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HomeMy WebLinkAboutFirst Amendment to Redevelopment Agreement for Emerson Square DevelopmentFIRST AMENDMENT TO REDEVELOPMENT AGREEMENT by and between CITY OF EVANSTON, ILLINOIS And BRINSHORE DEVELOPMENT, LLC Regarding: THE NEIGHBORHOOD STABILIZATION PROGRAM 2 GRANT NUMBER B-09-LN-IL-0026 ..K -n 10 2,0n o s� 114324.8 THIS FIRST AMENDMENT TO REDEVELOPMENT AGREEMENT ("Amendment"), is made and entered into as of , 2011, by and between the City of Evanston, Illinois, a home rule unit of local government located in Cook County, Illinois (the "City"), and Brinshore Development, L.L.C., an Illinois limited liability company ("Developer"). RECITALS A. Pursuant to the terms of a Letter of Commitment dated July 14, 2009 between the City and Developer, the City and Developer partnered to submit an application (lD#803931969) to the United Sates Department of Housing and Urban Development ("HUD") for funding under the Neighborhood Stabilization Program 2 ("NSP Program"). B. The City and Developer entered into a Supplementary Agreement, dated May 25, 2010. C. HUD awarded NSP2 Grant Number B-09-LN-IL-0026 to the City on February H , 2010 in the amount of $18,150,000.00, pursuant to (the "NSP Grant"). D. The NSP Grant is intended to be used to finance, in part, the following activities: (1) the acquisition, rehabilitation and/or development, leasing and/or sale of a minimum of 100 single-family, multi -family and condominium units located within census tracts 8092 and 8102 that meet guidelines adopted by HUD and certain other criteria as further set forth in this Agreement (the "Scattered Site Development" or "Phase 1") and (ii) the development of the first phase of an approximately 69-unit, two-phase mixed income, mixed tenure residential development, consistent with the West Evanston Master Plan and located within the area roughly bounded by Emerson Street, the alley east of Dewey Avenue, Foster Street and Gilbert Park and Jackson ("Emerson Square Development" or "Phase 2" collectively the Scattered Site Development and the Emerson Square Development are referred to herein as the "Development"). E. The City and Developer executed that certain Redevelopment Agreement dated as of September 14, 2010 (the "Agreement") whereby the City retained Developer to provide certain development services in connection with the Scattered Site Development. F. The City and Developer desire to amend the Agreement to provide for the first phase development of the Emerson Square Development. G. The Emerson Square Development pursuant to this Amendment, and the fulfillment generally of the Agreement, as hereby amended, are in the vital and best interests of the City and the health, safety and welfare of its residents and taxpayers. NOW THEREFORE, in consideration of the premises set forth above, and the mutual agreements hereinafter set forth below, it is hereby agreed by and between the parties hereto as follows: Pa INCORPORATION OF RECITALS The representations set forth in the foregoing recitals are material to this Amendment and are hereby incorporated into and made a part of this Amendment as though they were fully set forth in this Article 1. 2. EMERSON SQUARE DEVELOPMENT Developer and the City shall work together to implement the Emerson Square Development through the acquisition, development and sale or lease of approximately sixty-nine (69) mixed -tenure, mixed -income housing units, a new street, a park and other site amenities. The Emerson Square Development will be developed in two phases as further set forth in this Agreement. The first phase, consisting of thirty (32) units, is referred to as "Phase 2A" and the second phase, consisting of approximately thirty-seven (37) units is referred to as "Phase 2B." Developer and the City intend to proceed currently with acquisition and development of Phase 2A and with certain environmental remediation of a portion of the Phase 2B site commonly known as 1601 Foster Street, Evanston, Illinois and identified as parcel index numbers 10-13- 210-034-0000 and 10-13-210-035-0000 (the "Robinson Site"). Developer and the City agree to work together in good faith to identify a mutually agreeable residential program