HomeMy WebLinkAboutResidential _ Commercial Lease for 629-631 Howard Street26-0-12
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LEASE AND OPTION AGREEMENT FOR THE PREMISES LOCATED AT 629-631
HOWARD STREET, EVANSTON, ILLINOIS, BY AND BETWEEN THE CITY OF
EVANSTON, LANDLORD AND WARD EIGHT LLC, TENANT
EFFECTIVE DATE OF LEASE: March 15, 2012
TERM OF LEASE: March 15, 2012 THROUGH March 14, 2017
RENTAL RATE:
FROM March 15, 2012 THROUGH March 14, 2013: FREE RENT (Year 1)
FROM March 15, 2013 THROUGH March 14, 2015: $2,000.00/MO (Year 2 - 3)
FROM March 15, 2015 THROUGH March 14, 2016: $2,250.00/MO (Year 4)
FROM March 15, 2016 THROUGH March 14, 2017: $2,500.00/MO (Year 5)
This Lease and Option Agreement (the "Agreement") is executed by and between
The City of Evanston, an Illinois home rule municipality ("Landlord"), whose main
business office is located at 2100 Ridge Avenue, Evanston, Cook County, Illinois, and
Ward Eight LLC, an Illinois limited liability company ("Tenant"), of Chicago, Illinois
(insert Tenant's present address). Landlord and Tenant may be referred to as a "Party"
and collectively as the "Parties".
SECTION 1: DESCRIPTION OF PREMISES
Landlord leases to Tenant the commercial area on the first floor of the property
commonly known as 629-631 Howard Street (the "Premises"), situated within the
Landlord's 3 story mixed use building located at the same common address and legally
described on Exhibit "A" (the "Property"). The Property has two residential units on the
second and third floors and the Premises is the commercial unit on the first floor. The
term "Common Facilities" as used in this lease will include those facilities within the
Premises for the nonexclusive use of Tenant in common with other authorized users,
and includes, but is not limited to, sidewalks, planted areas, and open means of ingress
and egress.
SECTION 2: TERM
The term of this lease will be for five (5 years) and will start on March 15, 2012 —
March 14, 2017. Tenant must provide Landlord with 60 days notice if they choose to
renew the lease of the Premises.
SECTION 3: RENT
A. RATE: Tenant agrees to pay Landlord a monthly rental payment for
the term of this Agreement in accordance with the rental rate schedule outlined on the
first page. The rent is due and payable on the first day of each month.
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B. LATE CHARGES. ANY PAYMENTS FOR RENTAL OR ADDITIONAL
RENTAL NOT PAID WITHIN FIVE (5) DAYS OF THE DUE DATE SHALL INCUR A
LATE PAYMENT OF $10.00 PER DAY UNTIL PAID IN FULL.
C. PAYMENTS shall be mailed to: City of Evanston
Attn: Dept of Administrative Services
2100 Ridge Avenue, Room 4100
Evanston, IL 60201
D. RENT COMMENCEMENT: Tenant's obligation to pay any money
will not commence until the 15t day of the earlier of the completion of the tenant
improvements outlined on Exhibit "B", Site Plan,and a certificate of occupancy is issued
or four months after the Effective Date of this Lease (the "Rent Commencement").
However, the schedule provided on the first page commences on the first date that
Tenant receives all permits, variances and governmental approvals necessary to
construct and operate Tenant's wine bar in the Premises (the "Rent Commencement
Date"). Tenant warrants they will use best efforts to complete construction on the
Tenant Improvements, obtain a business license, obtain a liquor license from the City
of Evanston and the State of Illinois, and open for business within 4 months of the
Effective Date.
SECTION 4: COMMON FACILITIES
A. MAINTENANCE BY LANDLORD: Landlord will maintain in good repair the
common and structural facilities of the Property which shall include but not be limited to
the following:
1. Exterior maintenance, including the foundation, walls, slab, doors and
roof and replacement;
2. A refuse container to be shared by all tenants in the Property;
3. Common electric facilities and the HVAC unit(s);
4. Common water facilities;
5. Fire Alarm inspections for the common facilities and Property; and
6. Hallways, stair rails, and related elements outside of the Premises within
the Property.
B. MAINTENANCE BY TENANT:
1. Snow and ice removal, including salting, from front walkway of Premises
and parking spaces behind the Property within 24 hours of any snow event with
accumulation of an 1 inch or more. Tenant will furnish snow removal equipment
and salt.
2. Premises maintenance and all fixtures and property within the space;
3. All refuse from Premises to be placed in appropriate containers; and
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4. The Tenant will at all times maintain all of the Premises in a clean, neat
and orderly condition. The Tenant will not use the Premises in a manner that
will violate or make void or inoperative any policy of insurance held by the
Landlord.
SECTION 5: SECURITYDEPOSIT
Concurrently with the execution of this Lease, Tenant shall deposit with Landlord
the sum of Two Thousand and 00/100 Dollars ($2,000.00). Said sum shall be held by
Landlord as security for the performance of all terms, covenants and conditions of this
Lease to be performed by Tenant. If Tenant defaults with respect to any provisions of
this lease, Landlord may at her option apply all or any portion of such deposit to
compensate Landlord for any loss or damage it may sustain. Landlord shall not be
required to keep this security deposit separate from its general funds and Tenant shall
not be entitled to any interest on such deposit. At the termination of this Agreement
Landlord shall refund the said security deposit to Tenant. In the event Tenant has
breached any of the terms, covenants and conditions of this Agreement or fails to leave
the premises in substantially the same condition as when Tenant took possession,
normal wear and tear excepted, Landlord shall be entitled to deduct from the security
deposit the amount expended by Landlord for necessary and reasonable repairs
Tenant shall not use the security deposit as the last month's rental payment. The
Landlord shall itemize the deductions from the Security Deposit, if any.
SECTION 6: OPTION TO PURCHASE PROPERTY.
A. GENERAL: Tenant initially is only a Tenant of the Premises which is
owned and managed by Landlord. The Landlord owns the Property, on which the
Premises is located. As such, Tenant's monthly payments are lease and rental
payments. However, under the Landlord's terms of this Agreement, the Tenant has an
option to purchase the Property so long as the Tenant is occupying and leasing the
Property and is otherwise in compliance with Landlord's program rules after the end of
the third year (the "Option"). Tenant must submit written notification to Landlord that it
intends to exercise the Option within 90 days of expiration of the third year, thus notice
must be sent on or before the beginning of the 33`d month of the Lease. If Tenant elects
to NOT exercise the Option prior to the end of the third year of this Agreement, the
following are applicable: (1) the Landlord is freely able to market, enter into a contract,
and sell the Property to another purchaser; (2) Tenant shall remain a Tenant of the
Premises for the remainder of the term of the Agreement; and (3) Tenant shall not have
another option beyond the third year to purchase the Property at the end of the Term.
B. PURCHASE PRICE: The purchase price of this Property will be
$362,650.00 (the "Purchase Price"), which is based on the fair market value and
current appraisal of the Property and the actual cost of tenant improvements (see
Section 8) on the date of exercising the option and corporate authority decision. The
Purchase Price is based on the amount of the original purchase price that the City paid
for the property ($237,650.00), the CDBG funds anticipated to be used for the
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renovation of the residential units ($40,000.00), and part of the estimated Tenant
Improvement Allowance (defined supra).
C. CASH USED ALONE TO PURCHASE: The Tenant may notify Landlord
that they have the resources to purchase the Property and that the Tenant is exercising
the Option prior to the expiration of the Agreement. A closing or transfer of ownership
will occur upon the Tenant paying the purchase price and the Parties execution of a
purchase and sale contract ("Property Purchase Agreement').
D. RENTAL CREDITS USED TO PURCHASE: Credit will NOT be given
for residential rent payments, made to Landlord pursuant to the Lease Agreement
between Landlord and Anne Carlson and Cody Modeer, for the Option. The Landlord
will only give credit towards the purchase price for rent payments made under this
agreement for the lease of the Premises subject to this Agreement (the "Rental
Credit").
E. CASH AND RENTAL CREDIT USED TO PURCHASE: The Tenant may
notify Landlord that they will be exercising the Option to Purchase and that they wish to
use the Rental Credit and have the resources to supplement those credits to purchase
the Property. A closing and transfer of ownership will occur upon the Tenant paying the
difference between the rental credit and the purchase price.
F. DELINQUENCIES: Should the Tenant have incurred delinquencies with
Landlord, the Tenant will be required to payoff those delinquencies upon any offer to
exercise its Option.
G. TENANT BREACH: Should the Tenant breach this Agreement for any
reason other than nonpayment, at the discretion of Landlord, the Tenant's Option may
be denied.
H. LANDLORD REPORTING: So long as Tenant is leasing the Premises,
Landlord shall provide at the Tenant's request, approximately every year, a written
accounting of the rent paid on the Premises, any delinquencies owing, and the Property
purchase price. However, except for the above, Landlord is not obligated to advise the
Tenant when the Rental Credit equals or exceeds the purchase price.
I. PROPERTY SOLD: If the Property is purchased by the Tenant, the
maximum interest that Landlord has in the land and structures in accordance with the
Property PIN as indicated on Exhibit "A", and will be transferred pursuant to the
Property Purchase Agreement.
J. NO OBLIGATION TO PURCHASE THE PROPERTY: A Tenant is under
no obligation to purchase the Property and has the right to continue under the terms of
this Agreement as Tenant/renter. However, if the Tenant fails to exercise his or her
option at the conclusion of this Agreement, the Option to Purchase shall expire.
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K. NO LANDLORD RESPONSIBILITY AFTER PURCHASE: Upon sale to
Tenant pursuant to this Agreement, the Tenant shall become solely responsible for the
Property.
SECTION 7: USE OF PREMISES
A. PURPOSES: Tenant will use the Premises to operate a wine bar and sell
alcohol products and transaction of other related business and uses incidental thereto,
and no part of the Premises will be used for any other purpose without the prior written
consent of Landlord. The use of the premises will be in conformance with the
restrictions set forth in the Class S Liquor License granted to the Tenant's by the City of
Evanston corporate authorities. Prior to the issuance of a business license, the Tenant
shall submit copies of final lien waivers to Landlord from Tenant's contractors and
subcontractors for the tenant improvements.
B. BUSINESS HOURS: Tenant will operate the Premises and be open for
business at the discretion of the Tenant. When Tenant is open for business, Tenant will
provide adequate personnel to service its customers. However, if Tenant is unable to
comply with this provision due to shortage of materials, act of God, and destruction of
the premises by fire or other reason beyond Tenant's control (financial inability of
Tenant accepted), Tenant will not be deemed to be in default.
C. STORAGE OF MERCHANDISE: Tenant agrees to store on the Premises
only goods, wares and merchandise Tenant intends to offer for retail sale from the
Premises or use in connection with the service offered by Tenant in regular course of
the named Tenant's business. Tenant agrees to use for office or clerical purposes only
that space as is reasonably required for Tenant's business. In the basement of the
Property, storage lockers are available for the tenants to the Property. For the
Premises, Tenant shall be entitled to the use of one (1) storage locker. Tenant shall be
responsible for providing a lock for the storage locker. Landlord is not responsible for
any lost or stolen items from the storage locker.
D. STORAGE OF INFLAMMABLE MATERIALS: Tenant agrees that it will not
permit to be kept at the Premises any gasoline, distillate or other petroleum product, or
other substance of an explosive or inflammable nature as may endanger any part of the
premises without the written consent of the Landlord.
E. USE IMPAIRING STRUCTURAL STRENGTH: The Tenant will not permit the
Premises to be used in any manner that will impair the structural strength of the store
building, or permit the installment of any machinery or apparatus the weight or vibration
of which may tend to impair the building's foundations or structural strength.
F. GARBAGE DISPOSAL: The Tenant will not incinerate any garbage or debris
in or about the Premises, and will cause all containers, rubbish, garbage and debris
stored in the Premises to be hauled away for disposal before accumulation of any
substantial quantity.
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G. PUBLIC REGULATIONS: In the conduct of its business on the Premises,
Tenant will observe and comply with all laws, ordinances and regulations of public
authorities. Tenant acknowledges that the Property is owned by the City of Evanston
and therefore no smoking will be permitted at the Property.
H. OTHER MISUSE: Tenant will not permit any unlawful or immoral practice with
or without his knowledge or consent, to be committed or carried on in the Premises by
Tenant or any other person. Tenant will not use or allow the use of the Premises for
any purpose whatsoever that will injure the reputation of the Premises or of the building
of which they are a part.
1. PARKING: Tenant shall not be entitled to a parking spot in the back of the
Property as part of this Lease Agreement. As stated in the Residential Lease, the
Tenant is entitled to one (1) parking spot for the residential leased premises.
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A. FINANCING STATEMENT: The City will record a Uniform Commercial
Code ("UCC") Financing Statement against the Property for the fixtures, business
equipment, and other personal property to be installed at the property pursuant to the
site plan (the "Site Plan"). The Financing Statement will secure the Landlord's loan, as
detailed in Section 9 to Tenant for the improvements to the Premises. The Tenant will
also be required to execute a security agreement which details the terms and
conditions that the Landlord can lien the fixtures, business equipment, and personal
property (the "Security Agreement"). The terms and conditions of the Security
Agreement shall be incorporated into the Lease herein by reference.
B. INSTALLATION OF EXTERIOR LIGHTING AND FIXTURES: Tenant will
not install any exterior lighting, exterior plumbing facilities, shades or awnings,
amplifiers, or similar devices, or use any advertising medium that may be heard outside
the Premises, such as loudspeakers, or radio broadcasts, without Landlord's prior
written consent.
C. IMPROVEMENT INSTALLATION AND ALLOWANCE:
1. Improvement Allowance: Landlord shall provide Tenant with an
improvement allowance to renovate the Property in the principal amount of
no greater than $100,000.00, the final amount to be determined based on
the architecture drawings, scope of work, and cost projections (the "Tenant
Improvement Allowance'). The Tenant Improvement Allowance shall be
approved by the City Manager prior to any construction. This
Improvement Allowance shall NOT be paid out directly to the Tenant and
not be funded until: (a) City of Evanston Council has approved the
Agreement; (b) the Agreement is executed; and (c) Final improvement
plans attached as Exhibit "B" are accepted by both Parties. The Landlord,
as administrator of the grant, shall pay the contractors for the
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improvements directly in accordance with a separate TIF Grant
Agreement, the terms of which are incorporated herein by reference. The
Improvement Allowance is funded through the Howard -Ridge Tax
Increment Financing (TIF) District.
2. Construction of Improvements: The Tenant shall contract for the
construction of the improvements. The improvements shall be in
substantial conformance with the attached plans on Exhibit "B" (the
"Tenant Improvements"). Any variation from the plans shall be first
approved by the Landlord. Landlord shall not unreasonably withhold its
consent for approval of the revised plans.
D. Subject to the improvements provided on Exhibit "B", Tenant shall not
attach, affix or exhibit or permit to be attached, affixed or exhibited, except by Landlord
or his agent, any articles of permanent character or any sign, attached or detached with
any writing or printing thereon, to any window, floor, ceiling, door or wall in any place in
or about the Premises, or upon any of the appurtenances thereto, without in each case
the written consent of the Landlord; and shall not commit or suffer any waste in or
about said Premises; and shall make no changes or alterations in the Premises by the
erection of partitions or the papering of walls or otherwise, without the consent in
writing of Landlord; and in case Tenant shall affix additional locks or bolts on doors or
window, or shall place in the Premises lighting fixtures or any fixtures of any kind
without the consent of the Landlord first had and obtained such locks, bolts and fixtures
shall remain for the benefit of Landlord, and without expense of removal or
maintenance to Landlord.
SECTION 9: CDBG LOAN TO TENANT. The City shall provide a 10-year
loan to the Tenant in the principal amount of up to $130,000.00 (One Hundred Thirty
Thousand and no/100 Dollars), together with interest on the unpaid principal balance
from August 15, 2012, until paid in full. Borrower (Tenant) will pay this loan in 120
regular payments of $1,316.19 each. The loan shall be repaid at the earlier of the
following two dates: (1) after the date of termination of this Lease, without the Tenant
exercising its option to purchase; or (2) at the conclusion of the 120th month. The loan
terms are more specifically provided in the promissory note to evidence the
indebtedness (the "Note"). The Note will be secured by the fixtures and personal
property to which the City will be filing a UCC Financing Statement, as provided in
Section 8. Additionally, the CDBG Loan shall be administered in accordance with the
guidelines and requirements provided in a project agreement between the City and its
Borrower (the "Project Agreement"). The Project Agreement and Note terms shall be
incorporated into the Lease herein by reference.
SECTION 10: SIGNS: Tenant will have the exclusive right to maintain on the
exterior and interior of the Premises, at its own expense, all signs necessary to conduct
the business of Tenant. Tenant acknowledges that there are limitations from the City of
Evanston's Municipal Code for the sign size, type, and number and Tenant agrees to be
bound by such laws and ordinances.
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SECTION 11: DEFECTS; DEFECTIVE CONDITION; WIND; ACTS OF THIRD
PERSONS: Except as provided by Illinois law, Landlord will not be liable to Tenant for
any damage or injury to Tenant or Tenant's property occasioned by the failure of
Landlord to keep the Premises in repair, and shall not be liable for any injury done or
occasioned by wind or by or from any defect of plumbing, electric wiring or of insulation
thereof, gas pipes, water pipes or steam pipes, or from broken stairs, porches, railings
or walks, or from the backing up of any sewer pipe or down -spout or from the bursting,
leaking or running of any tank, tub, washstand, water closet or waste pipe, drain, or any
other pipe or tank in, upon or about the Premises or the building of which they are a
part nor from the escape of steam or hot water from any radiator, it being agreed that
said radiators are under the control of Tenant, nor for any such damage or injury
occasioned by water, snow or ice being upon or coming through the roof, skylight, trap
door, stairs, walks or any other place upon or near the Premises, or otherwise, nor for
any such damage or injury done or occasioned by the falling of any fixture, plaster, or
stucco, nor for any damage or injury arising from any act, omission or negligence or co-
tenants or of other persons, occupants of the same building or of adjoining or
contiguous buildings or of owners of adjacent or contiguous property, or of Landlord's
agents or Landlord, all claims for any such damage or injury being hereby expressly
waived by Tenant.
