Loading...
HomeMy WebLinkAboutORDINANCES-1992-084-O-92i "oe 84-0-92 AN ORDINANCE Approving the Terms and Authorizing a Revised Redevelopment Agreement for the Redevelopment of the Main Street Commons Shopping Center WHEREAS, on July 13, 1992 the City Council of the City of Evanston considered and duly adopted Ordinance 63-0-92 by which it approved the terms and authorized the City Manager to execute a redevelopment agreement for the redevelopment of the Main Street Commons Shopping Center; and, WHEREAS, the parties to this agreement have determined that it is in the best interests of the redevelopment project to modify certain provisions of this agreement in order to expedite the project; and WHEREAS, the corporate authorities of the City of Evanston have reviewed • these modifications and have deemed that it is in the best interests of the people of Evanston to include these modifications in the redevelopment agreement for the redevelopment of the Main Street Commons Shopping Center: NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EVANSTON, COOK COUNTY ILLINOIS: Section 1: That the City Manager be and is hereby authorized and directed to execute a revised redevelopment agreement which is in substantial conformity with the revised redevelopment agreement marked as Exhibit A, attached hereto and incorporated herein by reference, which modifies certain provisions of the redevelopment agreement duly authorized by the City Council pursuant to Ordinance 63-0-92. • Wo, Section 2: Except as modified herein, the provisions of Ordinance 63-0-92 shall remain in full force and effect. Section 3: That this Ordinance shall be in full force and effect from and after its passage, approval and publication in the manner provided by law. Introduced:1992. Adopted: �(iI U-�' %� �— , 1992. Approved: i�E�/ 1992 !i Mayor ATTEST: 60 % City Clerk Approved as to fof �-�JA 1j Corporation Counsel 29Y72-73 • E _• ORDINANCE 84-0-92 EXHIBIT A Redevelopment Agreement for the Redevelopment of the Main Street Commons Shopping Center Revised October, 1992 0 • 0- REDEVELOPMENT AGREEMENT MAIN STREET COMMONS SHOPPING CENTER, CONTENTS PAGE Preamble............................................... 1 Paragraph1 - 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 Public Improvements ...................... 9 Paragraph 6 - Sales Tax and Property Tax Increment..... 17 Paragraph 7 - Additional Agreements and Covenants ofDeveloper.......... ................. 21 • Paragraph 8 - Additional Agreements and Obligations of Wal-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 Redevelopment Plan ...................... 30 Paragraph 15 - Governing Law ........................... 31 Paragraph 16-- Supplemental Agreements ................. 31 Paragraph 17 - Force Majeure ........................... 31 • _• 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 • -2- 0- RESTATED REDEVELOPMENT AGREEMENT MAIN STREET COMMONS SHOPPING CENTER This Redevelopment Agreement ("Agreement") is made this day of , 1992,. by and among the City of Evanston, Illinois, a municipal corporation (the "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 • 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 0 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, 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 andprivate property owners, potentially including all or a portion of the Highland Parcel, to permit the expansion of the Center and accommodate the sale of approximately up to 12.2 acres • -2- of land, plus all or a portion of the Highland Parcel acquired by • Developer, 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 conditions 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- -30 - • 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) attempt to enter into a contract to acquire all or 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 0 the renovation of certain of the remaining improved 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 f orty- f ive (45 ) days of ter receipt of an environmental audit report for certain land (identified on the Redevelopment Site Plan and hereinafter referred 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 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, possibly all or a portion of the Acquired Highland Land and the 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; (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 0 -6- Parcel will be substantial) in development of the Wal-Mart Y accordance with the Center Improvements Site Plan and in compliance with all City codes and ordinances. Wal-Mart further agrees to 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 Resr)onsibilities. The City shall do or cause to be done the following: 40 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; B. Pay to Developer, in consideration or 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 -7- • 0 (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). 