funding sources for the acquisition and development of Phase 2B. a. Phase 2A. The first phase of the Emerson Square Development ("Phase 2A") will consist of the acquisition of a single 2.34 acre parcel (the "Phase 2A Site"), commonly known as the Bishop Freeman site (1600 West Foster Street) and the development of a thirty-two (32) unit mixed -income rental development, a new dedicated street, a park and related site improvements. The location of the Phase 2A Site is depicted on Exhibit A, attached hereto. i. Phase 2A Ownership Structure. EmSq, LLC, an Illinois limited liability company ("EmSq"), has been created to acquire and redevelop the Phase 2A Site. Developer controls EmSq, through its managing member, Brinshore, Inc., an Illinois corporation. EmSq intends to develop Phase 2A utilizing Low Income Housing Tax Credits ("LIHTC") allocated by the Illinois Housing Development Authority ("IHDA") in addition to Phase 2A Funds (as hereinafter defined) from the City and other funding sources identified by Developer. EmSq received a reservation of LIHTC from IHDA on August 19, 2011. ii. Acquisition. Developer holds an option to purchase the Phase 2A Site pursuant to that certain Agreement by and between Developer and Bishop Freeman Co. dated March 8, 2010 (the "Option Agreement"). The City agrees to accept an assignment of the Option Agreement and to close on the Option Agreement and acquire title to the Phase 2A Site within sixty (60) days after obtaining a draft No Further Remediation ("NFR") letter from the Illinois Environmental Protection Agency ("IEPA") with respect to the Bishop Freeman and Robinson sites. Acquisition is conditioned on obtaining a draft NFR letter and the commitment of sufficient funds to remediate the impacted portions of the Bishop Freeman and Robinson sites and develop the Bishop Freeman site. The City agrees to purchase the Phase 2A Site for a purchase price not to exceed $1,525,000.00 using a portion of the Phase 2A Funds (as hereinafter defined) or other funds. At the closing of the Phase 2A Site, the City will reimburse Developer for any amounts paid by Developer prior to the closing that are credited against the purchase price at closing (such as the option fee). Subsequent to the City's acquisition of the Phase 2A Site, the City will donate the Phase 2A Site to Clearbrook, Inc., an Illinois not -for -profit corporation ("Clearbrook"), so the City can qualify for and receive Illinois Affordable Housing Tax Credits ("Donation Tax Credits"). The Phase 2A Site will be reappraised before the donation and conveyance to Clearbrook in order to determine the appraised fair market value of such property for purposes of establishing the amount of available Donation Tax Credits. The City agrees to donate the Donation Tax Credits certificates to Clearbrook to facilitate the generation of Donation Tax Credits equity. All proceeds from such tax credits will be used to assist in the financing of the development of Phase 2A and that the proceeds from the sale of the Donation Tax Credits will be granted, by the City, to Clearbrook or another acceptable, qualified non-profit entity, which will then either contribute the Donation Tax Credit certificates or lend the funds to EmSq ("Donation Tax Credits Loan"). Subsequent to the donation and conveyance to Clearbrook, Clearbrook will convey title to the property to EmSq along with the proceeds of the Donation Tax Credits Loan. ill. Environmental Remediation. Developer will administer and manage on behalf of the City and engage or contract with consultants and contractors on behalf of the City for the removal, encapsulation or remediation of any and all of the following from the Phase 2A Site and the Robinson Site (a) Hazardous Materials (as defined below), including all asbestos or asbestos containing material, or polychlorinated biphenyl material, (b) other materials or substances that require remediation under any applicable law, (c) soil containing volatile organic compounds, (d) underground storage tanks, and (e) abandoned utility lines located in or on any portion of the Phase 2A Site which interfere with the proposed Phase 2A development (collectively the "Remediation"). The City shall use the Phase 2A