SECTION 12: CASUALTY DAMAGE; REPAIRS; ABATEMENT OF RENT
A. USE OF PARTIALLY DAMAGED PREMISES: On damage or destruction to the
Premises, Tenant will continue to use them for the operation of its business to the
extent practicable.
B. RIGHT TO TERMINATE ON DESTRUCTION OF TWO-THIRDS OF PREMISES:
Either Party will have the right to terminate this Agreement if, during the last year of the
term, the Premises is damaged to an extent exceeding two-thirds of the reconstruction
cost of the Premises as a whole. On termination, this Agreement will be affected by
written notice to the other Party, delivered within ten days of the damage.
C. REPAIRS BY LANDLORD: If the Premises are damaged or destroyed before or
after the start of the Agreement by any cause beyond Tenant's control, then Landlord
will immediately, on receipt of insurance proceeds paid in connection with casualty
damage, but no later than sixty days after damage has occurred, proceed to repair the
premises. Repairs will include any improvements made by Landlord or by Tenant with
Landlord's consent, on the same plan and design as existed immediately before the
damage occurred, subject to those delays reasonably attributable to governmental
restrictions or failure to obtain materials, labor or other causes, whether similar or
dissimilar, beyond the control of Landlord. Materials used in repair will be as nearly like
original materials as reasonably procured in regular channels of supply. Wherever
cause beyond the power of the party affected causes delay, the period of delay will be
added to the period in this lease for completion of the work, reconstruction or
replacement.
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D. REDUCTION OF RENT DURING REPAIRS: If Tenant continues to conduct
business during the making of repairs, the fixed minimum monthly rental will be
equitably reduced in the proportion that the unusable part of the premises bears to the
whole. The determination of the unusable space shall be determined by the Landlord
based on square footage. No rent will be payable while the store building is wholly
unoccupied pending the repair of casualty damage.
SECTION 13: REPAIRS AND MAINTENANCE
Tenant shall keep the Premises and appurtenances thereto in a clean condition,
and in good repair, all according to the statutes and ordinances in such cases made
and provided, and the directions of public officers thereunto duly authorized, all at
Tenant's own expense, and shall yield the same back to Landlord, upon the termination
of this Agreement, whether such termination shall occur by expiration of the term, or in
any other manner whatsoever, in the same condition of cleanliness, repair and
sightlines as at the date of the execution hereof, loss by fire and reasonable wear and
tear excepted. Tenant shall make all necessary repairs and renewals upon Premises
and replace broken globes, glass and fixtures with material of the same size and
quality as that broken and shall insure all glass in windows and doors of the Premises
at his own expense. If, however, the Premises shall not thus be kept in good repair
and in a clean, and healthy condition by Tenant, as aforesaid, Landlord may enter the
same, or by Landlord's agents, servants or employees, without such entering causing
or constituting a termination of this Agreement or an interference with the possession of
the Premises by Tenant, and Landlord may replace the same in the same condition of
repair, sightlines, healthiness and cleanliness as existed at the date of execution
hereof, and Tenant agrees to pay Landlord, in addition to the rent hereby reserved, the
expenses of Landlord in thus replacing the Premises in that condition. Tenant shall not
cause or permit any waste, misuse or neglect of the water, or of the water, gas or
electric fixtures.
Tenant will, at Tenant's expense, maintain all of the demised Premises, including
but not limited to, store fronts, bulk -heads, exterior entry and exit doors, ornamental
facing, plate glass and glazing on the demised Premises, in good condition and repair.
Tenant will also be in compliance with all laws and regulations during the entire term of
this Agreement, except for repairs required of the Landlord to be made and damage
occasioned by fire, hurricane or other causes as provided for in this Agreement.
SECTION 14: UTILITIES
Tenant agrees to pay before delinquency all charges for gas, water, heat,
electricity, power and other similar charges incurred by Tenant during its occupancy of
the Premises.
SECTION 15: TAXES
Tenant will pay before delinquency all taxes levied on Tenant's fixtures,
equipment and personal property on the demised Premises, whether or not affixed to
the real property. Landlord will prorate the real estate taxes for the Property based on
the proportionate share of the square footage of the Premises (the "Premises Real
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Estate Taxes"), which is equal to thirty three percent (33%). The Landlord will invoice
the Tenant for the Premises Real Estate Taxes and payment must be received within 30
days of the date of the invoice. The amount of the Real Estate Taxes owed will
fluctuate based on Cook County assessments.
SECTION 16: INSURANCE
A. INSURANCE COMPANIES: It is agreed that any policies of insurance to be
maintained by the respective parties will be obtained from good and solvent insurance
companies.
B. TENANT TO OBTAIN LIABILITY INSURANCE: Tenant agrees that it will, at
its expense, maintain a policy of insurance, written by responsible insurance carriers,
approved by Landlord that will insure Landlord against liability for injury to or death of
persons or damage to property occurring about the demised Premises. The liability
under insurance will be at least 1 million for any one person injured or killed or any one
occurrence, $2 million general aggregate coverage for any one accident, and
100,000.00 property damage.
C. TENANT TO OBTAIN WORKER'S COMPENSATION INSURANCE: Tenant
agrees to maintain employees' Worker's Compensation insurance required under Illinois
law, and any other insurance necessary to protect Landlord against liability to person or
property.
D. TENANT TO OBTAIN FIRE INSURANCE ON FIXTURES AND
INVENTORY: The Tenant agrees to maintain on all equipment in the Premises, a policy
of fire insurance in companies approved by the Landlord of at least 80 % of the
insurable replacement value. Tenant also will maintain adequate inventory insurance,
the proceeds of which will, as long as this Agreement is in effect, be used for the
replacement of the insured property. The policy will name Landlord as additional
beneficiary to protect Landlord's interest as Landlord.
E. LANDLORD TO OBTAIN FIRE INSURANCE ON PREMISES: Landlord
agrees to maintain during this Agreement, a policy fire insurance of at least 80 % of
the insurable value of the Premises. If permitted without additional charge, Landlord will
cause to be endorsed on its fire insurance, and any extended coverage policy or
policies, the waiver of right of subrogation.
F. TENANT'S WAIVER OF CASUALTY INSURANCE PROCEEDS: If the
Premises are damaged by fire or other casualty insured against, Tenant agrees to claim
no interest in any insurance settlement arising out of any loss where premiums are paid
by Landlord, or where Landlord is named as sole beneficiary, and that it will sign all
documents required by Landlord or the insurance company necessary in connection
with the settlement of any loss.
G. CONTROL OF INSURANCE PROCEEDS TO AVOID TAXABLE GAIN: If
the Premises, including any improvements, were to be damaged in any manner, and the
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receipt of any insurance proceeds or other reimbursement for such damage would
result in the realization of taxable gain for federal or state purposes, then the party to
whom the gain would be taxed will have the right to take all action respecting proceeds
or reimbursements necessary to enable party to comply with any regulations of the
appropriate taxing authorities, so that the gain will not be recognized for tax purposes.
Nothing here will be construed to entitle Landlord to delay any repairs to any part of the
improvements in the event of damage.
H. TENANT'S FAILURE TO INSURE: Should Tenant fail to keep in effect and
pay for insurance as required by this section, the Landlord may do so.
SECTION 17: SUBLETTING; ASSIGNMENT
The Premises shall not be sublet in whole or in part to any person other than
Tenant, and.Tenant shall not assign this Agreement to any person or corporate entity,
unless directly affiliated with a corporate entity of Tenant. If Tenant, or any one or more
of the Tenants, if there be more than one, shall make an assignment for the benefit of
creditors, or shall be adjudged a bankrupt, Landlord may terminate this Agreement, and
in such event Tenant shall at once pay Landlord a sum of money equal to the entire
amount of rent reserved by this Agreement for the then unexpired portion of the term
hereby created as liquidated damages. At Landlord's option, should Landlord consent
to any assignment or sublease of the demised Premises, Tenant shall nevertheless
remain liable for all terms and conditions of this Agreement until the expiration of the
Agreement term stated above.
SECTION 18: SURRENDER OF PREMISES — HOLDING OVER
Subject to the Option to Purchase language, Tenant will, at the termination of this
Lease, leave the Premises in as good condition as they are in at the time of entry by
Tenant, except for reasonable use and wear, acts of God, or damage by casualty
beyond the control of Tenant. On vacating, Tenant will leave the Premises clear of all
rubbish and debris. If Tenant retains possession of the Premises or any part thereof
after the termination of the term by lapse of time or otherwise, then Landlord may at its
option within thirty days after termination of the term serve written notice upon Tenant
that such holding over constitutes the creation of a month to month tenancy, upon the
terms of this Agreement. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant. The provisions of this
paragraph shall not constitute a waiver by Landlord of any right of re-entry as
hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmation
of tenancy operate as a waiver of the right to terminate this Agreement for a breach of
any of the covenants herein.
SECTION 19: INDEMNIFICATION AND LIENS
A. LIENS AND ENCUMBRANCES: The Tenant will hold the Landlord harmless
from all claims, liens, claims of lien, demands, charges, encumbrances or litigation
arising out of any work or activity of Tenant on the Premises. Tenant will, within sixty
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(60) days after filing of any lien, fully pay and satisfy the lien and reimburse Landlord for
all resulting loss and expense, including a reasonable attorney's fees. Provided,
however, in the event that Tenant contests any lien so filed in good faith and pursues an
active defense of said lien, Tenant shall not be in default of this paragraph. However, in
the event of any final judgment against Tenant regarding such lien, Tenant agrees to
pay such judgment and satisfy such lien within 60 days of the entry of any such
judgment.
B. DISCHARGE OF LIEN: If Tenant fails to fully discharge any claim, lien, claim
of lien, demand, charge, encumbrance, or litigation, or should proceedings be instituted
for the foreclosure of any lien or encumbrance, and if judgment is rendered against
Tenant either by a court of competent jurisdiction or by arbitration and Tenant still
persists in non-payment of the same within the 60 day set forth above, Landlord will
have the right at any time after expiration of the 60-day period, to pay the lien or
encumbrance. All amounts so paid will be repaid by the Tenant on demand, together
with interest at the rate of _10_%o per year from the date of payment and shall be
considered additional rent owed to Landlord by Tenant.
C. INDEMNIFICATION OF LANDLORD: Except as otherwise provided in this
Agreement, Tenant shall protect, indemnify and save Landlord and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or damage to property on the Premises, arising out of or in connection with Tenant's use
or occupancy of the Premises or Tenant's activities on the Premises, or contracts
entered into for work on the Premises, or arising from any negligent or willful act of
Tenant. Tenant shall pay for all of Landlord's costs of suit and attorneys fees and
expenses.
D. INDEMNIFICATION OF TENANT. Except as otherwise provided in this
Agreement, Landlord shall protect, indemnify and save Tenant and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or damage to property on the Premises, arising out of or in connection with Landlord's
negligent act or omission or willful misconduct. Landlord shall pay for all of Tenant's
costs of suit and attorneys fees and expenses.
SECTION 20: LANDLORD'S RIGHT OF INSPECTION AND REPAIRS
Tenant shall allow Landlord or any person authorized by Landlord reasonable
access to the Premises during regular business hours for the purpose of examining or
exhibiting the same, or to make any repairs or alterations thereof which Landlord may
see fit to make. If the Tenant does not exercise the Option and/or will be vacating the
Premises at or prior to the end of the Term, Tenant will also allow Landlord to have
placed upon the Premises at all times notices of "For Sale" and "For Rent", and Tenant
will not interfere with the same.
SECTION 21: DEFAULT AND REMEDIES
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MMINK
A. EVENT OF DEFAULT: Any one of the following events shall be deemed to be
an event of default hereunder by Tenant subject to Tenant's right to cure:
(1) Tenant shall fail to pay within five (5) days, any item of Base Rent
at the time and place when and where due;
(2) Tenant shall fail to maintain the insurance coverage as set forth
herein;
(3) Tenant shall fail to comply with any term, provision, condition or
covenant of this Lease, other than the payment of rent, and shall not cure,
or commence the good faith cure of any such failure, within fifteen (15)
days after written notice to the Tenant of such failure;
(4) Tenant shall make a general assignment the benefit of creditors, or
shall admit in writing its inability to pay its debts as they become due or
shall file a petition in bankruptcy; or
(5) Any default by Tenant under the terms of the Note, Project
Agreement, or Security Agreement.
B. OCCURRENCE OF AN EVENT: Upon the occurrence of any event of
default, Landlord shall have the option to pursue any one or more of the following
remedies subject to the laws of the State of Illinois and the Tenants right to cure:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, but if Tenant fails to do so, Landlord
may, without further notice and without prejudice to any other remedy
Landlord may have for possession or arrearages in rent or damages for
breach of contract, enter upon the Premises and expel or remove and with
or without notice of such election or any notice or demand whatsoever,
this Agreement shall thereupon terminate and upon the termination of
Tenant's right of possession, as aforesaid, whether this Agreement be
terminated or not, Tenant agrees to surrender possession of the Premises
immediately, without the receipt of any demand for rent, notice to quit or
demand for possession of the Premises whatsoever and hereby grants to
Landlord full and free license to enter into and upon the Premises or any
part thereof, to take possession thereof with or (to the extent permitted by
law) without process of law, and to expel and to remove Tenant or any
other person who may be occupying the Premises or any part thereof, and
Landlord may use such force in and about expelling and removing Tenant
and other persons as may reasonably be necessary, and Landlord may
re -possess herself of the Premises as of her former estate, but such entry
of the Premises shall not constitute a trespass or forcible entry or detainer,
nor shall it cause a forfeiture of rents due by virtue thereof, nor a waiver of
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any covenant, agreement or promise in this Agreement contained to be
performed by Tenant. Tenant and its effects, without being liable to
prosecution or any claim for damages therefor; and Tenant agrees to
indemnify Landlord for all loss and damage which Landlord may suffer by
reason of such lease termination, whether through inability to re -let the
Premises, or through decrease in Rent, or otherwise.
(2) Landlord may recover from Tenant upon demand all of Landlord's
costs, charges and expenses, including the fees and costs of counsel,
agents and others retained by Landlord which have been incurred by
Landlord in enforcing Tenant's obligations hereunder, subject to Landlord
prevailing on its claims.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of any
other remedy herein provided or available to Landlord at law or in equity, or
constitute a forfeiture or waiver of any Rent due hereunder or of any damages
suffered by Landlord.
C. REPOSSESSION OR RELETTING NOT A TERMINATION; LANDLORD'S
RIGHT TO TERMINATE NOT FORFEITED: No repossession, operation or re -letting of
the Premises or of fixtures and equipment will be construed as an election by Landlord
to terminate this Agreement unless a written notice is given by the Landlord to the
Tenant. The Landlord may terminate this Agreement if the Tenant remains in default.
The acceptance of rent, whether in a single instance or repeatedly, after it falls due, or
after knowledge of any breach hereof by Tenant, or the giving or making of any notice
or demand, whether according to any statutory provision or not, or any act or series of
acts except written waiver, shall not be construed as a waiver of Landlord's rights to act
without notice or demand or of any other right hereby given Landlord, or as an election
not to proceed under the provisions of this Agreement.
D. TENANT'S OBLIGATION TO PAY DEFICIENCIES: If rentals received by the
Landlord from re -letting the Premises under the provisions of this section are insufficient
to pay all expenses and amounts due, Tenant will pay any deficiencies to the Landlord
on demand and be declared in default for failure to pay.
E. LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES AT TENANT'S
COST: If in Landlord's judgment any default by Tenant will jeopardize the Premises or
the rights of Landlord, Landlord may, without notice, elect to cure Tenant's default and
Tenant will reimburse Landlord, with interest, on 10-days' notice by Landlord to Tenant.
F. LANDLORD'S RIGHT TO TERMINATE AGREEMENT: If Tenant defaults as
stated in Paragraph A of this section, Landlord may, without further notice, terminate
this Agreement and all interest of Tenant and may take possession of the Premises by
legal proceedings.
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G. LANDLORD'S RIGHT ON TERMINATION TO RECOVER AMOUNT EQUAL
TO RENT RESERVED: If this Agreement is terminated by Landlord due to any default
by Tenant, Landlord will be entitled to recover from Tenant, at termination, the excess, if
any, of the rent reserved in this Agreement for the balance of the term over the
reasonable rental value of the Premises for the same period. The "reasonable rental
value" will be the amount of rental Landlord can obtain as rent for the balance of the
term.
H. LANDLORD'S REMEDIES CUMULATIVE: All of the remedies given to
Landlord in this Agreement or by law are cumulative, and the exercise of one remedy by
the Landlord will not impair its right to exercise any other right or remedy.
SECTION 22: INTENTIONALLY DELETED.