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 0- acquisition of the Zera Land and the City Land by the Trustee. E. Upon acquisition of the Scrap Yard Parcel and the Scrap Yard Annex, take all steps necessary for the vacation of the west 10.45 ft. of Pitner Avenue lying adjacent to and east of the said two parcels. 5. Use of Bond Proceeds; Acquisition of Project 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 its 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- -9- a 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; the costs incurred by the City which shall include but not be limited to capitalized interest and issuance costs, a general itemization 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 shall attempt to purchase the Acquired Highland Land either simultaneously with or subsequent to the Real Estate Closing, and may convey to Wal-Mart all or a portion of the Acquired Highland Land. 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, • -10- 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 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 payment 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. r 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 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 of 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 • -12- 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, 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 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 -130 - V 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 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 mandated 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 the adjoining portion of the west half of Pitner Avenue), and (ii) with respect to the Scrap Yard Parcel and the Scrap Yard Annex and the adjoining portion of the west half of Pitner Avenue, 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 9 -14- 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 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 limited to, (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 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. Building 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. • -16- 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, SA and • SB of this Agreement. The certification shall be in such form as will enable it to be recorded. Upon written request by the 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 -17- 0 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 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 -18- 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 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 -19- • • 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 ST-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 • -20- 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 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. Notwithstanding anything to the contrary contained herein, in the event that Developer assigns to Wal-Mart, or any of Wal- Mart's affiliates, all of Developer's right to acquire the Scrap Yard Parcel and the Scrap Yard Annex at the Real Estate Closing, such assignment shall include all of Developer's rights and obligations under Paragraphs 4B, 4C and Paragraph 6 hereof, including Developer's obligations under the Indemnification Agreement. -21- • 7. Additional Aareements 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 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. S. 