Funds remaining after acquisition to pay costs related to the Remediation including but not limited to cost and expenses related to such consultants and contractors. Any additional costs after all Phase 2A Funds are expended will be the Developer's responsibility. Subsequent to the donation to Clearbrook, Developer will be responsible for implementing the remedial action plan on behalf of the City provided that the City shall be obligated to fund the cost of the Remediation, provided that sufficient funds have been committed for the cost of the remediation from the Phase 2A funds. For purpose of this Agreement, (a) "Hazardous Materials" means any pollutants, contaminants or industrial, toxic, hazardous or extremely hazardous chemicals, wastes, or substances which are defined, determined, classified or identified as such in any Hazardous Materials Law or in any judicial or administrative interpretation of any Hazardous Materials Law, including, without limitation, oil, petroleum, petroleum 9 byproducts, friable asbestos, polychlorinated biphenyls and urea formaldehyde and shall include any other pollutant or contaminant designated as such by Congress or the United States Environmental Protection Agency ("EPA") or defined by any other federal, state or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material, as now or at any . time hereafter in effect and (b) "Hazardous Materials Laws" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"); the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. ("TOSCA"); the Clean Air Act, 42 U.S.C. Section 7401 et seq.; and the Clean Water Act, 33 U.S.C. Section 1251 et seq. and any so-called "Superfund" or "Superlien" law; and the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq. ("OSHA"), as each is from time to time amended and hereafter in effect. iv. Phase 2A Funds. The City hereby commits and agrees to provide the following funds or benefits ("Phase 2A Funds") for the Emerson Square Development to EmSq, LLC: 1. Donation Tax Credits certificates, subject to Section 2.a.ii. 2. Two Million Eighty -Five Thousand Dollars $2,085,000.00) in NSP2 Grant funds. NSP2 Grant funds used in the Emerson Square Development do not need to be repaid to the City or HUD pursuant to the NSP loan documents, subject to regulatory compliance and substantial compliance by Developer with the terms and conditions of this Agreement. 3. One Million Dollars ($1,000,000.00) from City HOME fluids, Tax Increment Financing ("TIF") proceeds and City Affordable Housing Funds ("AHF"). Specifically, $600,000 in TIF Funds and $400,000 in City HOME and/or AHF funds. In the event the City obtains additional financing sources to replace the committed HOME, TIF or AHF funds, the City may reduce its HOME, TIF or AHFcommitments in the amount of such replacement financing. HOME, TIF or AHF funds used in the Emerson Square Development do not need to be repaid, subject to regulatory compliance and substantial compliance by Developer with the terms and conditions of this Agreement. Expenditure of Phase 2A funds must follow all relevant program regulations and guidelines including timing requirements. b. EnRaRement of Developer. Subject to the terms and conditions of this Agreement, the City hereby selects Developer as the developer of the Emerson Square E Development and Developer accepts such appointment as the developer of the Emerson Square Development. The City agrees to work exclusively with Developer to implement Phase 2A of the Emerson Square Development for a period of four (4) years from the date of this Amendment. c. Entitlements. The City agrees to process any required entitlements needed for the approval of the Emerson Square Development in a timely manner. Furthermore, the City agrees to support the Emerson Square Development in community meetings, funding applications, and other similar situations. d. Plans. Developer shall present the Phase 2A design plans and specifications to the City for its approval, which shall not be unreasonably withheld. e. Public Improvements. Phase 2A will include the construction and dedication of a new public street (including sewer and water improvements) and a new public park to be paid for using Phase 2A Funds and other