SECTION 23: REMOVAL OF OTHER LIENS
In event any lien upon Landlord's title results from any act or neglect of Tenant
and Tenant fails to remove said lien within ten days after Landlord's notice to do so,
Landlord may remove the lien by paying the full amount thereof or otherwise and
without any investigation or contest of the validity thereof and Tenant shall pay Landlord
upon request the amount paid out by Landlord in such behalf, including Landlord's
costs, expenses and reasonable attorney's fees. If Tenant demonstrates to Landlord
that Tenant is contesting the validity of said lien in good faith, then Landlord shall allow
Tenant to so contest such lien until either Tenant either abandons such contest or a
final verdict is reached in a court of competent jurisdiction. Any amount advanced on
behalf of Tenant shall be paid to Landlord by Tenant within 30 days after such
advancement is made together with interest at 9% per annum and such amount shall be
considered additional rentals.
SECTION 24: REMEDIES NOT EXCLUSIVE
The obligation of Tenant to pay the rent reserved hereby during the balance of
the term hereof, or during any extension hereof, shall not be deemed to be waived,
released or terminated, by the service of any five-day notice, other notice to collect,
demand for possession, or notice that the tenancy hereby created will be terminated on
the date therein named, the institution of any action of forcible detainer or ejectment or
any judgment for possession that may be rendered in such action, or any other act or
acts resulting in the termination of Tenant's right to possession of the Premises. The
Landlord may collect and receive any rent due from Tenant and payment or receipt
thereof shall not waive or affect any such notice, demand, suit or judgment, or in any
manner whatsoever waive, affect, change, modify or alter any rights or remedies which
Landlord may have by virtue hereof.
SECTION 25: EXPENSES OF ENFORCEMENT
Tenant, if Landlord is the prevailing party, shall pay upon demand all Landlord's
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Landlord, incurred in enforcing any of the obligations of
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Tenant under this Agreement, or in any litigation, negotiation or transaction in which
Landlord shall, without Landlord's fault become involved through or on account of any
action or omission of Tenant regarding this Agreement.
Landlord, if Tenant is the prevailing party, shall pay upon demand all Tenant's
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Tenant, incurred in enforcing any of the obligations of
Landlord under this Agreement, or in any litigation, negotiation or transaction in which
Tenant shall, without Tenant's fault become involved through or on account of any
action or omission of Landlord regarding this Agreement.
SECTION 26: EMINENT DOMAIN
A. MORE THAN 30 PERCENT TAKEN: If 30 percent or more of the Premises
are taken for a public or quasi -public use, this lease will terminate as of the date of the
physical taking, and the Parties will be released from all further liability.
B. LESS THAN 30 PERCENT TAKEN: If the taking affects less than 30 percent
of the Premises, the Landlord will, with reasonable diligence, proceed at Landlord's
expense to repair the Premises and place them in tenantable condition within 120 days
after the date of the actual physical taking. However, if 25% percent or more of the
Premises as a whole is taken, the Landlord may elect to terminate this Agreement,
notwithstanding that less than 30 percent of the Premises were taken. On termination,
the parties will be released from all further liability under this Agreement.
C. ABATEMENT OF RENT: During any repair, Tenant will be required to pay
only that part of the fixed minimum monthly rental as the area of the tenantable
Premises remaining during repairs bears to the entire area leased. On completion of
repairs, the fixed minimum monthly rental will be adjusted in proportion to the repaired
area, and Tenant will be required to pay the adjusted fixed minimum monthly rental in
accordance this Agreement. There will be no abatement of any rent once physical
possession is taken of part of the Premises. The method of computing the percentage
rental will not change, and there will be no reduction of percentage rental.
D. RIGHT TO CONDEMNATION AWARD: Any award made in any
condemnation proceeding for the taking of any part of the Premises will be the sole
property of Landlord.
SECTION 27: GOVERNMENTAL INTERFERENCE WITH POSSESSION
Tenant will not be released from its obligation should its possession of the
Premises be interfered with by adoption of any law, ordinance, resolution, regulation or
act of any legal or governmental authority. Further, Tenant will not be released by any
order of abatement or judgment preventing use of the premises on the ground that the
Premises or the business operated there constitutes a legally recognized nuisance.
SECTION 28: PEACEFUL ENJOYMENT
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Landlord covenants and warrants that, subject to any trust deeds or mortgages of
record, it is the owner of the Property and Premises, and that Tenant, on payment of
rents and performance of the conditions, covenants, and agreements to be performed
by it, may enjoy the Premises without interruption or disturbance.
SECTION 29: EFFECT OF WAIVER OF BREACH OF COVENANTS
No waiver of any breach of any condition of this Agreement will be construed to
be a waiver of any other breach of provision, covenant or condition.
SECTION 30: TIME OF THE ESSENCE
Time is of the essence.
SECTION 31: AMENDMENTS TO BE IN WRITING
This Agreement may be modified or amended only in writing signed by Landlord
and Tenant. It may not be amended or modified by oral agreements between the
Parties unless they are in writing duly executed by Landlord and Tenant.
SECTION 32: PARTIES BOUND
Every provision of this Agreement will bind the parties and their legal
representatives. The term "legal representatives" is used in its broadest meaning and
includes, in addition to executors and administrators, every person, partnership,
corporation or association succeeding to any interest in this Agreement. Every
covenant, agreement and condition of this Agreement will be binding on Tenant's
assignees, subtenants, concessionaires and/or licensees, heirs, administrators and
executors.
SECTION 33: NOTICES
All notices or demands that Landlord may need to serve under this Agreement
may be served on Tenant (as an alternative to personal service) by mailing a copy by
registered or certified mail to the following addresses for the parties:
City of Evanston
Attn: W. Grant Farrar, Corporation Counsel
2100 Ridge Avenue, Rm 4400
Evanston, IL 60201
Cody Modeer and Anne Carlson
631 Howard Street, Unit 2
Evanston, IL 60202
Service will be deemed complete at the time of the leaving of notice or within 2
days after mailing. All notices or demands from Tenant to Landlord may be served on
Landlord at the address where rent is being paid, or at any other address Landlord may
in writing designate to Tenant. In the event that it appears that Tenant is avoiding the
service of any notice and is not present at the Premises for a period of more than 14
—20—
consecutive days, notices may be served by posting such notice upon the Premises.
Notice shall than be deemed effective 5 days after such posting.
SECTION 34: MISCELLANEOUS
Provisions typed on this Agreement and all riders attached to this Agreement and
signed by Landlord and Tenant are hereby made a part of this Agreement. (b) Tenant
shall keep and observe such reasonable rules and regulations now or hereafter required
by Landlord, which may be necessary for the proper and orderly care of the building of
which the Premises are a part. (c) All covenants, promises, representations and
agreements herein contained shall be binding upon, apply and inure to the benefit of
Landlord and Tenant and their respective heirs, legal representatives, successors and
assigns. (d) the rights and remedies hereby created are cumulative and the use of one
remedy shall not be taken to excuse or waive the right to the use of another. (e) The
words "Landlord" and "Tenant" wherever used in this Agreement shall be construed to
mean Landlords or Tenants in all cases where there is more than one Landlord or
Tenant herein; and the necessary grammatical changes shall be assumed in each case
as though full expressed. (f) This Agreement and any written and signed Amendments
and/or Riders hereto shall constitute the entire agreement between the parties, and any
oral representations made by one party to the other are considered merged herein. (g)
In all cases where Landlord's consent is required, Landlord's consent shall not be
unreasonably withheld. (h) This Agreement may be executed in multiple copies, each of
which shall constitute an original.
SECTION35: VENUE AND JURISDICTION
The Parties agree the this Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois and that venue for any disputes shall be
in the Circuit Court of Cook County, Illinois.
[Signatures on following page]
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IN WITNESS WHEREOF, both of said Landlord and Tenant have caused this
Agreement to be executed as of the date and year first above written by a duly
authorized officer or manager of each of the respective parties.
Landlord: THE CITY OF EVANSTON,
an Illinois home rule municipal corporation
By: IN� /K"
Its: City Manager, Wally Bobkiewicz
Tenant: WARD EIGHT LLC,
an Illi is li
limited liability company
Its: Manager,
\Ann n
By:
Its: Manager, Cody Modeer
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26-0-12
EXHIBIT "A"
LEGAL DESCRIPTION
LOT 6 AND THE EAST 0.62 FEET OF LOT 5 IN BLOCK 1 IN NILES HOWARD
TERMINAL ADDITIONAL, BEING A SUBDIVISION OF THE SOUTH 6.25 CHAINS (412
% FEET) OF THAT PART OF THE NORTHEAST % OF SECTION 30, TOWNSHIP 41
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING WEST OF
THE RIGHT OF WAY OF THE CHICAGO AND NORTH WESTERN RAILROAD IN
COOK COUNTY, ILLINOIS.
Real property address: 629-631 Howard Street, Evanston, Illinois, 60202
PIN:11-30-209-024-0000
—23—
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EXHIBIT "B"
PREMISES IMPROVEMENTS - SITE PLAN
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26-0-12
EXHIBIT A
LEASE AND OPTION AGREEMENT FOR THE PREMISES LOCATED AT 629-631
HOWARD STREET, EVANSTON, ILLINOIS, BY AND BETWEEN THE CITY OF
EVANSTON, LANDLORD AND WARD EIGHT LLC, TENANT
EFFECTIVE DATE OF LEASE: March 15, 2012
TERM OF LEASE: March 15, 2012 THROUGH March 14, 2017
RENTAL RATE:
FROM March 15, 2012 THROUGH March 14, 2013: FREE RENT (Year 1)
FROM March 15, 2013 THROUGH March 14, 2015: $2,000.00/MO (Year 2 - 3)
FROM March 15, 2015 THROUGH March 14, 2016: $2,250.00/MO (Year 4)
FROM March 15, 2016 THROUGH March 14, 2017: $2,500.00/MO (Year 5)
This Lease and Option Agreement (the "Agreement") is executed by and between
The City of Evanston, an Illinois home rule municipality ("Landlord"), whose main
business office is located at 2100 Ridge Avenue, Evanston, Cook County, Illinois, and
Ward Eight LLC, an Illinois limited liability company ("Tenant"), of Chicago, Illinois
(insert Tenant's present address). Landlord and Tenant may be referred to as a "Party"
and collectively as the "Parties".
SECTION 1: DESCRIPTION OF PREMISES
Landlord leases to Tenant the commercial area on the first floor of the property
commonly known as 629-631 Howard Street (the "Premises"), situated within the
Landlord's 3 story mixed use building located at the same common address and legally
described on Exhibit "A" (the "Property"). The Property has two residential units on the
second and third floors and the Premises is the commercial unit on the first floor. The
term "Common Facilities" as used in this lease will include those facilities within the
Premises for the nonexclusive use of Tenant in common with other authorized users,
and includes, but is not limited to, sidewalks, planted areas, and open means of ingress
and egress.
SECTION 2: TERM
The term of this lease will be for five (5 years) and will start on March 15, 2012 —
March 14, 2017. Tenant must provide Landlord with 60 days notice if they choose to
renew the lease of the Premises.
SECTION 3: RENT
A. RATE: Tenant agrees to pay Landlord a monthly rental payment for
the term of this Agreement in accordance with the rental rate schedule outlined on the
first page. The rent is due and payable on the first day of each month.
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B. LATE CHARGES. ANY PAYMENTS FOR RENTAL OR ADDITIONAL
RENTAL NOT PAID WITHIN FIVE (5) DAYS OF THE DUE DATE SHALL INCUR A
LATE PAYMENT OF $10.00 PER DAY UNTIL PAID IN FULL.
C. PAYMENTS shall be mailed to: City of Evanston
Attn: Dept of Administrative Services
2100 Ridge Avenue, Room 4100
Evanston, IL 60201
D. RENT COMMENCEMENT: Tenant's obligation to pay any money
will not commence until the Vt day of the earlier of the completion of the tenant
improvements outlined on Exhibit "B", Site Plan, and a certificate of occupancy is issued .
or four months after the Effective Date of this Lease (the "Rent Commencement").
However, the schedule provided on the first page commences on the first date that
Tenant receives all permits, variances and governmental approvals necessary to
construct and operate Tenant's wine bar in the Premises (the "Rent Commencement
Date"). Tenant warrants they will use best efforts to complete construction on the
Tenant Improvements, obtain a business license, obtain a liquor license from the City
of Evanston and the State of Illinois, and open for business within 4 months of the
Effective Date.
SECTION 4: COMMON FACILITIES
A. MAINTENANCE BY LANDLORD: Landlord will maintain in good repair the
common and structural facilities of the Property which shall include but not be limited to
the following:
1. Exterior maintenance, including the foundation, walls, slab, doors and
roof and replacement;
2. A refuse container to be shared by all tenants in the Property;
3. Common electric facilities and the HVAC unit(s);
4. Common water facilities;
5. Fire Alarm inspections for the common facilities and Property; and
6. Hallways, stair rails, and related elements outside of the Premises within
the Property.
B. MAINTENANCE BY TENANT:
1. Snow and ice removal, including salting, from front walkway of Premises
and parking spaces behind the Property within 24 hours of any snow event with
accumulation of an 1 inch or more. Tenant will furnish snow removal equipment
and salt.
2. Premises maintenance and all fixtures and property within the space;
3. All refuse from Premises to be placed in appropriate containers; and
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4. The Tenant will at all times maintain all of the Premises in a clean, neat
and orderly condition. The Tenant will not use the Premises in a manner that
will violate or make void or inoperative any policy of insurance held by the
Landlord.
SECTION 6: SECURITY DEPOSIT
Concurrently with the execution of this Lease, Tenant shall deposit with Landlord
the sum of Two Thousand and 00/100 Dollars ($2,000.00). Said sum shall be held by
Landlord as security for the performance of all terms, covenants and conditions of this
Lease to be performed by Tenant. If Tenant defaults with respect to any provisions of
this lease, Landlord may at her option apply all or any portion of such deposit to
compensate Landlord for any loss or damage it may sustain. Landlord shall not be
required to keep this security deposit separate from its general funds and Tenant shall
not be entitled to any interest on such deposit. At the termination of this Agreement
Landlord shall refund the said security deposit to Tenant. In the event Tenant has
breached any of the terms, covenants and conditions of this Agreement or fails to leave
the premises in substantially the same condition as when Tenant took possession,
normal wear and tear excepted, Landlord shall be entitled to deduct from the security
deposit the amount expended by Landlord for necessary and reasonable repairs
Tenant shall not use the security deposit as the last month's rental payment. The
Landlord shall itemize the deductions from the Security Deposit, if any.
SECTION 6: OPTION TO PURCHASE PROPERTY.'
A. GENERAL: Tenant initially is only a Tenant of the Premises which is
owned and managed by Landlord. The Landlord owns the Property, on which the
Premises is located. As such, Tenant's monthly payments are lease and rental
payments. However, under the Landlord's terms of this Agreement, the Tenant has an
option to purchase the Property so long as the Tenant is occupying and leasing the
Property and is otherwise in compliance with Landlord's program rules after the end of
the third year (the "Option"). Tenant must submit written notification to Landlord that it
intends to exercise the Option within 90 days of expiration of the third year, thus notice
must be sent on or before the beginning of the 33`d month of the Lease. If Tenant elects
to NOT exercise the Option prior to the end of the third year of this Agreement, the
following are applicable: (1) the Landlord is freely able to market, enter into a contract,
and sell the Property to another purchaser; (2) Tenant shall remain a Tenant of the
Premises for the remainder of the term of the Agreement; and (3) Tenant shall not have
another option beyond the third year to purchase the Property at the end of the Term.
B. PURCHASE PRICE: The purchase price of this Property will be
$362,650.00 (the "Purchase Price"), which is based on the fair market value and
current appraisal of the Property and the actual cost of tenant improvements (see
Section 8) on the date of exercising the option and corporate authority decision. The
Purchase Price is based on the amount of the original purchase price that the City paid
for the property ($237,650.00), the CDBG funds anticipated to be used for the
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renovation of the residential units ($40,000.00), and part of the estimated Tenant
Improvement Allowance (defined supra).
C. CASH USED ALONE TO PURCHASE: The Tenant may notify Landlord
that they have the resources to purchase the Property and that the Tenant is exercising
the Option prior to the expiration of the Agreement. A closing or transfer of ownership
will occur upon the Tenant paying the purchase price and the Parties execution of a
purchase and sale contract ("Property Purchase Agreement").
D. RENTAL CREDITS USED TO PURCHASE: Credit will NOT be given
for residential rent payments, made to Landlord pursuant to the Lease Agreement
between Landlord and Anne Carlson and Cody Modeer, for the Option. The Landlord
will only give credit towards the purchase price for rent payments made under this
agreement for the lease of the Premises subject to this Agreement (the "Rental
Credit").
E. CASH AND RENTAL CREDIT USED TO PURCHASE: The Tenant may
notify Landlord that they will be exercising the Option to Purchase and that they wish to
use the Rental Credit and have the resources to supplement those credits to purchase
the Property. A closing and transfer of ownership will occur upon the Tenant paying the
difference between the rental credit and the purchase price.
F. DELINQUENCIES: Should the Tenant have incurred delinquencies with
Landlord, the Tenant will be required to payoff those delinquencies upon any offer to
exercise its Option.
G. TENANT BREACH: Should the Tenant breach this Agreement for any
reason other than nonpayment, at the discretion of Landlord, the Tenant's Option may
be denied.
H. LANDLORD REPORTING: So long as Tenant is leasing the Premises,
Landlord shall provide at the Tenant's request, approximately every year, a written
accounting of the rent paid on the Premises, any delinquencies owing, and the Property
purchase price. However, except for the above, Landlord is not obligated to advise the
Tenant when the Rental Credit equals or exceeds the purchase price.
I. PROPERTY SOLD: If the Property is purchased by the Tenant, the
maximum interest that Landlord has in the land and structures in accordance with the
Property PIN as indicated on Exhibit "A", and will be transferred pursuant to the
Property Purchase Agreement.