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: 0 -22- 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- 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 commencing with the first full calendar year after Wal-Mart opens for business -in an amount less than $280,000, but only for so long -23- 40 • 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 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 • -24- which were allocated for the expenditure of funds 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. E. While the Bonds are outstanding or any principal or interest payments 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 -25- • • 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. S. Wal-Mart shall in any event notify the City of any transfer of any ownership 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 Continaent Upon Completion 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 -26- 10. Anti -Discrimination, Minoritv Enterorises. 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 -27- 0 • 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 enterprises 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.- 0 -28- 11. Default, Remedies. Except as otherwise provided in • 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 such 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) (ii ) 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 -29- 0 .• 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. • -30- • 12. Entire Aareement. 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 upon 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 Aareement 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. -31- • • 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. Sunnlemental 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 0 -32- Siegel M. Sie • Copy to: g 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. 701 South Walton Boulevard 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 0 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 Aonroval. 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 -33- 0 said ordinance, certified by the City Clerk, shall be provided to Developer and Wal-Mart. 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 • -34- understood and agreed that nothing herein contained shall be • g g construed as creating any liability on said Trustee personally to 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 • JOSEPH J. FREED & ASSOCIATES, INC., an Illinois corporation ATTEST: By: Its: ATTEST: By: Its: By: Its President LASALLE NATIONAL TRUST, N.A., not personally but solely as Trustee under Trust No. 107664 By: Vice President -35- 0 WAL-MART STORES, INC., a Delaware corporation By: Title: • ATTEST: By: Its: 0007713.WP - 09/17/92 at 5:37pm • -36- 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. Ordinance 47-0-90 An Ordinance Adopting and Approving the Tax Increment Financing Redevelopment Plan and Redevelopment Project for a part 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. • • • EXHIBIT B REDEVELOPMENT SITE PLAN • 0 a • 1i I % . 0%�, e fF ©,, ` = p A lldto S $ N .4l.L�iO S �i �i / Jf. /jz)w0 .ro ew l J"I tv m a .,.m.le At �.:e+' .v.k r,rrllrr-7ebr. .ror �sA Ut '71,•sl"• N W �j�v0' !F ' •�� � _! V 1 O N i to i09 F tv Q r ,n,,rao r \, h ?o rn � • 27M.a nvN Iry V. 7JZXYVd g UlWd F ..i O / .MM. 7 t. oro ram` {fIW j� � � R l RQ l jI.lr/i! r - t �QQ I - M ,a .j IAA N r� I �i s< R-p q i[ia I. 7 r,Yy[;V�uggY�ntft"�3:Jr:sg y' fyu.i tau aNY'1f���i5��6pp9Lyy L''��14,x�5{}SJaI�Y�'SlS:i�x,�$ 1 UQ[aoaaa.M$14n g i7 wu nb���N E:,{�Nr,,V\ ,�Co SpS41 iyr F 3;`\n["j]s�s v�{d•V=:�JW �ii �wr0.�!f y I. }]7fy i► ¢ V .j0 �ytl ti 1�N S7;�inQ �'�~'•�^,yN :O er Uo r e�Y ro�Rj�ii b`LS<^ �i VIA .< y .' o: ,^C iV� N � V ,K I fokb'( W 0 , I ,.taxi PAMa �� 99 Y b �Y 11 4up L E .