting for or on behalf of
Developer or Wal-Mart, as the case may be, to establish or permit
any such practice of discrimination with reference to the
selection, location, number, use or occupancy of tenants, lessees,,
subtenants, subleasees, or vendees of any portion of their
-2 6-
•
respective Parcels. Notwithstanding the provisions of this
Paragraph 10, Developer and Wal-Mart each shall be entitled to
employ union labor hereunder pursuant to the rules, regulations and
practices of applicable unions.
B. Developer and Wal-Mart shall each exercise best
efforts to secure minority business er,ter2rises the greatest
possible participation in construction and services for the
Remainder Developer Parcel and the Wal-Mart Parcel, respectively.
A minority business enterprise ("MBE") shall mean any entity which
is owned or controlled by one or more minorities (including,
without limitation, women), who, to the extent feasible, reside in
Evanston, and which is, to the extent feasible, a small business
concern within Section 3 of the Small Business Act. Developer and
• Wal-Mart shall each be responsible for achievement of their best
efforts undertaking with the goal that 20% of the aggregate dollar
volume of all construction and service contracts be let to MBEs
with respect to the Remainder Developer Parcel and the Wal-Mart
Parcel, respectively. Developer and Wal-Mart shall each exercise
its best efforts to identify appropriate MBEs and, where necessary,
shall assist such MBEs in qualifying to secure construction or
service work in the Remainder Developer Parcel and the Wal-Mart
Parcel, respectively.
C. Developer and Wal-Mart shall each comply with the
provisions of the Americans with Disabilities Act of 1990, with
respect to the Remainder Developer Parcel and the Wal-Mart Parcel,
respectively.
• -27-
11. Default, Remedies. Except as otherwise provided in 0
this Agreement, in the event of any default and/or breach of this
Agreement or any terms or conditions by any party hereto, such
party shall, upon written notice from the non -defaulting party,
proceed promptly to cure or remedy such default or breach within
sixty (60) days after receipt of such notice. If any auch default
is incapable of being cured within said sixty (60) day period, and
the defaulting party commences to cure the default within said
sixty (60) day period and proceeds with due diligence, then such
party shall not be deemed to be in default under this Agreement.
Notwithstanding the foregoing, with respect to the City's obliga-
tions under Paragraph 5 (D) (i i ) hereof, the City shall have five ( 5 )
business days from the date of City Council approval within which
to disburse approved funds, and the period within which to remedy
a default or breach of this time limitation shall be five (5)
business days after receipt of notice of default from Developer or
its designee. In case any action hereunder is not taken or not
diligently pursued or the default or breach shall not be cured or
remedied within the above periods, the aggrieved party may
institute such proceedings as may be necessary or desirable in its
opinion to cure and remedy such default or breach, including, but -
not limited to, an action to restrain any such default or breach of
its obligations, an action to compel specific performance by the
party in default or breach of its obligations, an action to recover
damages against any party liable pursuant to the provisions hereof,
or any other action at law or in equity. Except as otherwise set
-28-
•
•
forth in this Agreement, the rights and remedies of the parties to
this Agreement, whether provided by law or this Agreement, shall be
cumulative and the exercise by any party of any one or more of such
remedies shall not preclude the exercise by it at the same time or
different times of any other remedies for the same default or
breach by any other party. Any delay by any party in instituting
or prosecuting any actions or proceedings or asserting its rights
under this Agreement shall not operate as a waiver of such rights
in any way; it being the intent of this provision that such party
should not be constrained so as to avoid the risk of being deprived
of or limited in the exercise of the remedies provided in this
Agreement because of the default involved. No waiver made by any
party with respect to any specific default by any other party under
this Agreement shall be construed as a waiver of rights with
respect to any other default by the defaulting party under this
Agreement or with respect to the particular default except to the
extent specifically waived in writing. Notwithstanding anything in
this Agreement to the contrary, a default by any party of its
obligations under this Agreement shall not be deemed a default by
any other party to this Agreement. Notwithstanding anything in
this Agreement to the contrary, in the event of Developer's default
under this Agreement for the period from the date of delivery of
the Closing Notice to the City through the date of the Real Estate
Closing, Developer shall pay the City, as the City's sole and
exclusive remedy under this Agreement, the sum of $25,000 as
liquidated damages and not as a penalty.