J. NO OBLIGATION TO PURCHASE THE PROPERTY: A Tenant is under
no obligation to purchase the Property and has the right to continue under the terms of
this Agreement as Tenant/renter. However, if the Tenant fails to exercise his or her
option at the conclusion of this Agreement, the Option to Purchase shall expire.
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K. NO LANDLORD RESPONSIBILITY AFTER PURCHASE: Upon sale to
Tenant pursuant to this Agreement, the Tenant shall become solely responsible for the
Property.
SECTION 7: USE OF PREMISES
A. PURPOSES: Tenant will use the Premises to operate a wine bar and sell
alcohol products and transaction of other related business and uses incidental thereto,
and no part of the Premises will be used for any other purpose without the prior written
consent of Landlord. The use of the premises will be in conformance with the
restrictions set forth in the Class S Liquor License granted to the Tenant's by the City of
Evanston corporate authorities. Prior to the issuance of a business license, the Tenant
shall submit copies of final lien waivers to Landlord from Tenant's contractors and
subcontractors for the tenant improvements.
B. BUSINESS HOURS: Tenant will operate the Premises and be open for
business at the discretion of the Tenant. When Tenant is open for business, Tenant will
provide adequate personnel to service its customers. However, if Tenant is unable to
comply with this provision due to shortage of materials, act of God, and destruction of
the premises by fire or other reason beyond Tenant's control (financial inability of
Tenant accepted), Tenant will not be deemed to be in default.
C. STORAGE OF MERCHANDISE: Tenant agrees to store on the Premises
only goods, wares and merchandise Tenant intends to offer for retail sale from the
Premises or use in connection with the service offered by Tenant in regular course of
the named Tenant's business. Tenant agrees to use for office or clerical purposes only
that space as is reasonably required for Tenant's business. In the basement of the
Property, storage lockers are available for the tenants to the Property. For the
Premises, Tenant shall be entitled to the use of one (1) storage locker. Tenant shall be
responsible for providing a lock for the storage locker. Landlord is not responsible for
any lost or stolen items from the storage locker.
D. STORAGE OF INFLAMMABLE MATERIALS: Tenant agrees that it will not
permit to be kept at the Premises any gasoline, distillate or other petroleum product, or
other substance of an explosive or inflammable nature as may endanger any part of the
premises without the written consent of the Landlord.
E. USE IMPAIRING STRUCTURAL STRENGTH: The Tenant will not permit the
Premises to be used in any manner that will impair the structural strength of the store
building, or permit the installment of any machinery or apparatus the weight or vibration
of which may tend to impair the building's foundations or structural strength.
F. GARBAGE DISPOSAL: The Tenant will not incinerate any garbage or debris
in or about the Premises, and will cause all containers, rubbish, garbage and debris
stored in the Premises to be hauled away for disposal before accumulation of any
substantial quantity.
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G. PUBLIC REGULATIONS: In the conduct of its business on the Premises,
Tenant will observe and comply with all laws, ordinances and regulations of public
authorities. Tenant acknowledges that the Property is owned by the City of Evanston
and therefore no smoking will be permitted at the Property.
H. OTHER MISUSE: Tenant will not permit any unlawful or immoral practice with
or without his knowledge or consent, to be committed or carried on in the Premises by
Tenant or any other person. Tenant will not use or allow the use of the Premises for
any purpose whatsoever that will injure the reputation of the Premises or of the building
of which they are a part.
I. PARKING: Tenant shall not be entitled to a parking spot in the back of the
Property as part of this Lease Agreement. As stated in the Residential Lease, the
Tenant is entitled to one (1) parking spot for the residential leased premises.
SECTION 8: IMPROVEMENTS.
A. FINANCING STATEMENT: The City will record a Uniform Commercial
Code ("UCC") Financing Statement against the Property for the fixtures, business
equipment, and other personal property to be installed at the property pursuant to the
site plan (the "Site Plan"). The Financing Statement will secure the Landlord's loan, as
detailed in Section 9 to Tenant for the improvements to the Premises. The Tenant will
also be required to execute a security agreement which details the terms and
conditions that the Landlord can lien the fixtures, business equipment, and personal
property (the "Security Agreement"). The terms and conditions of the Security
Agreement shall be incorporated into the Lease herein by reference.
B. INSTALLATION OF EXTERIOR LIGHTING AND FIXTURES: Tenant will
not install any exterior lighting, exterior plumbing facilities, shades or awnings,
amplifiers, or similar devices, or use any advertising medium that may be heard outside
the Premises, such as loudspeakers, or radio broadcasts, without Landlord's prior
written consent.
C. IMPROVEMENT INSTALLATION AND ALLOWANCE:
1. Improvement Allowance: Landlord shall provide Tenant with an
improvement allowance to renovate the Property in the principal amount of
no greater than $100,000.00, the final amount to be determined based on
the architecture drawings, scope of work, and cost projections (the "Tenant
Improvement Allowance'). The Tenant Improvement Allowance shall be
approved by the City Manager prior to any construction. This
Improvement Allowance shall NOT be paid out directly to the Tenant and
not be funded until: (a) City of Evanston Council has approved the
Agreement; (b) the Agreement is executed; and (c) Final improvement
plans attached as Exhibit "B" are accepted by both Parties. The Landlord,
as administrator of the grant, shall pay the contractors for the
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improvements directly in accordance with a separate TIF Grant
Agreement, the terms of which are incorporated herein by reference. The
Improvement Allowance is funded through the Howard -Ridge Tax
Increment Financing (TIF) District.
2. Construction of Improvements: The Tenant shall contract for the
construction of the improvements. The improvements shall be in
substantial conformance with the attached plans on Exhibit "B" (the
"Tenant Improvements"). Any variation from the plans shall be first
approved by the Landlord. Landlord shall not unreasonably withhold its
consent for approval of the revised plans.
D. Subject to the improvements provided on Exhibit "B", Tenant shall not
attach, affix or exhibit or permit to be attached, affixed or exhibited, except by Landlord
or his agent, any articles of permanent character or any sign, attached or detached with
any writing or printing thereon, to any window, floor, ceiling, door or wall in any place in
or about the Premises, or upon any of the appurtenances thereto, without in each case
the written consent of the Landlord; and shall not commit or suffer any waste in or
about said Premises; and shall make no changes or alterations in the Premises by the
erection of partitions or the papering of walls or otherwise, without the consent in
writing of Landlord; and in case Tenant shall affix additional locks or bolts on doors or
window, or shall place in the Premises lighting fixtures or any fixtures of any kind
without the consent of the Landlord first had and obtained such locks, bolts and fixtures
shall remain for the benefit of Landlord, and without expense of removal or
maintenance to Landlord.
SECTION 9: CDBG LOAN TO TENANT: The City shall provide a 10-year
loan to the Tenant in the principal amount of up to $130,000.00 (One Hundred Thirty
Thousand and no/100 Dollars), together with interest on the unpaid principal balance
from August 15, 2012, until paid in full. Borrower (Tenant) will pay this loan in 120
regular payments of $1,316.19 each. The loan shall be repaid at the earlier of the
following two dates: (1) after the date of termination of this Lease, without the Tenant
exercising its option to purchase; or (2) at the conclusion of the 120th month. The loan
terms are more specifically provided in the promissory note to evidence the
indebtedness (the "Note"). The Note will be secured by the fixtures and personal
property to which the City will be filing a UCC Financing Statement, as provided in
Section 8. Additionally, the CDBG Loan shall be administered in accordance with the
guidelines and requirements provided in a project agreement between the City and its
Borrower (the "Project Agreement"). The Project Agreement and Note terms shall be
incorporated into the Lease herein by reference.
SECTION 10: SIGNS: Tenant will have the exclusive right to maintain on the
exterior and interior of the Premises, at its own expense, all signs necessary to conduct
the business of Tenant. Tenant acknowledges that there are limitations from the City of
Evanston's Municipal Code for the sign size, type, and number and Tenant agrees to be
bound by such laws and ordinances.
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SECTION 11: DEFECTS; DEFECTIVE CONDITION; WIND; ACTS OF THIRD
PERSONS: Except as provided by Illinois law, Landlord will not be liable to Tenant for
any damage or injury to Tenant or Tenant's property occasioned by the failure of
Landlord to keep the Premises in repair, and shall not be liable for any injury done or
occasioned by wind or by or from any defect of plumbing, electric wiring or of insulation
thereof, gas pipes, water pipes or steam pipes, or from broken stairs, porches, railings
or walks, or from the backing up of any sewer pipe or down -spout or from the bursting,
leaking or running of any tank, tub, washstand, water closet or waste pipe, drain, or any
other pipe or tank in, upon or about the Premises or the building of which they are a
part nor from the escape of steam or hot water from any radiator, it being agreed that
said radiators are under the control of Tenant, nor for any such damage or injury
occasioned by water, snow or ice being upon or coming through the roof, skylight, trap
door, stairs, walks or any other place upon or near the Premises, or otherwise, nor for
any such damage or injury done or occasioned by the falling of any fixture, plaster, or
stucco, nor for any damage or injury arising from any act, omission or negligence or co-
tenants or of other persons, occupants of the same building or of adjoining or
contiguous buildings or of owners of adjacent or contiguous property, or of Landlord's
agents or Landlord, all claims for any such damage or injury being hereby expressly
waived by Tenant.
SECTION 12: CASUALTY DAMAGE; REPAIRS; ABATEMENT OF RENT
A. USE OF PARTIALLY DAMAGED PREMISES: On damage or destruction to the
Premises, Tenant will continue to use them for the operation of its business to the
extent practicable.
B. RIGHT TO TERMINATE ON DESTRUCTION OF TWO-THIRDS OF PREMISES:
Either Party will have the right to terminate this Agreement if, during the last year of the
term, the Premises is damaged to an extent exceeding two-thirds of the reconstruction
cost of the Premises as a whole. On termination, this Agreement will be affected by
written notice to the other Party, delivered within ten days of the damage.
C. REPAIRS BY LANDLORD: If the Premises are damaged or destroyed before or
after the start of the Agreement by any cause beyond Tenant's control, then Landlord
will immediately, on receipt of insurance proceeds paid in connection with casualty
damage, but no later than sixty days after damage has occurred, proceed to repair the
premises. Repairs will include any improvements made by Landlord or by Tenant with
Landlord's consent, on the same plan and design as existed immediately before the
damage occurred, subject to those delays reasonably attributable to governmental
restrictions or failure to obtain materials, labor or other causes, whether similar or
dissimilar, beyond the control of Landlord. Materials used in repair will be as nearly like
original materials as reasonably procured in regular channels of supply. Wherever
cause beyond the power of the party affected causes delay, the period of delay will be
added to the period in this lease for completion of the work, reconstruction or
replacement.
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D. REDUCTION OF RENT DURING REPAIRS: If Tenant continues to conduct
business during the making of repairs, the fixed minimum monthly rental will be
equitably reduced in the proportion that the unusable part of the premises bears to the
whole. The determination of the unusable space shall be determined by the Landlord
based on square footage. No rent will be payable while the store building is wholly
unoccupied pending the repair of casualty damage.
SECTION 13: REPAIRS AND MAINTENANCE
Tenant shall keep the Premises and appurtenances thereto in a clean condition,
and in good repair, all according to the statutes and ordinances in such cases made
and provided, and the directions of public officers thereunto duly authorized, all at
Tenant's own expense, and shall yield the same back to Landlord, upon the termination
of this Agreement, whether such termination shall occur by expiration of the term, or in
any other manner whatsoever, in the same condition of cleanliness, repair and
sightlines as at the date of the execution hereof, loss by fire and reasonable wear and
tear excepted. Tenant shall make all necessary repairs and renewals upon Premises
and replace broken globes, glass and fixtures with material of the same size and
quality as that broken and shall insure all glass in windows and doors of the Premises
at his own expense. If, however, the Premises shall not thus be kept in good repair
and in a clean, and healthy condition by Tenant, as aforesaid, Landlord may enter the
same, or by Landlord's agents, servants or employees, without such entering causing
or constituting a termination of this Agreement or an interference with the possession of
the Premises by Tenant, and Landlord may replace the same in the same condition of
repair, sightlines, healthiness and cleanliness as existed at the date of execution
hereof, and Tenant agrees to pay Landlord, in addition to the rent hereby reserved, the
expenses of Landlord in thus replacing the Premises in that condition. Tenant shall not
cause or permit any waste, misuse or neglect of the water, or of the water, gas or
electric fixtures.
Tenant will, at Tenant's expense, maintain all of the demised Premises, including
but not limited to, store fronts, bulk -heads, exterior entry and exit doors, ornamental
facing, plate glass and glazing on the demised Premises, in good condition and repair.
Tenant will also be in compliance with all laws and regulations during the entire term of
this Agreement, except for repairs required of the Landlord to be made and damage
occasioned by fire, hurricane or other causes as provided for in this Agreement.
SECTION 14: UTILITIES
Tenant agrees to pay before delinquency all charges for gas, water, heat,
electricity, power and other similar charges incurred by Tenant during its occupancy of
the Premises.
SECTION 15: TAXES
Tenant will pay before delinquency all taxes levied on Tenant's fixtures,
equipment and personal property on the demised Premises, whether or not affixed to
the real property. Landlord will prorate the real estate taxes for the Property based on
the proportionate share of the square footage of the Premises (the "Premises Real
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Estate Taxes"), which is equal to thirty three percent (33%). The Landlord will invoice
the Tenant for the Premises Real Estate Taxes and payment must be received within 30
days of the date of the invoice. The amount of the Real Estate Taxes owed will
fluctuate based on Cook County assessments.
SECTION 16: INSURANCE
A. INSURANCE COMPANIES: It is agreed that any policies of insurance to be
maintained by the respective parties will be obtained from good and solvent insurance
companies.
B. TENANT TO OBTAIN LIABILITY INSURANCE: Tenant agrees that it will, at
its expense, maintain a policy of insurance, written by responsible insurance carriers,
approved by Landlord that will insure Landlord against liability for injury to or death of
persons or damage to property occurring about the demised Premises. The liability
under insurance will be at least 1 million for any one person injured or killed or any one
occurrence, $2 million general aggregate coverage for any one accident, and
100,000.00 property damage.
C. TENANT TO OBTAIN WORKER'S COMPENSATION INSURANCE: Tenant
agrees to maintain employees' Worker's Compensation insurance required under Illinois
law, and any other insurance necessary to protect Landlord against liability to person or
property-
D. TENANT TO OBTAIN FIRE INSURANCE ON FIXTURES AND
INVENTORY: The Tenant agrees to maintain on all equipment in the Premises, a policy
of fire insurance in companies approved by the Landlord of at least 80 % of the
insurable replacement value. Tenant also will maintain adequate inventory insurance,
the proceeds of which will, as long as this Agreement is in effect, be used for the
replacement of the insured property. The policy will name Landlord as additional
beneficiary to protect Landlord's interest as Landlord.
E. LANDLORD TO OBTAIN FIRE INSURANCE ON PREMISES: Landlord
agrees to maintain during this Agreement, a policy fire insurance of at least 80 % of
the insurable value of the Premises. If permitted without additional charge, Landlord will
cause to be endorsed on its fire insurance, and any extended coverage policy or
policies, the waiver of right of subrogation.
F. TENANT'S WAIVER OF CASUALTY INSURANCE PROCEEDS: If the
Premises are damaged by fire or other casualty insured against, Tenant agrees to claim
no interest in any insurance settlement arising out of any loss where premiums are paid
by Landlord, or where Landlord is named as sole beneficiary, and that it will sign all
documents required by Landlord or the insurance company necessary in connection
with the settlement of any loss.
G. CONTROL OF INSURANCE PROCEEDS TO AVOID TAXABLE GAIN: If
the Premises, including any improvements, were to be damaged in any manner, and the
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receipt of any insurance proceeds or other reimbursement for such damage would
result in the realization of taxable gain for federal or state purposes, then the party to
whom the gain would be taxed will have the right to take all action respecting proceeds
or reimbursements necessary to enable party to comply with any regulations of the
appropriate taxing authorities, so that the gain will not be recognized for tax purposes.
Nothing here will be construed to entitle Landlord to delay any repairs to any part of the
improvements in the event of damage.
H. TENANT'S FAILURE TO INSURE: Should Tenant fail to keep in effect and
pay for insurance as required by this section, the Landlord may do so.
SECTION 17: SUBLETTING; ASSIGNMENT
The Premises shall not be sublet in whole or in part to any person other than
Tenant, and Tenant shall not assign this Agreement to any person or corporate entity,
unless directly affiliated with a corporate entity of Tenant. If Tenant, or any one or more
of the Tenants, if there be more than one, shall make an assignment for the benefit of
creditors, or shall be adjudged a bankrupt, Landlord may terminate this Agreement, and
in such event Tenant shall at once pay Landlord a sum of money equal to the entire
amount of rent reserved by this Agreement for the then unexpired portion of the term
hereby created as liquidated damages. At Landlord's option, should Landlord consent
to any assignment or sublease of the demised Premises, Tenant shall nevertheless
remain liable for all terms and conditions of this Agreement until the expiration of the
Agreement term stated above.
SECTION 18: SURRENDER OF PREMISES — HOLDING OVER
Subject to the Option to Purchase language, Tenant will, at the termination of this
Lease, leave the Premises in as good condition as they are in at the time of entry by
Tenant, except for reasonable use and wear, acts of God, or damage by casualty
beyond the control of Tenant. On vacating, Tenant will leave the Premises clear of all
rubbish and debris. If Tenant retains possession of the Premises or any part thereof
after the termination of the term by lapse of time or otherwise, then Landlord may at its
option within thirty days after termination of the term serve written notice upon Tenant
that such holding over constitutes the creation of a month to month tenancy, upon the
terms of this Agreement. Tenant shall also pay to Landlord all damages sustained by
Landlord resulting from retention of possession by Tenant. The provisions of this
paragraph shall not constitute a waiver by Landlord of any right of re-entry as
hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmation
of tenancy operate as a waiver of the right to terminate this Agreement for a breach of
any of the covenants herein.