• EXHIBIT C ENVIRONMENTAL INDEMNITY AGREEMENT • 0 jdk #11-11/19/91 • INDEMNIFICATION AGREEMENT This Indemnification Agreement (RAgreemento) is made this day of , 1991 by and between the City of Evanston, Illinois, a (NCitym), and Joseph J. Freed and Associates, Inc., an Illinois corporation ("Freed"). R E C I T A L S A. Freed is the developer of the Main Street Commons Shopping Center ("Center") located on the south side of Main Street just east of McCormick Boulevard in Evanston, Illinois. In an effort to increase retail sales generated by the Center. and create new vitality for the entire southwest area of Evanston, Freed has conceived of a redevelopment plan which includes an expansion of the Center to permit the construction of a Sam's Club, an affiliate of Wal-Mart Stores, Inc., a Delaware corporation ('"Wal-Mart") on property consisting of approximately 13.5 acres of land ("PropertyO). A portion of the Property consists of a parcel of land legally described on Exhibit A attached hereto and hereby made a part hereof, which is privately owned and currently operated as a scrap yard (OScrap Yardn). B. In connection with said redevelopment plan, the City intends to exercise its eminent domain powers to acquire the Scrap • Yard and Freed has agreed to enter into this Agreement with the City. In consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The recitals set forth above are accurate and hereby restated by this reference. 2. The City shall promptly commence an action to acquire the Scrap Yard pursuant to its eminent domain powers and diligently prosecute the completion of the same subject to the terms and conditions of this Agreement. 3. Prior to the commencement of the eminent domain proceedings, the City and Freed shall agree upon the action to be taken by the City to determine the environmental condition of the Scrap Yard, including, but not limited to, hiring environmental consultants and authorizing an environmental audit. Upon commencement of the eminent domain proceedings, the City shall: (i) promptly perform or cause to be performed the environmental audit of the Scrap Yard; (ii) regularly consult with, obtain direction from and advise Freed regarding the progress of such environmental audit and the eminent domain proceedings, any negotiations with the owner of the Scrap Yard, and any other information the City obtains regarding the Scrap Yard; and (iii) promptly deliver to Freed the Scrap Yard appraisal, the environmental audit and all other reports of investigations performed in connection with the City's acquisition of the Scrap Yard. 4. Subject to the provisions of this Agreement, Freed shall reimburse the City for all costs and expenses incurred by the City in connection with the eminent domain proceedings, including, but not limited to, the award paid to the owner of the Scrap Yard in connection therewith, the City's reasonable attorney's fees and the costs of the Scrap Yard appraisal and environmental audit and related costs required in connection with said eminent domain proceedings. Upon the acquisition of the Property by the City, the City shall simultaneously convey the Property at the direction of Freed. 5. Subject to the provisions of this Agreement, Freed shall indemnify, hold harmless, and defend the City and any current or future officer, director, employee, or elected official of the City (collectively, the "Indemnitees") from and against any and all claims, liabilities, causes of action, losses, damages, ,.expenses, costs and assertions of claims or liabilities, incurred by Indemnitees arising out of or in connection with the • environmental condition of the Scrap Yard (all of the foregoing are referred to herein collectively as the "Liabilities" and individually as a "Liability") whether or not any such Liability is asserted against the City as an owner, operator, party in possession or otherwise; under any state, federal or local law or regulation pertaining to the release of contaminants of any nature; provided, however, that any such Liability arose as a result of either (i) the City's commencement of or continuing prosecution at Freed's request of the eminent 'domain proceedings, or (ii) the City's acquisition of title to the Scrap Yard at Freed's request pursuant to the eminent domain proceedings, and provided further that the City did not, by its action or inaction (other than the prosecution of the eminent domain proceedings at Freed's request or the performance of the City's other obligations hereunder at the request and with the consent of Freed), increase the potential liability of the City for environmental defects in the Scrap Yard. The provisions of this Paragraph 5 shall survive the termination or successful completion of the eminent domain proceedings and the termination of this Agreement. 