0 -29-
12. Entire Agreement. This Agreement sets forth all the •
promises, inducements, agreements, conditions and understandings
among Developer, Wal-Mart and the City relative to the subject
matter hereof, and there are no promises, agreements, conditions or
understandings, either oral or written, express or implied, between
them, other than are herein set forth.
13. Survival of Terms, Bindina uoon Successors. The
covenants, terms, conditions, representations, warranties,
agreements and undertakings set forth in this Agreement (and
specifically including, without limitation, those covenants, terms,
conditions, representations, warranties, agreements and
undertakings which survive the termination of this Agreement) shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors, assigns and legal representatives.
14. Term of Agreement and Redevelopment Plan. The term of •
this Agreement shall be from the date of execution hereof to and
including the latest of the following: (i) twenty (20) years from
the date hereof; (ii) the date upon which all Bonds issued pursuant
hereto have been returned and redeemed and any principal or
interest payments advanced by City have been reimbursed; (iii) the
date upon which the City's payment obligations described in
Paragraphs 4 and 5 hereof expires or is satisfied; or (iv) the date
upon which the City's Redevelopment Plan and Project for the
Southwest Industrial Corridor is satisfied and terminated.
-30-
•
• 15. Governina Law. The validity, meaning and effect of
this Agreement shall be determined in accordance with the laws of
the State of Illinois.
16. Supplemental Agreements. The parties agree to
cooperate in order to execute such supplemental agreements,
memoranda and similar documents as may be necessary to implement
the terms of this Agreement.
17. Force Maleure. None of the parties hereto shall be
liable for damages due to delay or failure to perform any
obligation under this Agreement, if such delay or failure results
directly or indirectly beyond the reasonable control and without
fault or negligence of any such party. Such circumstances shall
include, but not be limited to, acts of God, acts of war, riots,
• strikes, lockouts, flood or other natural catastrophe..
18. Notices. Any notice, request, demand or other communi-
cation made in connection with this Agreement shall be in writing
and shall be deemed to have been duly given on the date of
delivery, if delivered to the persons identified below in person,
by courier service or by facsimile copy (with original copy mailed
the same day in accordance with the provisions of this Paragraph),
or two (2) business days after mailing if mailed by certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the City:
•
City of Evanston
2100 Ridge Avenue
Evanston, IL 60201-2716
Attn: City Manager
-31-
Copy to: Jack M. Siegel •
Altheimer & Gray
10 S. Wacker, Suite 400
Chicago, IL 60606
If to Developer: Joseph J. Freed & Associates, Inc.
1000 Capitol Drive
Wheeling, IL 60090
Attn: Larry Freed
Copy to: Edward E. Yalowitz
Holleb & Coff
55 E. Monroe St., Suite 4100
Chicago, IL 60603
If to Wal-Mart: Wal-Mart Stores, Inc.
Bentonville, Arkansas 72716
Attn: Real Estate Department
19. Severability. If any provision, condition, covenant
or other clause, sentence or phrase of this Agreement is held
invalid by a court of competent jurisdiction, such provision shall
be deemed to be excised herefrom and the invalidity thereof shall
not affect any other provision, condition, covenant or other •
clause, sentence or phrase contained herein. Notwithstanding the
foregoing, if any such invalid provision goes to the essence of
this Agreement so that the purposes of the Agreement cannot be
fulfilled (for example, the City's obligation under this Agreement
to provide the $2,000,000 described in Paragraph 4A hereof), then
this Agreement shall terminate as of the date of such judgment.
20. City Approval. The Mayor and Aldermen of the City
shall adopt and approve an ordinance approving of the terms and
conditions of this Agreement and authorizing and directing the City
Manager to execute this Agreement on the City's behalf. Copies of
said ordinance, certified by the City Clerk, shall be provided to
Developer and Wal-Mart.
-32-
•
• 21. Amendments: Recordation. This Agreement may be amended
from time to time with the written consent of the parties hereto,
provided, however, that if a request for an amendment hereto by the
owner of the Remainder Developer Parcel or the Wal-Mart Parcel does
not affect the rights or obligations of the owner of the other
Parcel, then this Agreement may be so amended by the party
requesting the amendment (without the consent or agreement of the
other owner) and the City. The parties.shall cause a memorandum of
this Agreement to be recorded in the Office of the Cook County
Recorder of Deeds.