SECTION 19: INDEMNIFICATION AND LIENS
A. LIENS AND ENCUMBRANCES: The Tenant will hold the Landlord harmless
from all claims, liens, claims of lien, demands, charges, encumbrances or litigation
arising out of any work or activity of Tenant on the Premises. Tenant will, within sixty
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(60) days after filing of any lien, fully pay and satisfy the lien and reimburse Landlord for
all resulting loss and expense, including a reasonable attorney's fees. Provided,
however, in the event that Tenant contests any lien so filed in good faith and pursues an
active defense of said lien, Tenant shall not be in default of this paragraph. However, in
the event of any final judgment against Tenant regarding such lien, Tenant agrees to
pay such judgment and satisfy such lien within 60 days of the entry of any such
judgment.
B. DISCHARGE OF LIEN: If Tenant fails to fully discharge any claim, lien, claim
of lien, demand, charge, encumbrance, or litigation, or should proceedings be instituted
for the foreclosure of any lien or encumbrance, and if judgment is rendered against
Tenant either by a court of competent jurisdiction or by arbitration and Tenant still
persists in non-payment of the same within the 60 day set forth above, Landlord will
have the right at any time after expiration of the 60-day period, to pay the lien or
encumbrance. All amounts so paid will be repaid by the Tenant on demand, together
with interest at the rate of _10_% per year from the date of payment and shall be
considered additional rent owed to Landlord by Tenant.
C. INDEMNIFICATION OF LANDLORD: Except as otherwise provided in this
Agreement, Tenant shall protect, indemnify and save Landlord and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or damage to property on the Premises, arising out of or in connection with Tenant's use
or occupancy of the Premises or Tenant's activities on the Premises, or contracts
entered into for work on the Premises, or arising from any negligent or willful act of
Tenant. Tenant shall pay for all of Landlord's costs of suit and attorneys fees and
expenses.
D. INDEMNIFICATION OF TENANT. Except as otherwise provided in this
Agreement, Landlord shall protect, indemnify and save Tenant and its officers, agents,
attorneys, and employees harmless from and against any and all obligations, liabilities,
costs, damages, claims and expenses of whatever nature arising from injury to persons
or damage to property on the Premises, arising out of or in connection with Landlord's
negligent act or omission or willful misconduct. Landlord shall pay for all of Tenant's
costs of suit and attorneys fees and expenses.
SECTION 20: LANDLORD'S RIGHT OF INSPECTION AND REPAIRS
Tenant shall allow Landlord or any person authorized by Landlord reasonable
access to the Premises during regular business hours for the purpose of examining or
exhibiting the same, or to make any repairs or alterations thereof which Landlord may
see fit to make. If the Tenant does not exercise the Option and/or will be vacating the
Premises at or prior to the end of the Term, Tenant will also allow Landlord to have
placed upon the Premises at all times notices of "For Sale" and "For Rent", and Tenant
will not interfere with the same.
SECTION 21: DEFAULT AND REMEDIES
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A. EVENT OF DEFAULT: Any one of the following events shall be deemed to be
an event of default hereunder by Tenant subject to Tenant's right to cure:
(1) Tenant shall fail to pay within five (5) days, any item of Base Rent
at the time and place when and where due;
(2) Tenant shall fail to maintain the insurance coverage as set forth
herein;
(3) Tenant shall fail to comply with any term, provision, condition or
covenant of this Lease, other than the payment of rent, and shall not cure,
or commence the good faith cure of any such failure, within fifteen (15)
days after written notice to the Tenant of such failure;
(4) Tenant shall make a general assignment the benefit of creditors, or
shall admit in writing its inability to pay its debts as they become due or
shall file a petition in bankruptcy; or
(5) Any default by Tenant under the terms of the Note, Project
Agreement, or Security Agreement.
B. OCCURRENCE OF AN EVENT: Upon the occurrence of any event of
default, Landlord shall have the option to pursue any one or more of the following
remedies subject to the laws of the State of Illinois and the Tenants right to cure:
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, but if Tenant fails to do so, Landlord
may, without further notice and without prejudice to any other remedy
Landlord may have for possession or arrearages in rent or damages for
breach of contract, enter upon the Premises and expel or remove and with
or without notice of such election or any notice or demand whatsoever,
this Agreement shall thereupon terminate and upon the termination of
Tenant's right of possession, as aforesaid, whether this Agreement be
terminated or not, Tenant agrees to surrender possession of the Premises
immediately, without the receipt of any demand for rent, notice to quit or
demand for possession of the Premises whatsoever and hereby grants to
Landlord full and free license to enter into and upon the Premises or any
part thereof, to take possession thereof with or (to the extent permitted by
law) without process of law, and to expel and to remove Tenant or any
other person who may be occupying the Premises or any part thereof, and
Landlord may use such force in and about expelling and removing Tenant
and other persons as may reasonably be necessary, and Landlord may
re -possess herself of the Premises as of her former estate, but such entry
of the Premises shall not constitute a trespass or forcible entry or detainer,
nor shall it cause a forfeiture of rents due by virtue thereof, nor a waiver of
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any covenant, agreement or promise in this Agreement contained to be
performed by Tenant. Tenant and its effects, without being liable to
prosecution or any claim for damages therefor; and Tenant agrees to
indemnify Landlord for all loss and damage which Landlord may suffer by
reason of such lease termination, whether through inability to re -let the
Premises, or through decrease in Rent, or otherwise.
(2) Landlord may recover from Tenant upon demand all of Landlord's
costs, charges and expenses, including the fees and costs of counsel,
agents and others retained by Landlord which have been incurred by
Landlord in enforcing Tenant's obligations hereunder, subject to Landlord
prevailing on its claims.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of any
other remedy herein provided or available to Landlord at law or in equity, or
constitute a forfeiture or waiver of any Rent due hereunder or of any damages
suffered by Landlord.
C. REPOSSESSION OR RELETTING NOT A TERMINATION; LANDLORD'S
RIGHT TO TERMINATE NOT FORFEITED: No repossession, operation or re -letting of
the Premises or of fixtures and equipment will be construed as an election by Landlord
to terminate this Agreement unless a written notice is given by the Landlord to the
Tenant. The Landlord may terminate this Agreement if the Tenant remains in default.
The acceptance of rent, whether in a single instance or repeatedly, after it falls due, or
after knowledge of any breach hereof by Tenant, or the giving or making of any notice
or demand, whether according to any statutory provision or not, or any act or series of
acts except written waiver, shall not be construed as a waiver of Landlord's rights to act
without notice or demand or of any other right hereby given Landlord, or as an election
not to proceed under the provisions of this Agreement.
D. TENANT'S OBLIGATION TO PAY DEFICIENCIES: If rentals received by the
Landlord from re -letting the Premises under the provisions of this section are insufficient
to pay all expenses and amounts due, Tenant will pay any deficiencies to the Landlord
on demand and be declared in default for failure to pay.
E. LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES AT TENANT'S
COST: If in Landlord's judgment any default by Tenant will jeopardize the Premises or
the rights of Landlord, Landlord may, without notice, elect to cure Tenant's default and
Tenant will reimburse Landlord, with interest, on 10-days' notice by Landlord to Tenant.
F. LANDLORD'S RIGHT TO TERMINATE AGREEMENT: If Tenant defaults as
stated in Paragraph A of this section, Landlord may, without further notice, terminate
this Agreement and all interest of Tenant and may take possession of the Premises by
legal proceedings.
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G. LANDLORD'S RIGHT ON TERMINATION TO RECOVER AMOUNT EQUAL
TO RENT RESERVED: If this Agreement is terminated by Landlord due to any default
by Tenant, Landlord will be entitled to recover from Tenant, at termination, the excess, if
any, of the rent reserved in this Agreement for the balance of the term over the
reasonable rental value of the Premises for the same period. The "reasonable rental
value" will be the amount of rental Landlord can obtain as rent for the balance of the
term.
H. LANDLORD'S REMEDIES CUMULATIVE: All of the remedies given to
Landlord in this Agreement or by law are cumulative, and the exercise of one remedy by
the Landlord will not impair its right to exercise any other right or remedy.
SECTION 22: INTENTIONALLY DELETED.
SECTION 23: REMOVAL OF OTHER LIENS
In event any lien upon Landlord's title results from any act or neglect of Tenant
and Tenant fails to remove said lien within ten days after Landlord's notice to do so,
Landlord may remove the lien by paying the full amount thereof or otherwise and
without any investigation or contest of the validity thereof and Tenant shall pay Landlord
upon request the amount paid out by Landlord in such behalf, including Landlord's
costs, expenses and reasonable attorney's fees. If Tenant demonstrates to Landlord
that Tenant is contesting the validity of said lien in good faith, then Landlord shall allow
Tenant to so contest such lien until either Tenant either abandons such contest or a
final verdict is reached in a court of competent jurisdiction. Any amount advanced on
behalf of Tenant shall be paid to Landlord by Tenant within 30 days after such
advancement is made together with interest at 9% per annum and such amount shall be
considered additional rentals.
SECTION 24: REMEDIES NOT EXCLUSIVE
The obligation of Tenant to pay the rent reserved hereby during the balance of
the term hereof, or during any extension hereof, shall not be deemed to be waived,
released or terminated, by the service of any five-day notice, other notice to collect,
demand for possession, or notice that the tenancy hereby created will be terminated on
the date therein named, the institution of any action of forcible detainer or ejectment or
any judgment for possession that may be rendered in such action, or any other act or
acts resulting in the termination of Tenant's right to possession of the Premises. The
Landlord may collect and receive any rent due from Tenant and payment or receipt
thereof shall not waive or affect any such notice, demand, suit or judgment, or in any
manner whatsoever waive, affect, change, modify or alter any rights or remedies which
Landlord may have by virtue hereof.
SECTION 26: EXPENSES OF ENFORCEMENT
Tenant, if Landlord is the prevailing party, shall pay upon demand all Landlord's
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Landlord, incurred in enforcing any of the obligations of
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Tenant under this Agreement, or in any litigation, negotiation or transaction in which
Landlord shall, without Landlord's fault become involved through or on account of any
action or omission of Tenant regarding this Agreement.
Landlord, if Tenant is the prevailing party, shall pay upon demand all Tenant's
costs, charges and expenses, including reasonable attorney's fees, agents fees and
fees of others retained by Tenant, incurred in enforcing any of the obligations of
Landlord under this Agreement, or in any litigation, negotiation or transaction in which
Tenant shall, without Tenant's fault become involved through or on account of any
action or omission of Landlord regarding this Agreement.
SECTION 26: EMINENT DOMAIN
A. MORE THAN 30 PERCENT TAKEN: If 30 percent or more of the Premises
are taken for a public or quasi -public use, this lease will terminate as of the date of the
physical taking, and the Parties will be released from all further liability.
B. LESS THAN 30 PERCENT TAKEN: If the taking affects less than 30 percent
of the Premises, the Landlord will, with reasonable diligence, proceed at Landlord's
expense to repair the Premises and place them in tenantable condition within 120 days
after the date of the actual physical taking. However, if 25% percent or more of the
Premises as a whole is taken, the Landlord may elect to terminate this Agreement,
notwithstanding that less than 30 percent of the Premises were taken. On termination,
the parties will be released from all further liability under this Agreement.
C. ABATEMENT OF RENT: During any repair, Tenant will be required to pay
only that part of the fixed minimum monthly rental as the area of the tenantable
Premises remaining during repairs bears to the entire area leased. On completion of
repairs, the fixed minimum monthly rental will be adjusted in proportion to the repaired
area, and Tenant will be required to pay the adjusted fixed minimum monthly rental in
accordance this Agreement. There will be no abatement of any rent once physical
possession is taken of part of the Premises. The method of computing the percentage
rental will not change, and there will be no reduction of percentage rental.
D. RIGHT TO CONDEMNATION AWARD: Any award made in any
condemnation proceeding for the taking of any part of the Premises will be the sole
property of Landlord.
SECTION 27: GOVERNMENTAL INTERFERENCE WITH POSSESSION
Tenant will not be released from its obligation should its possession of the
Premises be interfered with by adoption of any law, ordinance, resolution, regulation or
act of any legal or governmental authority. Further, Tenant will not be released by any
order of abatement or judgment preventing use of the premises on the ground that the
Premises or the business operated there constitutes a legally recognized nuisance.
SECTION 28: PEACEFUL ENJOYMENT
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Landlord covenants and warrants that, subject to any trust deeds or mortgages of
record, it is the owner of the Property and Premises, and that Tenant, on payment of
rents and performance of the conditions, covenants, and agreements to be performed
by it, may enjoy the Premises without interruption or disturbance.
SECTION 29: EFFECT OF WAIVER OF BREACH OF COVENANTS
No waiver of any breach of any condition of this Agreement will be construed to
be a waiver of any other breach of provision, covenant or condition.
SECTION 30: TIME OF THE ESSENCE
Time is of the essence.
SECTION 31: AMENDMENTS TO BE IN WRITING
This Agreement may be modified or amended only in writing signed by Landlord
and Tenant. It may not be amended or modified by oral agreements between the
Parties unless they are in writing duly executed by Landlord and Tenant.
SECTION 32: PARTIES BOUND
Every provision of this Agreement will bind the parties and their legal
representatives. The term "legal representatives" is used in its broadest meaning and
includes, in addition to executors and administrators, every person, partnership,
corporation or association succeeding to any interest in this Agreement. Every
covenant, agreement and condition of this Agreement will be binding on Tenant's
assignees, subtenants, concessionaires and/or licensees, heirs, administrators and
executors.
SECTION 33: NOTICES
All notices or demands that Landlord may need to serve under this Agreement
may be served on Tenant (as an alternative to personal service) by mailing a copy by
registered or certified mail to the following addresses for the parties:
City of Evanston
Attn: W. Grant Farrar, Corporation Counsel
2100 Ridge Avenue, Rm 4400
Evanston, IL 60201
Cody Modeer and Anne Carlson
631 Howard Street, Unit 2
Evanston, IL 60202
Service will be deemed complete at the time of the leaving of notice or within 2
days after mailing. All notices or demands from Tenant to Landlord may be served on
Landlord at the address where rent is being paid, or at any other address Landlord may
in writing designate to Tenant. In the event that it appears that Tenant is avoiding the
service of any notice and is not present at the Premises for a period of more than 14
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consecutive days, notices may be served by posting such notice upon the Premises.
Notice shall than be deemed effective 5 days after such posting.
SECTION 34: MISCELLANEOUS
Provisions typed on this Agreement and all riders attached to this Agreement and
signed by Landlord and Tenant are hereby made a part of this Agreement. (b) Tenant
shall keep and observe such reasonable rules and regulations now or hereafter required
by Landlord, which may be necessary for the proper and orderly care of the building of
which the Premises are a part. (c) All covenants, promises, representations and
agreements herein contained shall be binding upon, apply and inure to the benefit of
Landlord and Tenant and their respective heirs, legal representatives, successors and
assigns. (d) the rights and remedies hereby created are cumulative and the use of one
remedy shall not be taken to excuse or waive the right to the use of another. (e) The
words "Landlord" and "Tenant" wherever used in this Agreement shall be construed to
mean Landlords or Tenants in all cases where there is more than one Landlord or
Tenant herein; and the necessary grammatical changes shall be assumed in each case
as though full expressed. (f) This Agreement and any written and signed Amendments
and/or Riders hereto shall constitute the entire agreement between the parties, and any
oral representations made by one party to the other are considered merged herein. (g)
In all cases where Landlord's consent is required, Landlord's consent shall not be
unreasonably withheld. (h) This Agreement may be executed in multiple copies, each of
which shall constitute an original.
SECTION 35: VENUE AND JURISDICTION
The Parties agree the this Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois and that venue for any disputes shall be
in the Circuit Court of Cook County, Illinois.
[Signatures on following page]
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IN WITNESS WHEREOF, both of said Landlord and Tenant have caused this
Agreement to be executed as of the date and year first above written by a duly
authorized officer or manager of each of the respective parties.
Landlord: THE CITY OF EVANSTON,
an Illinois home rule municipal corporation
By:
Its: City Manager, Wally Bobkiewicz
Tenant: WARD EIGHT LLC,
an Illi 1s limited liability
company
y
Its: Manager, Ann
By:
Its: Manager, Cody Modeer
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EXHIBIT "A"
LEGAL DESCRIPTION
LOT 6 AND THE EAST 0.62 FEET OF LOT 5 IN BLOCK 1 IN NILES HOWARD
TERMINAL ADDITIONAL, BEING A SUBDIVISION OF THE SOUTH 6.25 CHAINS (412
% FEET) OF THAT PART OF THE NORTHEAST'% OF SECTION 30, TOWNSHIP 41
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING WEST OF
THE RIGHT OF WAY OF THE CHICAGO AND NORTH WESTERN RAILROAD IN
COOK COUNTY, ILLINOIS.