6. Freed shall have the right at any time during the eminent domain proceedings to direct the City to terminate the proceedings. Upon termination of the eminent domain proceedings by the City pursuant to the direction of Freed, Freed shall reimburse the City for (i).all costs incurred by the City in connection with the proceedings up to the date of Freed's notice •of termination, including, but not limited to, the City's reasonable attorney's fees, the costs of the Scrap Yard appraisal -2- and environmental audit and other costs reasonably incurred by the City in connection with. said proceedings, and (ii) all costs incurred by the City in connection with said termination, including the Scrap Yard owner's reasonable attorney's fees. Notwithstanding anything in this Agreement to the contrary, if the City elects to continue with the eminent domain proceedings after receipt of notice from Freed to terminate the same, then Freed shall have no responsibility or obligation to the City under this Agreement whatsoever for any action taken by the City in connection with the Scrap Yard from and after the date of said notice. 7. Time is of the essence of this Agreement. 8. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof, and the same may not be amended, modified or discharged except by an instrument in writing signed by the party to be bound thereby. 9. If any provision, condition, covenant or other clause, sentence or phrase of this Agreement shall become null and void or illegal for any reason as determined by order of any court of competent jurisdiction, the remaining portions shall remain in full force and effect. Notwithstanding the foregoing, if any provisions of this Agreement determined by any such court to be unenforceable go to the essence of this Agreement so that the purpose of this Agreement can not be fulfilled, specifically including, but not limited to, the enforceability of the rights of Freed hereunder, then notwithstanding anything in this Agreement to the contrary,. this Agreement shall terminate as of the date of any such court order. 10. Waiver of any breach or failure of any term or condition of this Agreement by either party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition, or waiver of any other term or condition of this Agreement. No party ,to this Agreement may assign, by operation of law or otherwise, all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other party to this Agreement, except that Freed may assign to Wal-Mart any or all of its rights hereunder, including, but not limited to, the right to direct the conveyance of the Property. 11. If either party shall fail to perform its obligations hereunder, the other party shall have the right to pursue all legal and equitable remedies available to it, provided that such failure to perform remains uncured after the expiration of twenty (20) days after written notice thereof from the nondefaulting party. Without limiting the generality of the foregoing, if any default by Freed hereunder shall remain uncured after the expiration of the aforesaid notice period, the City shall have the right, but not the obligation, to terminate the eminent domain proceedings with notice to but without the consent of Freed. All • -3- • costs, expenses and attorneys' fees incurred b the prevailing Y P g party in connection with the enforcement of the terms and provisions of this Agreement shall be paid by the unsuccessful party. 12. Notwithstanding 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 terms of this Agreement (in the case of any such delay said three-year period shall be increased by the number of days of all such delays), the City shall have the right, but not the obligation, to terminate the 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 communications 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), 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: City of Evanston 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 60603-5896 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 Freedis decisions and actions hereunder may be based on advice or pursuant to directions from• Wal-Mart. The parties hereto have duly executed this Agreement as of the date first above written. Attest: City Clerk CITY OF EVANSTON, By: Mayor JOSEPH J. FREED AND ASSOCIATES, INC. By. . Joseph J. Freed, President • -5- 4( t� A w ri 4.1 43 .r 0 (. 