22. Miscellaneous. The parties hereto acknowledge and
agree that the individuals who are members of the group
constituting the corporate authorities of the City are entering
• into this Agreement in their corporate capacities as members of
such group and shall have no personal liability in their individual
capacities.
23. Execution of this Agreement. This Agreement shall be
signed last by the City and the City Manager shall affix the date
on which he signs and approves this Agreement on the first page
hereof, which date shall be the effective date of this Agreement.
24. Trustee's Exculpation. This Agreement is executed by
LaSalle National Trust, N.A., not personally, but as Trustee as
aforesaid, in the exercise of the power and authority conferred
upon and vested in it as such Trustee, and it is expressly
understood and agreed that nothing herein contained shall be
construed as creating any liability on said Trustee personally to
• -33-
perform any covenant, representation, agreement or condition, •
either express or implied herein contained, or with regard to any
warranty contained in this Agreement, all such liability, if any,
being expressly waived by the other parties hereto and by every
person now or hereafter claiming any right hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the year and date first above written.
CITY OF EVANSTON, an Illinois
municipal corporation
By:
ATTEST: City Manager
City Clerk
ATTEST:
By:
Its:
ATTEST:
By:
Its:
JOSEPH J. FREED & ASSOCIATES, •
INC., an Illinois corporation
By:
Its President
LASALLE NATIONAL TRUST, N.A., not
personally but solely as Trustee
under Trust No. 107664
By:
Vice President
-34®
•
•
WAL-MART STORES, INC.
a Delaware corporation
By:
Title:
ATTEST:
By:
•
Its:
• -35-
EXHIBIT A
ORDINANCES
Ordinances adopted by the City Council of the City of Evanston on
June 25, 1990 creating the Southwest Tax Increment Finance
District.
1. OrdinF.nce 47-0-90
An Ordinance Adopting and Approving the Tax Increment
Financing Redevelopment Plan and Redevelopment Project for
a par_ of Southwest Evanston;
2. Ordinance 48-0-90
An Ordinance Designating the Boundaries of the Southwest
Tax Increment Redevelopment Project Area; and
3. Ordinance 49-0-90
An Ordinance Adopting the Use of Tax Increment Financing
for the Southwest Tax Increment Redevelopment Project Area.
CJ
•
•
EXHIBIT B
REDEVELOPMENT SITE PLAN
•
•
• costs, expenses and attorneys' fees incurred by the prevailing
party in connection with the en_orcement of the terns and
provisions of this Agreement shall be paid by the unsuccessful
pary-
•
12. Nctwithstanding anything in this Agreement to the
contrary, if the eminent domain proceedings have not been
completed on or before three (3) years from the date of filing of
said proceedings, then unless such proceedings have been delayed
due to (i) pending litigation or other matters beyond the control
of Freed or (ii) the failure of the City to comply with the te---s
of this Agreement (in the case of any such delay said three-year
;;eriod shall be increased by the number of days of all suc",
delays), the City shall have the right, but not th_ obligation, to
erminate tu.
_.e eminent domain proceedings with notice to but
without the consent of Freed.
13. This Agreement has been executed and delivered in, and
shall be governed by and in accordance with the laws of, the State
of Illinois.
14. All notices, requests, demands and other c =_nunicatiens
made in connection with this Agreement shall be in :.-citing a:z
shall be deemed to have been duly given on the crate cf delivery,
if delivered to the persons identified below in person, by courier
service or by facsimile copy (with original copy mailed the same
day), or two (2) days after mailing if mailed by first class
certified mail, postage prepaid, return receipt requested,
addressed as follows :
if to the City :
CJ -y of E`vanston
2100 Ridge Avenue
Evanston, Illinois 60201-2796
Attention: City Manager
Fax: (708) 328-0267
with a copy to:
Jack M. Siegel, p.C.
Altheimer & Gray
10 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Fax: (312) 715-4800 {
-4-
If to Freed: •
Mr. Joseph J. Freed
Joseph J. Freed and Associates, Inc.