Real property address: 629-631 Howard Street, Evanston, Illinois, 60202
PIN:11-30-209-024-0000
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PREMISES IMPROVEMENTS - SITE PLAN
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PROJECT AGREEMENT
Loan Agreement dated as of March 15, 2012, WARD EIGHT LLC, an Illinois
limited liability company, individuals (the "Borrower"), and the CITY OF EVANSTON,
ILLINOIS, an Illinois municipal corporation ("City"), as Grantee under a Grant
Agreement with the United States Department of Housing and Urban Development, and
subject to the provisions of said loan. The Borrower and the City shall be referred to
herein as the "Parties". The Parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have the same meaning
when used in the plural and vice versa):
"Affiliate" means any Person (1) which directly or indirectly controls, or is controlled
by, or is under common control with the Borrower or a Subsidiary; (2) which directly or
indirectly beneficially owns or holds five percent (5%) or more of any class of voting
stock of the Borrower or any Subsidiary; or (3) five percent (5%) or more of the voting
stock of which is directly or indirectly beneficially owned or held by the Borrower or a
Subsidiary. The term control means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Loan Agreement, as amended, supplemented, or modified
from time to time.
"Borrower" is the person, persons, or entity owing money under this agreement or
combination thereof.
"Business Day" means any day other than a Saturday, Sunday or other day on which
commercial banks in Illinois are authorized or required to close under the laws of the
State of Illinois.
"Collateral" means all property subject to the Lien granted by the Security
Agreement, and/or Mortgage.
"Debt" means (1) indebtedness or liability for borrowed money or for the deferred
purchase price of property or services (including trade obligations); (2) obligations as
lessee under capital leases; (3) current liabilities in respect of unfunded vested
benefits under any retirement plans; (4) obligations under letters of credit issued for the
account of any Person; (5) all obligations arising under acceptance facilities; (6) all
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guaranties, endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations to purchase, to provide funds for payment,
to supply funds to invest in any Person, or otherwise to assure a creditor against loss;
funds to invest in any Person, or otherwise to assure a creditor against loss; and (7)
obligations secured by a Lien on property owned by the Person, whether or not the
obligations have been assumed.
"Event of Default" means any of the events specified and provided that any
requirement for the giving of notice, the lapse of time, or both, or any other condition,
has been satisfied.
"GAAP" means generally accepted accounting principles in the United States.
"Guarantor" means names of all guarantors — those who own 20% or more of
business.
"Guaranty" means the Note to be delivered by the Guarantor under the terms of this
Agreement.
"Head Office" means City Hall, 2100 Ridge Avenue, Evanston, Illinois 60201.
"Liens" means any mortgage, deed of trust, pledge, security interest, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority, or other security agreement or preferential arrangement, charge, or encum-
brance of any kind of nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of any financing statement
under the Uniform Commercial Code or comparable law of any jurisdiction to evidence
any of the foregoing).
"Loan" will have the meaning assigned to such term in ARTICLE II.
"Loan Documents" means this Project Agreement, the Promissory Note, the Security
Agreement, and the Commercial Lease Agreement.
"Note" will have the meaning assigned to such term in ARTICLE II.
"CDBG" means Community Development Block Grant — Recovery Program
governed by the program rules and regulations under the Housing and Community
Development Act of 1974, as amended.
"Person" means an individual, partnership, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture, governmental authority, or
other entity of whatever nature.
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"Security Agreement" means the Security Agreement to be delivered by the
Borrower under the terms of this Agreement.
"Subsidiary" means, as to any Person, corporation of which shares of stock having
ordinary voting power (other than stock having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other
managers of such corporations is at the time owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person.
SECTION 1.02. Project Description. Borrower will be opening a wine
bar business called "Ward Eight' at 629 W. Howard Street, Evanston, Illinois 60202.
Ward Eight will be an owner -operated neighborhood bar and eatery. The establishment
will be serving cocktails, craft beer, boutique wines, and seasonal food to its customers.
The loan funds will be used in accordance with the terms of this Agreement to enable
the Borrower to begin operating the subject business.
SECTION 1.03. Borrower Representations. The Borrower represents and
warrants that it is duly organized and existing under the laws of State of Illinois and is in
good standing as necessary in the State of Illinois. The Borrower represents it has the
power to enter into this Agreement and other Loan Documents required under this
agreement. That by proper action in accordance with its organizational documents has
been duly authorized to execute and deliver this Agreement and all documents required
under its terms. The Borrower covenants that this Agreement does not contravene any
law or contractual restriction binding or affecting the Borrower, and that the Agreement
will be legal, valid, and binding obligations of the Borrower, and further that as of the
date of this agreement the Borrower represents that no event or change of condition
has occurred which is a material (as defined by the Securities and Exchange
Commission) which would affect the ability of the Borrower to perform its obligations
hereunder on a timely basis.
A. As of the date of this Agreement there is no suit, action, or proceeding
pending or threatened as to which outcome would be materially adverse effect on the
Borrower.
B. The Borrower and all entities affiliated with the Borrower have filed all tax
returns required to be filed by them and paid all taxes required as show on those
returns.
C. The Borrower represents that it has a DUNS (Data Universal Numbering
System) number, in order facilitate disbursement of loan funds properly under federal
guidelines.
SECTION 1.04. Accounting Terms. All accounting terms not specifically
defined herein will be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial statements,
and all financial data submitted pursuant to this Agreement will be prepared in
accordance with such principles.
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SECTION 1.05. Security Interests. The Borrower hereby grants a security
interest in and to all equipment (as defined in Article 9 of the Illinois Uniform
Commercial Code), machinery, apparatus, fittings, and other tangible personal property
from the use of the proceeds of this Loan Document and Note. Including but not limited
to, all the property described in "Exhibit A'; and any other now owned or hereafter
acquired machinery, apparatus, equipment, and betterment.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01. Amount of Loan. The City agrees based on the terms and
conditions hereinafter set forth, to make a loan (the "Loan") to the Borrower on the date
of this Agreement in the principal sum of One Hundred Thirty Thousand and no/100
Dollars ($130,000.00).
SECTION 2.02. Interest. The Borrower will pay interest to the City on the
outstanding and unpaid principal amount of the Loan made under this Agreement at a
rate per annum equal to four percent (4%). Any principal amount not paid when due
(at maturity, by acceleration, or otherwise) will bear interest thereafter until paid at a
rate, which will be eighteen percent (18%).
SECTION 2.03. Term Note. The Borrower's obligation to repay the Loan will be
evidenced by its promissory note (the "Note") in substantially the form of Exhibit B
hereto and payable to the order of the City.
SECTION 2.04. Indebtedness. The Borrower will not incur any long-term
indebtedness for borrowed money or guarantee any such long-term indebtedness or
issue debt securities of any type without the written consent of the City other than (a) in
replacement of existing or maturing debt (b) in the ordinary course of business
consistent with prior practice.
SECTION 2.05. Payment of Funds. The Parties acknowledge and agree that
the Loan funds will be used for payment of Eligible Uses, defined supra in Section 2.07,
and payment will be made to the vendors directly by the City after determination of
eligibility. In addition, the parties will later agree on the amount of working capital funds
and a disbursement schedule. The funds shall be fully disbursed on or before August
15, 2012 to the Borrower and payment made to the vendors no later than September
30, 2012.
SECTION 2.06. Access to Information. Upon request and reasonable notice of
the City, the Borrower agrees to provide any and all receipts, invoices, statements,
accounts, etc., for the project, as the City may deem necessary, for its review of the
project costs and management. Further, during the course of this Agreement ongoing
access to the Borrowers books, contracts, records, and properties for review of the
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operations of the Borrower. The Borrower agrees to provide the City with the following
documents prior to funding under this Agreement:
• Projected Cash Flow for 10 years;
• Budget including operating cash flow;
• Amount of the Monetary Investment from Borrower;
• Business Plan for the operation of the wine bar and restaurant;
• Project Timeline
SECTION 2.07. Microenterprise Assistance. The Borrower's business, prior to
execution of this Project Agreement, must meet or exceed the qualification standards
for a microenterprise set by HUD.
A. Purpose: The microenterprise business will employ five or fewer persons,
including the business owner or owners.
B. Eligibility: The Borrower has been previously determined to be eligible for
assistance, and has met a low -moderate income test; that is the Borrower (business
owners) has an income which does not exceed 80% of the area median income, which
is based on family size and gross annual income. The Borrower represents that the
business for which this assistance qualifies as a microenterprise, defined as having 5 or
fewer employees (including business owner).
C. Eligible Use of Funds:
i. Funds can be used to purchase capital equipment and fixtures including,
but not limited to, processing or display equipment; computer hardware; office
furniture; display fixtures, or other equipment and fixtures that directly support the
business activities of the applicant. The City intends to file a UCC lien on the
business.
ii. Funds can also be used for working capital purposes. The City intends
to file a UCC lien on the business.
iii. Program funds can be directed to purchase inventory for the business.
iv. Software that is specifically related to the business activity of the
Borrower may be purchased with the funds.
v. Other uses not specified and deemed appropriate by the City, will be
considered, including attorney fees or professional services, provided that it is in
the Borrower's Project Budget.
D. Ineligible Use of Funds:
i. Refinancing of existing debt and payment of interest as a result of interim
financing is an ineligible use of funds.
ii. Rental payments for the commercial business to the Landlord and rental
payments for Borrower's residence.
iii. Motor Vehicles cannot be purchased or leased with funds.
E. Disbursement of Funds: City disbursement of loan funds will be based on a
mutually agreed upon schedule and based on documented costs between the City and
the Borrower. The type of documentation required will be based on the expense to be
paid for; i.e. equipment/working capital/inventory/repairs, etc.. The loan funds must be
drawn on or before August 15, 2012.
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ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Amendments. No amendment, modification, termination, or
waiver of any provision of any Loan document to which the Borrower is a party, nor
consent to any departure by the Borrower from any Loan Document to which it is a
party, will in any event be effective unless the same will be in writing and signed by both
parties, and then such waiver, consent, or extension will be effective only in the specific
instance and for the specific purpose for which given.
SECTION 3.02. Notices. All notices and other communications provided for
under this Agreement and under the other Loan Documents to which the Borrower is a
party will be in writing (including telephone facsimile communication) and mailed or
telephone facsimiles or delivered it to the Borrower, at its address at:
Ward Eight LLC
631 Howard, Unit 2
Evanston, IL 60202
And if to the City, at its address at:
City of Evanston
Community and Economic Development Department
2100 Ridge Avenue
Evanston, IL 60201
With a copy to:
City of Evanston Law Department
Attn: W. Grant Farrar, Corporation Counsel
2100 Ridge Avenue, Room 4400
Evanston, IL 60201
or as to each party at such other address as will be designated by such party in a
written notice to the other party complying as to delivery with the terms of this Section
3.02. All such notices and communications shall, when mailed or telephone facsimile,
be effective when deposited in the mails or delivered to the telegraph company, respec-
tively, addressed as aforesaid, except that notices to the City pursuant to the provisions
of Article II shall not be effective until received by the City.
SECTION 3.03. No Waiver Remedies. No failure on the part of the City to
exercise, and no delay in exercising, any right, power, or remedy under any Loan
Documents shall not operate as a waiver thereof; nor shall any single or partial exercise
of any right under any Loan Documents preclude any other or further exercise thereof or
the exercise of any other right. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law.
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SECTION 3.04. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Borrower and the City and their respective
successors and assigns, except that the Borrower may not assign or transfer any of its
rights under any Loan Document to which the Borrower is a party without the prior
written consent of the City.
SECTION 3.06. Business Contemplated. This Agreement requires the
Borrower to maintain the nature and type of business contemplated by the parties upon
execution of this Agreement, operation of a wine bar and restaurant within the corporate
limits of the City of Evanston, and failure to do so will be considered a non -monetary
default, of the Note (Exhibit B).
SECTION 3.06. Costs, Expenses, and Taxes. Upon an Event of Default
under the Loan Documents ,the Borrower agrees to pay on demand all costs and
expenses in connection with the collection of any of the loaned amounts, including
without limitation the reasonable fees and out-of-pocket expenses of counsel for the
City, and local counsel who may be retained by said counsel, with respect thereto and
with respect to advising the City as to its rights and responsibilities under any of the
Loan Documents, and all costs and expenses, if any, in connection with the
enforcement of any of the Loan Documents. In addition, the Borrower shall pay any and
all stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing, and recording of any of the Loan documents and the
other documents to be delivered under any such loan collection efforts.
SECTION 3.07. 24 CFR Part 570, Subpart K (Labor Standards) or Davis -
Bacon. After staff review, it has been determined by the City, acting through its
Community and Economic Development Director, that this activity is primarily related to
financing and that the City has no direct control or authority over any construction
activity within the commercial space subject to this Agreement, other than those arising
by operation of law concerning building, fire, safety, etc. codes, adopted from national or
state sources and uniformly enforced in the municipality.
SECTION 3.08. Indemnity. The Borrower will indemnify and hold harmless the
City and its officers, officials, agents, and employees from and against any and all
losses (including reasonable attorneys' fees), by it or them while it or they are acting in
good faith to carry out the transactions contemplated by this Loan Document, and
related Agreements. Except as otherwise provided in this Agreement, Borrower shall
protect, indemnify and save City and its officers, agents, attorneys, and employees
harmless from and against any and all obligations, liabilities, costs, damages, claims
and expenses of whatever nature arising from this Agreement in any way, including any
contracts entered into for the construction of the improvements, operation of the
business, or otherwise, or arising from any negligent or willful act of Tenant. Tenant
shall pay for all of Landlord's costs of suit and attorneys fees and expenses.
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SECTION 3.09. Governing Law. This Agreement and the Note shall be
governed by, and constructed in accordance with, the laws of the State of Illinois.
SECTION 3.10. Severability of Provisions. Any provision of any Loan
Document, which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 3.11. Headings. Article and Section headings in the Loan
Documents are included in such Loan Documents for the convenience of reference only
and shall not constitute a part of the applicable Loan Documents for any other purpose.
ARTICLE IV
REGULATIONS
The following laws and regulations govern the use of the proceeds of these funds
and Borrower must acknowledge and agree to adhere to the following regulations:
SECTION 4.01. Statutes.
A. Housing and Community Development Act of 1974, as amended;
P.L.93-38342 U.S.C. 5301, et. seq;
B. National Environmental Policy Act of 1969;
C. Civil Rights Act of 1964 - Title VI;
D. Civil Rights Act of 1968 - Title Vill;
E. Housing and Community Development Act of 1968, as amended,
(Section 3);
F. Rehabilitation Act of 1973, as amended;
G. Age Discrimination Act of 1975, as amended;
H. Uniform Relocation and Real Property Acquisition Policies Act of 1970,
as amended;
Flood Disaster Protection Act of 1973;
J. Hatch Act;
K. Lead -Based Paint Poisoning Prevention Act.
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SECTION 4.02. Executive Orders.
A. Executive Order 11246, as amended by Executive Orders 11375
and 12086 (Non -Discrimination);
B. Executive Order 11063, as amended by Executive Orders 12259
(Equal Opportunity/Non Discrimination);
C. Executive Orders 11988 and 11288 (Flood Hazards and
Prevention, Control and Abatement of Water Pollution)
SECTION 4.03. Regulations.
A. 24 CFR Part 58 (Environmental);
B. 24 CFR Part 1 (Civil Rights);
C. 41 CFR Chapter 60 (Non -Discrimination)
D. 24 CFR Part 107 (Equal Opportunity/Non-Discrimination)
E. 24 CFR Part 42 (Relocation/Acquisition)
F. 24 CFR Part 570, Subpart K (Labor Standards)
G. OMB Circular A-87 (Cost Principles)
H. OMB Circular A-102 (Uniform Administrative Requirements)
24 CFR Part 35 (Lead -Based Paint Poisoning)
J. 24 CFR 570 (CDBG - Economic Development)
Including an ongoing project determination of and in accordance with
CFR 570.209 as follows:
1. The project costs are reasonable;
2. That all sources of the project financing are committed;
3. That to the extent practicable, CDBG funds are not substituted
for non -Federal financial support;
4. That the project is financially feasible;
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That to the extent practicable, the return on the owner's equity
investment will not be unreasonably high;
6. That to the extent practicable, CDBG funds are distributed on a
pro-rata basis with other financing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date first
above written.
WARD EIGHT LLC
"lame: Cody Modeer
Its: Manager
By:
Name: Anne Carlson
Its: Manager
CITY O/F' VAMSTON
ra i. , 3
CED Ciirec $�, as designbe for♦ City Manager
Communit1 nd Economic Development Department
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PROMISSORY NOTE
Name and Address of Borrower:
Ward Eight LLC
629 Howard Street
Evanston, IL 60202
Dated: Auoust 15, 2012
1. BORROWER'S PROMISE TO PAY
FOR VALUE RECEIVED, the undersigned, Ward Eight LLC, an Illinois limited liability
company(referred to hereafter as the "Borrower"), promise to pay to the order of the City
of Evanston, an Illinois home rule municipal corporation, acting through its Community
and Economic Development Department, with its principal office located at 2100 Ridge
Avenue, Evanston, Illinois (the "Lender"), in the manner provided in this Note, the
principal sum of $130,000.00 (One Hundred Thirty Thousand and 00/100 Dollars) (the
"Loan"), the security interest will be secured by a Uniform Commercial Code financing
statement (the "UCC Financing Statement") and security agreement (the "Security
Agreement") against the Borrower's equipment and fixtures ("Equipment and Fixtures")
to be located at 629 Howard, Evanston, Illinois (the "Property") for the operation of the
business, dated the date of this Note and recorded with the Cook County Recorder of
Deeds on , 2012 and as Document Number (the
"Security"), together with interest computed on the basis of a 360 day year, from the
date of disbursement on the balance of principal remaining from time to time unpaid at
an annual rate equal to the greater of four percent (4.00%). Any principal amount not
paid when due (at maturity, by acceleration, or otherwise) will bear interest thereafter
until paid at a rate, which will be eighteen percent (18%). The Lender or anyone who
takes this Note by transfer and who is entitled to receive payments under this Note will
be called "Note Holder".