0 ,d N u1 w -04 w W .0 i], 41 ,i r-, 41 VI 44 n O43 4-1 in too t4N v' O O.aV)�' O ;�'4W ((U4•r1 j)1n.v( t-, �� a 0 ro vV44 w Ps 41Nx,1 aJ wo 0 04U1-1 o, w O O •r1 U O (Y. V 4 V. O ►= .-1 E+ V. .r, 0. '4 4 1 0 • r1 . A a) Li -4 4-1 4-1 •►-1 O ro O r: 1-1 ►, L.141 43 � rro d c.• •r1 :� ►a 41 •r1 r 4) d) •0 r. p >4 a0 rvid1n0Or; •1VU011,+•-4-A (0••4 r) to on O •r4 •r) to F+ ro s; 4► r� •.1 (n /-1 ro .-1 V -1 O in r-( VI •r1 r� {"+ b •y •[i .1) V) •,4 J1 0, (d V) 01 r) u •r) VI O O •r1 •ri 01 •r1 11 V ,o: :-► .(� 01 •.1 ti� ,q A w o •r1 •, r ••� ►, b .r; tr 1,4 O 114 n. (1) J., a r : 1 4-I ro I'dJ4 41 41 tl• r.' b 41-1N .n ., ► (V a � O "0In N l(, O' �O n rye I O ►1 r, •.1 •• 1 (11O r. 0 4 t (d r-4 •[� rd Q1 (A 41 11 �, 11 N 0 V, .0 Z -4 10 114 U V. O ly, ►-r .r•.� V)r-) O Ora {1 0.0 V i . 01 to • • ri O H " ro - • r) ,d N a) .I : (I 3 (U 'd to V. 0) 10 0 44 p, U1 rn 1 p. 0► N H ,� •t) .("< 14 • 4 V) V •r1 (; 4) A 41 a u o "1 , v rr :c ro r. 4) ro Ji �1 114-1 iYi q u a) ►{ o) u .7 a► w 4)to la 41 0 N fJ m .,A to 0 0) C71.d t; O U V. O .,4 to n, 114 ro 0 r u N• .r' -r-1 .c: •11 VO 1n 0 o •r-1 a q 1-4 0 Olt 0 �1. 14 t j {� 114 ►1 1, 41 tr w V a �( •rl u 01 r-t u v o a '.� o a( v1 a, 41 ro v .r. ro ro cj 'Cf 4 N _, QI U v •, , •1-► to •,1 r� M 1� 41 -tf (d 41 � N N •d O :� , (d 01 { (d -0 N X C4 N 11 Q, 1{ R1 41 trd to • • -( 14 41 1A Di , . a, . 1R r: v d� tr o 0 01 U n1 a a, rJ )d 4) a •� q w (o •r1 O O �' H7 4, IV t; a' �1 ro •.� 41 cV T Al or. 4� 0 rl v a v� 0l vw ra4, o to {j JJ 114 W [: U •►1 t, 0144 :t Cr w 4� N rq •r♦ O 01 U is •,-1 On O V, H I'dt3 4j 7 4a r-1 J O '44 01, a V' •H 01 •1-1 O 44 e-0.1 •rl Q1 0 0 0 ro 0 •ri w• •r1 3 .i7 t� .114i� O (d U r.� V 44 In r. >1 4) 4) nV 1149110 d ► 0.0.t�.roV a iLN •0 Ln •r1 'JI4) in 0► to ut A) VI r4 01 4144 0"1 •r•1 44 ("1.14 .r! N �1 O .r"i V O J1 V) 0 • rd V N N 41 01-1 0 ro ►-1 0 ro 044 11 ►J N W ro r-4 10 In N a► a 4)44 o .q In � W .0 ro 4 41 •r•r 0 4) QI •rl { 4, LJ1 � v► l'0P� �, o► p1 � � VI in 0 V1r-( r► tp►-4 o r�l (d •ri J tJ� u {1 41 4 V' tt: Wu •� pq {1 p r-1 w r� r-r •1� �t' ►J •* r, a (UPI i1 4) � ' N (� J UO..49 a • �,t-(ro11uv)144JJ41 2 0 EXHIBIT D CENTER IMPROVEMENT SITE PLAN Note: The attached Center Improvement Site Plan is based on the assumption that Developer acquires and conveys to Wal-Mart only those portions of the Highland Parcel designated as Parcel "E" and 11E-1." on the Redevelopment Site Plan attached as Exhibit "B" hereto. In the event that Developer acquires and conveys to Wal-Mart the entire Highland Parcel, all improvements located on the Highland Parcel shall be demolished and converted to additional parking spaces, and the Center Improvement Site Plan shall be revised accordingly. In the event that Developer does not acquire any of the Highland Parcel, all improvements currently located on the Highland Parcel shall remain in place, and the Center Improvement Site Plan shall be revised accordingly. • • 0 n • • SrAff r {- ; r-� 1�1 L_J r -- LE A0040V r� ti "'c '-� fX/ P�-1J 1 LJ I t91 I L_1 rw ct . r- I ' I�liLlllllilllillli Illilllilliliiiiillliil • 'n• �� J�1.1111111 IiIIIII�IIIIIIII � i �� C: "J." 5,7 L , w► r -;� / t-r�n»n C 1LG,J1La � / / Tnrrtrt / / ^� �GL/JJfittttittt 3, �1111111,111 Q 't-� t iwtuu� r i � r ff�• 4 �iY i 1 1 i � yyyLr.+yttv� -� - r �1111 R t .�iJ/1115�1113�ii�st - I ' M I I� I I/ 00.1 Y FFFFTTTIT "3 Arz&& swam p r'/' eava ta� I L'i 11� r / fffffffffffe, ti; h{I Ny �1 1 -:'I .fit • ../////////////r/ i =] 1 l J; Q V I I.{�vav�wwwra .aiv�EN :7 1 1 ///n Cll V, 14/.>N>MMfMq fh/fN>N>%71 i' K�K�FHfHfH�K� 1 t 1 t �^ ,� 11 'Y�7 •\\\\\\\\r'1 C'` 1 1 1 r7 :i1 \ I � 1` �LLL/J1LLG/11� 1 t� 4tusuau� 7 II 11 1 1............1111Jy� + Itr 11 It t_yl 11 LI �.i LILIL14.1 Lu '1 11 IL �i L4.64 AJJ.0 Litt 1� f a• f 1,(�'�— . � �r- ' N,;,,, �,. + + 1 }.1�. ow, Rr" i 4- I ' a1f11 EXHIBIT D ` Center Improvement Site Plan EXHIBIT E OFF -SITE IMPROVEMENT SCHEDULE Description of Imr)rovement 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 • ' • ♦ • • EXHIBIT F SCHEDULE OF ELIGIBLE PROJECT COSTS, Real Estate Acquisition Cost Zera Land City Land Other Eligible Project Costs' Scrap Yard Parcel and Scrap Yard Annex (including costs described in Paragraph 6 of this Agreement) $1,461,269 200,673 338,058 750,000 (estimate) $2,750,000 ' 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 forth in Paragraph 5 of this Agreement.