project sources. Developer will be responsible for the construction and financing of the new public street to City of Evanston standards. Upon completion of such construction, the City will accept a dedication of the street. Developer will also be responsible for the construction and financing of the public park in Phase 2A. Developer agrees to dedicate and the City agrees to accept a dedication of the public park. Developer will also be responsible for obtaining, if required, an NFR letter from IEPA with respect to the public park. The City and Developer will negotiate in good faith to determine responsibility for the construction of the public park in Phase 2B. The City shall have the right to approve plans and specifications of public improvements in advance of construction and have the right to inspect public improvements prior to dedication. f. Condemnation. To the extent allowable under the NSP2 Grant, the City agrees to consider using its power of eminent domain if necessary to acquire any property in Phase 2A required for the Emerson Square Development. g. Developer Arranged Financing. Developer will use reasonable efforts to arrange for financing for Phase 2A costs and expenses in excess of the Phase 2A Funds provided by the City. BREAKUP PROVISION. If the City decides not to proceed with the Phase 2A development and prior to such decision the Developer has undertaken any pre - development activities related to such phase, then the City agrees to reimburse Developer for third party expenses up to $300,000 incurred by Developer with respect to any pre - development activity related to Phase 2A. If the Developer is unable to secure funds sufficient to finance the development, the City shall have the right to unilaterally terminate this Agreement solely with respect to Phase 2A, and the City shall not be responsible for any third party expenses incurred by Developer with respect to Phase 2A. Notwithstanding the foregoing, after the Reservation Agreement is executed between EmSq, LLC and 11IDA for the Phase 2A development, this Agreement cannot be terminated for that particular phase. 0 4. MISCELANEOUS PROVISIONS a. Except as specifically amended herein, all of the terms, covenants, representations, warranties, conditions and stipulations contained in the Agreement are ratified and confirmed in all respects and shall continue to apply with full force and effect. b. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Agreement. C. The roles and responsibilities of the City and Developer with respect to this Amendment are set forth above. The City and Developer agree to undertake their respective roles and responsibilities and further agree to work together and cooperate in good faith to implement the provisions of this Amendment with respect to the Emerson Square Development. d. This Amendment may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. e. A facsimile signature shall be deemed an original signature. f. This Amendment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. [Signatures on following page] 7 IN WITNESS WHEREOF this Agreement has been duly authorized and approved by the City Council of the City of Evanston, Cook County, Illinois, and duly authorized, approved and executed by Brinshore Development,, L.L.C. as of the date and year first above set forth. I. DEVELOPER: CITY OF EVANSTON Brinshore Development, L.L.C., an Illinois limit ' i 1 co ny y: _ By: l R' . Sciortino, President, RJS City Manager v Real Estate Services, Inc.; Member, Brinshore Development, LLC Exhibits Exhibit A Phase 2A Land II. ATTEST /-� I � - - - --- `_ ITY CLE700" pp oved as to form: W. `'rant Farrar tN �, Corp=o ratl®r4 ColJr18Gl EXHIBIT A Phase 2A Land 0 5956> .5956] ALTA/ACSM Land Title Survey OF Part of Section 13, Township 41 North, Range 13 East of the Third Principal Meridian, in Cook County, Illinois. Pot Bi N.R..w O N Y.X. 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W(107.sle.751a.] „1 � ' 9677(]a�\ Fk7lDE 0.06'N ivi iu Y 0.23'W. sysa 597.5, 59]E -BROKEN-UP ASPHx z s' �59La9 "a 13 j 596 ]9 1-4 59019 F�9fi 70 /�jN/ p o.2�.xew. - �� � Le eln POUND 1.02'N. SITE MAP •996.0 GRAPHIC SCALE so a T 9a 40 IN rear ) mA = ea R flY EIEY.