The funds for the Loan are provided through the Community Development Block Grant -
Recovery funds ("CDBG-R funds"), part of the American Recovery and Reinvestment
Act of 2009, totaling the amount of the Loan, have been allocated for economic
development activities in or near census tract 8102, which comprises the City's south
Neighborhood Revitalization Strategy Area (NRSA). Economic development is a high
priority of the NRSA plan, which is part of the City's 2010-2014 Consolidated Plan to
achieve the community development goals for south Evanston. This census tract is also
targeted by the City's Neighborhood Stabilization Program 2 grant to purchase,
rehabilitate and re -occupy foreclosed homes in neighborhoods hardest hit by
foreclosures and job losses.
CDBG-R funds will be used for economic development projects that may include:(a)
Rehabilitation of commercial properties purchased by the City with TIF dollars to
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address code violations and make improvements needed to attract retail or commercial
tenants; and/or (b) Grants or loans to for -profit businesses, non-profit enterprises or
micro -enterprises that provide economic development benefits; eligible uses of funds
include: property acquisition, construction, rehabilitation or other needs, and equipment
purchases.
The CDBG-R Funds shall be administered in accordance with the guidelines and
requirements provided in a project agreement between the City and its Borrower (the
"Project Agreement"). The Project Agreement terms are incorporated herein by
reference.
2. LOAN TERM, FORGIVENESS AND REPAYMENT
The term of the Loan is ten (10) years commencing on August 15, 2012 and ending on
August 14, 2022 (the "Loan Term"). The Loan will bear interest during the Loan Term at
4% interest per annum. The Loan can be pre -paid with no penalty or fee assessed
against the Borrower.
3. SECURITY FOR NOTE: UCC FINANCING STATEMENT
The indebtedness evidenced by this Note (including all principal, interest, charges, fees,
and expenses) is secured by the aforementioned Security, dated of even date herewith
encumbering the fixtures and personal property of the Borrower. The Note, Security
Agreement, and UCC Financing Statement shall be collectively referred to as the "Loan
Documents" and the terms of which are hereby incorporated by this reference. The
Lender will record the UCC Financing Statement following the execution of this Note,
which shall remain a valid lien on the Equipment and Fixtures until the Loan is paid off
in full and until the end of the Loan Term. The Note, Security Agreement, Project
Agreement, and UCC Financing Statement shall be collectively referred to as the "Loan
Documents" and the terms of which are hereby incorporated by this reference.
4. DEFAULT AND REMEDIES
A. The occurrence of any one or more of the following events ("Event of Default") with
respect to Borrower shall constitute a default hereunder ("Default"):
1) If Borrower does not occupy the Property as their place of business for the
duration of the Loan Term (including incidence of death of the Borrower). The
Lender shall give written notice to Borrower of this Default. The Borrower shall
have a period of thirty days to cure the Default ("Occupancy Cure Period").
2) If all or any part of the Fixtures and Equipment or any interest in it is sold
or transferred (or if a legal or beneficial interest in Borrower's interest in the
Fixtures and Equipment is sold or transferred) without Lender's prior written
consent.
3) If a default or event of default occurs and is continuing under any
representation or covenant under the Loan Documents.
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4) If a default or event of default occurs and is continuing under any other
mortgage or loan agreement encumbering the Fixtures and Equipment.
5) Borrower or any beneficiary thereof shall (i) file a petition for liquidation,
reorganization, or adjustment of debt under Title 11 of the United States Code or
any similar law, state or federal, whether now or hereafter existing, or (ii) file any
answer admitting insolvency or inability to pay debts, or (iii) fail to obtain a
vacation or stay of involuntary proceedings within ten days, as hereinafter
provided.
6) Borrower or any beneficiary thereof shall make an assignment for the
benefit of creditors of this Note, or shall admit in writing of its inability to pay its
debts generally as they become due, or shall consent to the appointment of a
receiver or trustee or liquidator of all or any major part of the Fixtures and
Equipment.
B. The Borrower also promises that, if the Event of Default specified above, 4(A)(1),
shall occur (after applicable notice and the Occupancy Cure Period detailed above)
before the expiration of the Loan Term, the Borrower agrees to repay to the order of the
Lender or its designee an amount equal to the original principal amount of the Loan and
it is immediately due and payable. Provided however, if an Event of Default is solely
with respect any other Event of Default specified above in 4(A), the Borrower shall have
sixty (60) days after the date on which the notice is delivered to Borrower to cure such
breach, provided, however, that if the curing of such non -monetary breach cannot be
accomplished with due diligence within said period of sixty (60) days then Borrower
shall have such additional reasonable period of time to cure such breach as may be
necessary, provided Borrower shall have commenced to cure such breach within said
period, such cure shall have been diligently prosecuted by Borrower thereafter to
completion ("Other Default Cure Period"). The notice shall further inform Borrower of
the right to reinstate after acceleration and the right to bring a court action to assert the
nonexistence of a default or any other defense of Borrower to acceleration and
foreclosure. If the Borrower does not cure the Default within the specified Other Default
Cure Period within the notice, then this Note is due and payable only with respect to the
remaining balance of the Loan at the time of Default.
C. If the Borrower Defaults hereunder, for the 10-year loan term, the Loan shall be
immediately due and owing and the principal amount of the Loan shall be immediately
repaid to Lender in full, subject to the availability of net proceeds from sale of the
Fixtures and Equipment. Lender can auction the Fixtures and Equipment and use the
proceeds and apply it to the loan balance.
D. If any payments of interest or the unpaid principal balance due under this Note or
any escrow fund payments for taxes or insurance required under the Security
Agreement become overdue for a period in excess of ten days, the Borrower shall pay
to Lender a late charge of $50 per day. If any attorney is engaged by Lender, including
in-house staff (a) to collect the indebtedness evidenced hereby or due under the Loan
Documents, whether or not legal proceedings are thereafter instituted by Lender; (b) to
represent Lender in any bankruptcy, reorganization, receivership, or other proceedings
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affecting creditors' rights and involving a claim under this Note; (c) to protect the lien of
any of the Loan Documents; (d) to represent Lender in any other proceedings
whatsoever in connection with this Note or any of the Loan Documents or the real
estate described therein; or (e) as a result of the Borrower's Default and collection
efforts, the Borrower shall pay to Lender all reasonable attorneys' fees and expenses
incurred or determined to be due in connection therewith, in addition to all other
amounts due hereunder.
E. Lender's remedies under this Note, , and all of the other Loan Documents shall be
cumulative and concurrent and may be pursued singly, successively, or together
against the Borrower and any other Obligors (as defined below), the Property, and any
other security described in the Loan Documents or any portion or combination of such
real estate and other security, and Lender may resort to every other right or remedy
available at law or in equity without first exhausting the rights and remedies contained
herein, all in Lender's sole discretion. Failure of Lender, for a period of time or on more
than one occasion to exercise its option to accelerate the maturity date shall not
constitute a waiver of the right to exercise that option at any time during the continued
existence of the Default or in the event of any subsequent Default. Lender shall not by
any other omission or act be deemed to waive any of its rights or remedies hereunder
unless such waiver is in writing and signed by Lender, and then only to the extent
specifically set forth therein. A waiver in connection with one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy in connection
with a subsequent event.
5. PAYMENT OF NOTE HOLDER'S COSTS AND EXPENSES
If the Lender is required to initiate legal process as the result of the Borrower's Default
as described above, the Lender will have the right to be paid back for all of its costs and
expenses incurred as a result of such Default, to the extent not prohibited by applicable
law. Those costs and expenses include but are not limited to, reasonable attorneys'
fees, court costs, and related litigation expenses.
6. BORROWER'S WAIVERS
To the extent permitted by law, the Borrower waives all rights to require the Lender to
do certain things. These things are: (A) to demand payment of amounts due (known as
"presentment"); (B) to give notice that amounts due have not been paid (known as
"notice to dishonor"); (C) to obtain an official certification of nonpayment (known as
"protest"). If more than one person signs this Note, each person is fully and personally
obligated to keep all of the promises made in this Notes, including the promise to pay
the full amount owed. Any person, who takes over these obligations, is also obligated
to keep all promises made in this Note. The Lender may enforce its rights under this
Note against each person individually or against all of us together.
7. GIVING OF NOTICES
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Any notices that must be given to the Borrower under this Note will be given by
delivering or by mailing by certified mail addressed to the Borrower at the address of the
Property set forth above.
Any notice that must be given to the Lender under this Note will be given by delivering it
or mailing it by certified mail to the Lender at the following address:
City of Evanston
Attn: Community and Economic Development Department
2100 Ridge Avenue, Room 3103
Evanston, Illinois 60201
with a copy to:
City of Evanston
Legal Department
2100 Ridge Avenue Room 4400
Evanston, Illinois 60201
8. RESPONSIBILITY OF PERSONS UNDER THIS NOTE
If more than one person signs this Note, each person is fully and personally obligated to
keep all of the promises made in this Note. The Lender may enforce its rights under this
Note against the signatories either individually or together. This means that both
signatories, either individually or together, may be required to pay all of the amounts
owned under this Note. Any person who takes over the rights or obligations of the
Borrower, with the written permission of the Lender, will have all of the Borrower's rights
and must keep all of the Borrower's promises made in this Note. Notwithstanding
anything in the Security Agreement to the contrary, the Loan is a recourse obligation of
the Borrower.
9. GOVERNING LAW AND WAIVER OF TRIAL BY JURY
This Promissory Note shall be governed by the laws of the State of Illinois. Borrower
hereby represents and warrants that it knowingly and voluntarily waives any
rights to trial by jury for any litigation related to or arising out of, under, or in any
way connected with the obligations of this Note.
10. MISCELLANEOUS
The headings of sections and paragraphs in this Note are for convenience only and
shall not be construed in any way to limit or define the content, scope, or intent of the
provisions hereof. As used in this Note, the singular shall include the plural, and
masculine, feminine, and neuter pronouns shall be fully interchangeable, where the
context so requires. If any provision of this Note, or any paragraph, sentence, clause,
phrase, or word, or the application thereof, in any circumstances, is adjudicated to be
invalid, the validity of the remainder of this Note shall be construed as if such invalid
part were never included herein. Time is of the essence of this Note.
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Upon any endorsement, assignment, or other transfer of this Note by Lender or by
operation of law, the term "Lender," as used herein, shall mean such endorsee,
assignee, or other transferee or successor to Lender then becoming the holder of this
Note.
This Note and all provisions hereof shall be binding on all persons claiming under or
through the Undersigned. The terms "Undersigned" and "Borrower," as used herein,
shall include the respective beneficiaries, successors, assigns, legal and personal
representatives, executors, administrators, devisees, legatees, and heirs of the
Undersigned and Borrower and shall be binding upon the same
In the event the Undersigned is an Illinois land trust, then this Note is executed by the
Trustee, not personally but as Trustee as aforesaid in the exercise of the power and
authority conferred on and vested in it as the Trustee, and is payable only out of the
property specifically described in the Loan Documents securing the payment hereof, by
the enforcement of the provisions contained therein. No personal liability shall be
asserted or be enforceable against the Trustee because or in respect of this Note or the
making, issue, or transfer thereof, all such liability, if any, being expressly waived by
each taker and holder hereof, and each original and successive holder of this Note
accepts the Note on the express condition that no duty shall rest on the Trustee to
sequester the rents, issues, and profits arising from the property described in the Loan
Documents, or the proceeds arising from the sale or other disposition thereof, but that in
case of Default in the payment of this Note or of any installment hereof, the sole
remedies of the holder hereof shall be by foreclosure of the UCC Financing Statement,
realization on the other security given under the other Loan Documents to secure
indebtedness evidenced by this Note, in accordance with the terms and provisions set
forth herein, or any combination of the above.
[Signatures on following page]
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The Undersigned have caused this Note to be executed as of the date first written
above.
Address: ci 3'Z 9 vJ C t eh � . ,J
C-il i r. &,n . 1 L Coo U. I t
H32,1 ni ki c4 mvJ
(,h t C4 a : f�- U Du I
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Iirmzam
EXHIBIT "C"
GUARANTY
Borrower: Ward Eight, LLC, an Illinois
limited liability company
Guarantors: Anne Carlson and Cody
Modeer,
individuals
631 Howard Street, Unit 2
Evanston, IL 60202
Loan Term: 10 years (120 months)
Lender: City of Evanston, an Illinois home
rule municipal corporation
Principal Amount: $130,000.00
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and
valuable consideration, Guarantor absolutely and unconditionally guarantees full and
punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the
performance and discharge of all Borrower's obligations under the Note and the Related
Documents. This is a guaranty of payment and performance and not of collection, so
Lender can enforce this Guaranty against Guarantor even when Lender has not
exhausted Lender's remedies against anyone else obligated to pay the Indebtedness or
against any collateral securing the Indebtedness, this Guaranty or any other guaranty of
the indebtedness. Guarantor will make any payments to Lender or its order, on demand,
in legal tender of the United States of America, in same -day funds, without set-off or
deduction, or counterclaim, and will otherwise perform Borrower's obligations under the
Note and Related Documents. Under this Guaranty, Guarantor's liability is limited to
Borrower's obligations under the Note.
INDEBTEDNESS. The word "'Indebtedness" as used in this Guaranty means all of the
principal amount outstanding from time to time and at any one or more times, accrued
unpaid interest thereon and all collection costs and legal expenses related thereto
permitted by law, attorneys' fees, arising from Borrower's obligations under the Note.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH
GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or to
Borrower, and will continue in full force until all the Indebtedness incurred or contracted
before receipt by Lender of any notice of revocation shall have been fully and finally
paid and satisfied and, all of Guarantor's other obligations under this Guaranty shall
have been performed in full. If Guarantor elects to revoke this, Guaranty, Guarantor
may only do so in writing. Guarantor's written notice of revocation must be mailed to
Lender; by certified mail, at Lender's address listed above or such other place as
Lender may designate in writing. Written revocation of this Guaranty will apply only to
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new Indebtedness created after actual receipt by Lender of Guarantor's written
revocation. For this purpose and without limitation, the term "new Indebtedness" does
not include the Indebtedness which at the time of notice of revocation is contingent,
unliquidated, undetermined or not due and which later becomes absolute, liquidated,
determined or due. For this purpose and without limitation" new indebtedness" does not
include all or part of the Indebtedness that is: incurred by Borrower prior to revocation;
Incurred under a commitment that became binding before revocation; any renewals,
extensions, substitutions, and modifications of the indebtedness. This Guaranty shall
bind Guarantor's estate as to the Indebtedness created both before and after
Guarantor's death or incapacity, regardless of Lander's actual notice of Guarantor's
death, Subject to the foregoing, Guarantor's, executor or administrator or other legal
representative may terminate this Guaranty in the same manner in which Guarantor
might have terminated it and with the some effect. Release of any, other guarantor or
termination of any other guaranty of the Indebtedness shall not affect the ability of
Guarantor under this guaranty. A revocation Lender receives from anyone or more
Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either
before or after any revocation hereof upon written notice to Guarantor by Lender,
without lessening Guarantor's liability under this Guaranty, from time to time: (A) prior to
revocation as set forth above, to make one or more additional secured or unsecured
loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to
extend additional credit to Borrower; (B) Intentionally Deleted; (C) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange, enforce,
waive, subordinate, fail or decide not to perfect, and release any such security, with or
without the substitution of new collateral; (D) to release, substitute, agree not to sue, or
deal with anyone or more of Borrower's sureties, endorsers, or other guarantors on any
terms or in any manner Lender may choose; (E) to determine how, when and what
application of payments and credits shall be made on the Indebtedness; (F) to apply
such security and direct the order or manner of sale thereof, including without limitation.
any non -judicial sale permitted by the terms of the controlling security agreement or
deed of trust, as Lender in its discretion may determine; (G) to sell, transfer, assign or
grant participations, in all or any part -of the Indebtedness: and (H) to assign or transfer
this Guaranty in whole or in part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents
and warrants to Lender that (A) no representations or agreements of any kind have
been made to Guarantor which would limit or qualify in any way the terms of this
Guaranty; (B) Intentionally Deleted; (C) Guarantor has full power, right and authority to
enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result
in a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order applicable to
Guarantor;" (E) Intentionally Deleted; (F) upon Lender's request, Guarantor will provide
to Lender financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, ,and all future financial information which
will be provided Lender is and will be true and correct in all material respects and fairly
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present, Guarantor's financial condition as of the dates the financial information is
provided; (G) no material adverse change has occurred in Guarantor's financial
condition since the date of the most recent financial statements provided to Lender and
no event has occurred which may materially adversely affect Guarantor's financial
condition; (H) no litigation, claim, investigation, administrative proceeding or similar
action (including those for unpaid taxes) against Guarantor is pending or threatened; (1)
Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial condition.