1000 Capital Drive
Wheeling, Illinois 60090
Fax: (708) 215-5282
with a copy to:
Mr. Edward E. Yalowitz
Holleb & Coff
55 East Monroe, Suite 4100
Chicago, Illinois 60603-5396
Fax: (312) 807-3900
Such addresses may be changed from time to time by means of a
notice given in the manner provided in this paragraph.
15. The City acknowledges and agrees (i) that Freed has
executed this Agreement in furtherance of a plan of redevelopment
for the Center, which includes the acquisition of the Property by
Wal-Mart, (ii) that in connection with said acquisition, Wal-mart
will be consulted regarding the decisions and actions to be taken
by Freed hereunder, and (iii) that Freed's decisions and actions
hereunder may be based on advice or pursuant to directions from
Wal-Mart. 0
The parties hereto have duly executed this Agreement as cf
the date Lrst_above written.
Attest:
City Clerk
CITY OF ::J?tiSTON,
By:
Mayor
a
JOSEPH J. F.ED AND ASSOCIATES, INC
By: .{
Joseph J. Freed, President
•
-5-
® Exhibit -A
•
LEGAL DESCRIPTION
Lot 1 in Hess' Subdivision of part of the North 300 feet of the
West two thirds of the South west Quarter of the South west
Quarter of Section 24, Township 41 North, Rance 13 East of the
Third Principal .Meridian in Cook County, I11ir_ois.
and
Lot 1 in Hartrev - Keeney Corporation Resubdivision of part of
the North 5 feet of Lot A in Oakton Consolidation in the South
nest Quarter of the South west Quarter of Section 24, Township 41
North, Range 13 East of the Third Principal Meridian in Cook
County, Illinois and all of Lot 2 in Hess' Subdivision of part of
the North 300 feet of the nest two thirds of the South west
Quarter of the South west Quarter of Section 24, Township 41
North, Range 13 East of the Third Principal Meridan in Cook
County, Illinois
and
• That part of the North 150 feet of the West two thirds of the
Soa"h west Quarter of the Soup s
�h West Quarter of Section 24,
Township 41 North, Range 13 East of the Third Principal Meridian,
descriiaed as follows: Beginning at the ir_tersectlon of the
Easterly right of way line of Chicago and Northwestern Railway
Co=pany with the North line of said South e-st Quarter of the
Southwest Quarter of Section 24, thence East on said Line 53.12
feet, thence South at right angles to said North Line 100 feet,
thence West pazallel to said North Line 99.13 feet more or less
to the Easterly Line of Right of Way of said Railway Company,
thence Northeasterly along the said Right of way Line 110.09 feet
Tore or less to the Point of Beginning, in Cook County, Tllino'
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EXHIBIT D
CENTER IMPROVEMENT SITE PLAN
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EXHIBIT E
OFF -SITE IMPROVEMENT SCHEDULE
Description of Improvement
Estimated Cost
1. Construct a new cul-de-sac on
$60,000.00
Washington immediately east of Pitner;
remove the existing traffic barrier
(emergency access pavement) and replace
with a full width street section at
Washington and Hartrey.
2. Restrict left turn movements from Main
$20,000.00
into existing Main Street Commons Shopping
Center entrance located 80' west of
Fowler by construction of a raised barrier
median from Fowler to McDaniel. This will
require pavement restripping of Main and
new signage.
3. Construct a new right turn deceleration
$20,000.00
lane along the south side of Main for east
bound traffic on Main entering shopping
center at McDaniel.
• 4. Modify existing traffic signal at Main
and McDaniel to include left turn phase
for west bound Main Street traffic. $20,000.00
TOTAL $120,000.00
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EXHIBIT F
SCHEDULE OF ELIGIBLE PROJECT COSTS
Real Estate Acquisition Cost
Zera Land $1,461,269
City Land 200,673
Other Eligible Project Costs 338,058
Scrap Yard Parcel and Scrap Yard Annex 750,000 (,astimate)
(including costs described in
Paragraph 6 of this Agreement)
$2,750,000
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1 Such costs may not include the acquisition of the Scrap Yard
Parcel and the Scrap Yard Annex. Payment of such costs is subject
to satisfaction of all applicable conditions and requirements set is in Paragraph 5 of this Agreement.
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