-S9aA` I Ixv. XID"1-s91.7e 96 999.5', E 49- sb" q 11 fcb59 .a' 3$3'zz 595. �995.1 W s L1 •59956 'S9 65 .11 it ` t j99 �v�i? ss9 uxo wax PIPE °�b��b� i�i ns, a a.Da'e j 10, tB' •s9e.v I FGFNn ANO ARRRFVIAnnNG 14 .05�\"fit 5',]" o �M1 \C, PROPERTY LINE BUILDING \ \¢\\ � .souse ]fi�lNl \ t, CONCRETE 590.91 66l°# ASPHALT VI\\ 2 3 DEPRESSED CORE \ \ \ \ 2-415'.7-9 la" _ _ _ CHAIN LINK FENCE \ 3-3' IRON FENCE \\ W g g]• 041 '"ST.m - . O, - P WOOD FENCE GUARDRAIL V f �' • FOUND PK NAIL 1\- )'it •s9e>2 • FOUND REBAR a SET RAG NAIL 4 SET/FOUND CUT CROSS SEWER LINE �\ \ 6.05\ W WATER E \ \ C GAS LINE \ \ CGM COMMUNICATION LINE is SHE SRC HEAD E COMMUNICATION UNE - OHE- OVERHEAD ELECTRIC UNE \9UIRtb NG m N y - UGE- UNDERGROUND ELECTRIC UNE N G„� z DCI]n5 BACK OF CURB ELEVATION •\ T.. •59eA1 FL1269 ROW UNE ELEVATION EPt] 23 EDGE OF PAVEMENTEUEVARON Frl ].3a FINISH 00R EVAnONTIO. Q MANHOLE WATER MANHOLE 6'S METER \ © \ TELEPHONE MANHOLE (DISCaHHEL1E0) 0) TELEPHONE MANHOLE \ m CURD INLET \C$I'eVp��'�.(Y`,t'1��� H,MtO� \ . 0.11N.W. � O CATCH BASIN \J'l d\���l SD U1S-�'1�1U"'9 • AREA DRAIN V'A'\6�\T"Of k\� \lam \ ki UGNi POLE \\W 5�� 1-l".]' •s9e 6> UTILITY POLE POLE POWER POWER W/GUY PARE PRE HYDRANT A GAS GAS VALVE \ 0 GAS METED 0 �Cfft\ BUFFALO METER b BUFEALO 60% Y WATER VALVE 0 TREE-OECIp0005 TREE -EVERGREEN BUSH POST \ \ SIGN \\ SOU-ARO # SPRINKLER V AA /� .& ' • CLEANWT •�[9 ��� Cc RUCXT MTAL CE 0.26'N.W. / BUILD NG s e. ���f��bi46ad0 �� �. 4-9•,12" 9e.79 1 FURTHER STATE that the above B. s96.9s?9.ns. 11 ,9 W 6 . 2.16'N.W. described property Is not located within " the boundaries of any special flood 9815 ,99.na LEGAL DESCRIPTION hazard zones (TOO- year flood plain) as e- Identified on Federal Emergency ° Lot A In Plat of Consolidation of Late 1 to B In Management Agency Map Number Block 6 in McNeill's Addition to Evonrtonj, and 1703100265J, panel 265 of 832 dated parts of Lot. 12 to 16 in Block I in Grant and August 19, 2008. 4-3 Jackson's Addition to Evanston, and also that 99x 61 .5 'e. part of Vacated Ashland Avenue lying South of I FURTHER STATE that I have made no the South Tine of Foster Street, all In Seaton Independent search of the owners for R"am r B m Third Township N North, Range 13 East , I the any other encumbrance, acurate p, or Third Principal Meridian, in Cook County, Illinois. any other fasts which an accurate and s9szl• current isearch may velou aW a Ran part ins survey, but have relied To Bfinshoro t this Development: than the information supplied mby the owner's representative. I also state & 0.1 0.2"7'N. on hi to testily that this map of plat and the survey that a current Title Commitment was e: Rium, A on 1 Minimum it is based were made q re eats for with the not furnished as o port of this survey. �G.IJV Ntt O TAPE ALTA Minimum Standard Detail Requirements for a1Dw. x DNuxE ATA/AGSM land Titleand Surveys, jointly es Items and I FURTHER STATE That the 5. 7(ed by 9. 1 and andNSPS,1 and includes Items I, a 4, representation accompanying plat e a scaled e69 599ry s9e 49 5, d work B. 9, completed and n of Table A thereof. The which Infound of the physical situation field work Was completed on November 2, 2011, which I found in the field and shows the location of visible evidence of ] Date: November 7, 2011 utilities which I found at the time of my survey of these premises, and underground based on supplied plena. THOMAS E. BAUMGARTNER. IWNOIS LAID SURVEYOR NO. No attempt has been made as part 3142 of this survey to excavate, uncover or LICENSE EXPIRATION 11-30-2012. ('M"p'wy expose those facilities to geld check SITEa A the existence, size, depth. Condition, -' A rrA t capacity or exact location of those Txauw C w.exexal _ futilities. For more Information leg, plea concerning those pri ties, please Said Parcel contains 2.337 acres s• nr * contact me appropriate public (101,778 square feet), more or lees. 5`xy'?.r>c• ILLIF. agencies or utility company. 6'uWunn,nn'0 w•wbtlen Plam°lnmmw""' IT - SQUARE wwuW /areww TERRA PROJECT. M - auwe�r: IT- EVANSTON,IL ENGINEERING LTD. DEegNW. TIES CIECKM Or. 71111 W. Ohio$b••f TEL•(312)•1674123 1 of 1 Ah Fear FAX:(31F)A8'7H3MO ACWC ,IL 60856 vnNw.terrwlpinoaMa.mm Nov C8, 2011 - 9,O9nm 1H\-SURVEY\EIVERSON SQUARE EVANSTON (II-zOq\SURVEY\EMER50NAvg E.-,9