Guarantor agrees to keep adequately informed from such means of any facts, events,
or circumstances which might in any way affect Guarantor's risks under this Guaranty,
and Guarantor further agrees that, 'absent a request for information, Lender shall have
no obligation to disclose to Guarantor any information or documents acquired by Lender
in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other credit to
Borrower; (B) Intentionally Deleted. (C) to resort for payment or to proceed directly or at
once against any person, including Borrower or any other guarantor; (D) to proceed
directly against or exhaust any collateral held by Lender from Borrower, any other
guarantor, or any other person; (E) Intentionally Deleted; (F) to pursue any other
remedy within Lender's power; or (G) to commit any act or omission of any kind, or at
any time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or
impairment of collateral including, but not limited to, any rights or defenses arising by
reason of (A) any "one action" or "anti -deficiency" law or any other law which may
prevent Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any foreclosure
action, either judicially or by exercise of a power of sale; (B) any election of remedies by
Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or
Guarantors rights to proceed against Borrower for reimbursement. including without
limitation, any loss of rights Guarantor may suffer by reason of any law limiting,
qualifying, or, discharging the Indebtedness; (C) any disability or other defense of
Borrower, of any other guarantor, or of any other person, or by reason of "the cessation
of Borrower's liability from any cause whatsoever, other than payment in full in legal
tender, of the Indebtedness; (D) any right to claim discharge or the Indebtedness on the
basis of unjustified impairment, of any collateral for the Indebtedness; (E) any statute of
limitations, if at any time any action or suit brought by Lender against Guarantor is
commenced, there is outstanding Indebtedness which is not barred by any applicable
statute of limitations; or (F) any defenses given to guarantors at law or in equity other
than actual payment and performance of the Indebtedness. If payment is made by
Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness
and thereafter Lender is forced to remit the amount of that payment to Borrower's
trustee in bankruptcy or to any similar person under any federal or state bankruptcy law
or law for the relief of debtors, the Indebtedness shall be considered unpaid for the
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purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not
to assert or claim at any time any deductions to the amount guaranteed under this
Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar
right, whether such claim, demand or right may be asserted by the Borrower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor
warrants and agrees that each of the waivers set forth above is made with Guarantor's
full knowledge of its significance and consequences and that, under the circumstances,
the waivers are reasonable and not contrary to public policy or law. If any such waiver is
determined to be contrary to any applicable law of public policy, such waiver shall be
effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees
that the indebtedness, whether now existing or hereafter created, shall be superior to
any claim that Guarantor may now have or hereafter acquire against Borrower, whether
or not Borrower becomes insolvent. Guarantor hereby expressly subordinates, any
claim Guarantor may have against Borrower, upon an account whatsoever, to any claim
that Lender may now or hereafter have against Borrower. In the event of insolvency
and consequent liquidation of the assets of Borrower, through bankruptcy, by an
assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets
of Borrower applicable to the payment of the claims of both Lender and Guarantor shall
be paid to Lender and shall be first applied by Lender to the indebtedness. Guarantor
does hereby assign to Lender all claims which it may have or acquire against Borrower
or against any assignee or trustee in bankruptcy of Borrower; provided however, that
such assignment shall be effective only for the purpose of assuring to Lender full
payment in legal tender of the Indebtedness.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendments. This Guaranty together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set forth
in this Guaranty, No alteration of or amendment to this. Guaranty shall be
effective unless given in writing and signed by both parties.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Guaranty.
Lender may hire or pay someone else to help enforce this Guaranty, and
Guarantor shall pay the costs and expenses of such enforcement. Costs and
expenses include Lender's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post -judgment collection services.
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Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Guaranty are for convenience
purposes only and are not to be used to interpret or define the provisions of this
Guaranty.
Governing law. This Guaranty will be governed by federal law applicable to
Lender and, to the extent not preempted by federal law, the' laws of the State of
Illinois without regard to its conflicts of law provisions.
Integration. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity to be -
advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully
reflects Guarantor's intentions and parol evidence is not required to interpret the
terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless
from all losses, claims, damages, and costs (including Lender's attorneys' fees)
suffered or incurred by Lender as a result of any breach by Guarantor of the
warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor,
then all words used in this Guaranty in the singular shall be deemed to have
been used in the plural where the context and construction so require; and where
there is more than one Borrower named in this Guaranty or when this Guaranty
is executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and anyone or more of them. The words "Guarantor,"
"Borrower," and "Lender" include the heirs, successors, assigns, and transferees
of each of them, If a court finds that any provision of this Guaranty is not valid or
should not be enforced, that fact by itself will not mean that the rest of this
Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of
the provisions of this Guaranty even if a provision of this Guaranty may be found
to be invalid or unenforceable. If anyone or more of Borrower or Guarantor are
corporations, partnerships, limited liability companies, or similar entities, it is not
necessary for Lender to inquire into the powers of Borrower or Guarantor or of
the officers, directors, partners, managers, or other agents acting or purporting to
act on their behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in
writing, and, except for revocation notices by Guarantor, shall be effective when
actually delivered, when actually received by tele-facsimile (unless, otherwise
required by law) when deposited with a nationally recognized overnight courier,
or, if mailed, when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Guaranty. All revocation notices by Guarantor shall be in writing
and shall be effective upon delivery to Lender as provided in the section of this
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Guaranty entitled "DURATION OF GUARANTY." Any party may change its
address for notices under this Guaranty by giving formal written notice to the
other parties, specifying that the purpose of the notice is to change the party's
address, For notice purposes, Guarantor agrees to keep Lender informed at all
times of Guarantor's current address. Unless otherwise provided or required by
law, if there is more than one Guarantor, any notice given by Lender to any
Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by Lender.
No delay or omission on the part of Lender in exercising any right shall operate
as a waiver of such right or any other right. A waiver by Lender of a provision of
this Guaranty shall not prejudice or constitute e waiver of lender's right otherwise
to demand strict compliance with that provision or any other provision of this
Guaranty. No prior waiver by Lender, nor any course of dealing between Lender
and Guarantor, shall constitute a waiver of any of Lender's rights or of any of
Guarantor's obligations as to any future transactions, Whenever the consent of
Lender is required under this Guaranty, the granting of such consent by Lender
in any Instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on
transfer of Guarantor's interest, this Guaranty shall be binding upon and inure to
the benefit of the parties, their successors and assigns.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Guarantor
against the other.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United States
of America. Words and terms used in the singular shall include the plural, and the plural
shall include the singular, as the context may require. Words and terms not otherwise
defined in this Guaranty shall have the meanings attributed to such terms in the Uniform
Commercial Code:
Borrower. The word "Borrower" means Ward Eiqht, LLC and includes all co-
signers and co —makers signing the Note and all their successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
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Guarantor. The word "Guarantor' means everyone signing this Guaranty, Anne
Carlson and Codv Modeer, and in each case, any signer's successors and
assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to
Lender as more particularly described in this Guaranty.
Lender. The word "Lender' means Citv of Evanston, its successors and assigns
Note. The word "Note" means and includes without limitation all of Borrower's
promissory notes and/or credit agreements evidencing Borrower's loan
obligations in favor of Lander, together with all renewals of, extensions of,
modifications of, substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security 'agreements, mortgages, deeds of trust, security deeds,
collateral mortgages, and all other instruments, agreements and documents,
whether now or hereafter existing, executed in connection with the Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE
PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS, IN ADDITION,
EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE
UPON GUARANTOR'S EXECUTION AND DELIVERY OF THIS GUARANTY TO
UNDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE
MANNER SET FORTH IN THE SECTION TITLED "DURATION OF GUARANTY", NO
FORMAL ACCEPTANCE BY LENDER IS %CESSARY TO MAKE THIS GUARANTY
EFFECTIVE, THIS GUARANTY is DATED fa 9C �1 21� 2012.
GUARANTORS:
( NEAR S
CODY MODEER
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EXHIBIT "D"
This Security Agreement is by and among Ward Eight, LLC, an Illinois limited liability
company hereinafter referred to collectively as the "Debtor" for value received, hereby
grants to the City of Evanston, Illinois, an Illinois home rule municipality, with its
principal address at 2100 Ridge Avenue, Evanston, Illinois 60201, hereinafter referred
to as the "Secured Party," a security interest in the following collateral and all additions
thereto for the term of the loan that is the project agreement dated March 15, 2012
between the parties:
Street Address: 629 Howard Street, Evanston, Illinois 60202
Parcel Numbers: 10-30-209-024-0000
All equipment, machinery, apparatus, fittings, readily removable fixtures and other
tangible personal property, and any and all profits, fees, condemnation awards,
insurance proceeds, and other rights and interests.
This security interest is given for the purpose of securing payment of any and all
indebtedness of the Debtor to the Secured Party in connection with the loan made to
the Debtor and evidenced by promissory note dated August 15, 2012, together with all
costs and expenses in connection therewith including but not limited to expenses of
retaking, preserving, repairing, maintaining, preparing for sale, and selling said collateral
as well as reasonable attorney's fees, court costs, and other legal expenses. In the
event that Debtor defaults in the payment of said indebtedness, or becomes insolvent,
or fails to keep said collateral free of all other liens, or if for any reason the secured
party feels insecure, Secured Party has the option of declaring the entire indebtedness
immediately due and payable, and shall have all of the rights and remedies of a secured
party under the Illinois Uniform Commercial Code as the same may be amended from
time to time. The requirement of the reasonable notice of any sale hereunder shall be
met if such notice is mailed, postage prepaid, to the address of the Debtor shown at the
beginning of this agreement at least 5 days before the time of sale or disposition.
Secured Party and Debtor have caused this Agreement to be executed and
delivered as of the date set forth opposite their name.
City of Evanston, Illinois
®® -�
City I , Wra-lly Bobkiewicz
War 'ght, LLC�
By:
Anne C son pager
By:
Cody 1Glodeer, Manag
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TIF CONSTRUCTION GRANT AGREEMENT
THIS 1 CONST UCTION GRANT AGREEMENT (the "Agreement') is entered
into on this day of 6,4k , 2012 ("Effective Date'), by and between the
City of Evanston, an Illinois home rule municipality, ("City"), and Ward Eight, LLC, an
Illinois limited liability company ("Ward Eight"), regarding the renovation and occupation
of City property located at 629 Howard Street, Evanston, Illinois, legally described in
Exhibit "A", which is attached hereto and incorporated herein by reference ("Property").
RECITALS
WHEREAS, the City desires to foster local businesses and jobs as part of its
economic revitalization efforts throughout Evanston and in accord with the TIF
Guidelines, as defined herein; and
WHEREAS, the City Property is improved with a three-story building containing
one (1) commercial unit on the bottom floor and two residential units on the top two
floors and the City seeks to renovate the Property with TIF grant funds; and
WHEREAS, the City has authorized Economic Development Division Staff to
manage and administer this Agreement on behalf of the City including, without
limitation, authorizing the City Manager to execute this Agreement with Ward Eight,
thereby establishing the terms, conditions, and requirements for participation in this
Agreement in accordance with TIF Guidelines; and
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, and the mutual obligations of the parties as herein
expressed, the City and Ward Eight agree as follows:
AGREEMENT
I. DEFINITIONS
The following terms shall have the following meanings whenever used in this
Agreement, except where the context clearly indicates otherwise. Any ambiguity as to
the intended meaning or scope of the terms set forth below will be resolved solely by
the City through its designated representative.
a. "Completion Date" means the date that the contractor has finished the Project
pursuant to the plans approved by City Council, the City Manager or his/her
designee, and to the satisfaction of Ward Eight, as evidenced by final payment to
the contractor.
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b. "Director" means the City's Director of Community & Economic Development,
who is responsible for managing and administering this Agreement on behalf of
the City.
c. "Grant' means the total amount of the City's grant of TIF monies to Ward Eight
for purposes of funding TIF eligible activities of the Project, which shall not
exceed $100,000.00 and shall only be for approved improvements (One Hundred
and no/100 Dollars), the amount approved by City Council.
d. "Project" means the improvements on the Property as proposed by Ward Eight
and approved by the City Council. Specifically, Ward Eight desires to renovate
the Property to make it suitable for use as a cocktail/wine bar establishment and
use TIF funds for said renovation.
e. "TIF Eligible Activities" means activities determined to be eligible for payment
from the City's TIF fund under the guidelines of the Illinois Tax Increment
Allocation Redevelopment Act, 65 ILCS 5/11-74.4 et seq., as amended.
f. "TIF Guidelines" means the regulations found in the Illinois Tax Increment
Allocation Redevelopment Act, 65 ILCS 5/11-74.4 et seq., as amended. All terms
not defined herein shall have the meanings set forth in the TIF Guidelines.
g. "Total Allowable Expenses" means the actual costs incurred, paid for, and
documented by Ward Eight and approved by the Director or his/her designee for
the proper performance of the improvement work required by the plans and
specifications and/or architectural/design renderings for the Project. Such
allowable expenses must be TIF Eligible Activities.
h. "Total Project Expenditure" means the total actual Project costs incurred by
and paid for by the City, up to the amount of the Grant, and then payments made
by Ward Eight after the amount of the Grant has been spent, which includes all
costs of construction, materials, & supplies.
II. TERMS OF GRANT
a. City shall disburse funds in the principal amount not to exceed $100,000.00 (One
Hundred Thousand and no/100 Dollars) (the "Grant Amount") from the City's
Howard Ridge TIF Fund for improvements within the establishment that are
approved for funding for the Project.
b. The Grant by the City pursuant to this Agreement constitutes a 1-year grant to
Ward Eight, until the tenant improvements for the Project are fully completed as
described herein. If the Total Project Expenditures are greater than $100,000.00,
Ward Eight shall be solely responsible for any payments to the contractor or
subcontractors above the Grant fund amount. If any project costs are
determined to not be TIF Eligible Activities, Ward Eight must submit payment at
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its own expense and Grant funds may not be used and Ward Eight shall receive
no reimbursement from the City for non-TIF Eligible Activities.
c. The City shall be invoiced directly by the contractors and subcontractors for
payment. The Director or his designee shall review the invoices to ensure that
the invoice charges are TIF Eligible Activities prior to payment.
III. WARD EIGHT'S RESPONSIBILITIES
a. Ward Eight shall provide a list of all construction activities to the City prior to
commencement of work to verify that the project costs are TIF Eligible Activities.
Of those activities it will be determined which are eligible expenses for payment
by the City and are TIF-eligible activities.
b. Ward Eight shall comply with all terms and conditions of this Agreement and all
applicable all requirements of Federal, Illinois and City of Evanston law.
c. Ward Eight shall ensure that all work done on the Project and paid for with Grant
funds are TIF Eligible Activities. The City will separately evaluate whether the
project costs are TIF Eligible Activities.
d. Ward Eight shall obtain and submit all required certificates of insurance, as set
forth herein, to the City Manager or his/her designee upon execution of this
Agreement and prior to City's execution.
e. Ward Eight shall be responsible for hiring licensed contractors to complete the
Project. The Director or his/her designee may require submission of proof of the
State License issued to the selected contractors.
f. Ward Eight shall be responsible for contacting the Director or his/her designee to
arrange for obtaining all City and other approvals and/or permits required for
construction and completion of the Project.
g. Ward Eight shall be fully responsible for managing, monitoring, and scheduling
the construction of the Project, for ensuring compliance with the payment of
prevailing wages, if applicable, and for ensuring that all improvements are
completed properly and in conformance with the approved project.
h. Ward Eight shall make a good faith effort to use Evanston -based businesses as
frequently as is financially feasible when purchasing supplies and/or hiring
subcontractors and administrative services providers for the Project. Ward Eight
shall obtain three (3) estimates for the scope of work for the Tenant
Improvements and one (1) estimate must be obtained from an Evanston -based
contractor.
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i. Upon completion of the Project, Ward Eight shall notify the Director and request
inspection of the Project by the Director or his/her designee(s).
j. Ward Eight shall complete the Project no later than six (6) months after receiving
any building permit related to the Project.
k. After completion of the Project, Ward Eight shall submit to the Director or his/her
designee a report that includes the following:
Cover letter indicating the Project is completed and the Total Cost
Expenditures for the Project;
ii. All contractor invoices detailing the specific tasks completed in
accordance with approved Project;
iii. Unconditional lien releases; and
iv. Any additional material requested by the Director or his/her designee.
I. Ward Eight shall maintain the Property in compliance with all applicable
provisions of the Evanston City Code of 1979, as amended.
m. Ward Eight shall not be more than one hundred twenty (120) days in arrears with
regards to any City utility and/or service bills.
IV. THE CITY'S RESPONSIBILITIES
a. City shall use up to $100,000.00 (One Hundred Thousand and no/100 Dollars)
(the "Grant Amount") from the City's Howard Ridge TIF Fund for the Project.
b. The Director or his/her designee shall review Ward Eight's contractors' and
subcontractors' sworn statements and accompanying documents, and, if said
documents meet all terms, conditions, and obligations under this Agreement and
the TIF Guidelines for Eligible Project Costs, the Director or his/her designee
shall, in the ordinary course of business, submit payment to contractors and
subcontractors.
c. Within a reasonable time after Ward Eight notifies City of the completion of the
Project, the Director or his/her designee shall inspect the improvements to
ensure they were completed in accordance with approved Project and its
guidelines.
V. TIME OF PERFORMANCE
The Ward Eight shall complete the Project no later than six (6) months after receiving
any building permit related to the Project. Failure to complete the Project within six (6)
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,: c
months will result in Ward Eight's breach of this Agreement. Requests for additional
time and extensions in Project completion time will be granted, but only if submitted in
writing prior to the expiration of the Agreement.
VI. AMOUNT OF GRANT
The total amount of the Grant to be made by the City, pursuant to the terms and
conditions of this Agreement, shall not exceed $100,000.00 (One Hundred and no/100
Dollars) as approved by City Council as stated above.
VII. INSURANCE
a. During the entire period in which work on the Project is performed, the Ward
Eight shall obtain and maintain in full force and effect during said period the
following insurance policies: (i) Comprehensive General Liability Insurance in a
general aggregate amount of not less than $1,000,000, $1,000,000 Products and
Completed Operations Aggregate, and $1,000,000 for each occurrence.
b. All insurance policies shall name the City of Evanston, and their respective
elected officials, officers, employees, agents, and representatives as additional
insureds.
c. All deductibles on any policy shall be the responsibility of the primary holder of
such policy and shall not be the responsibility of the City.
d. Ward Eight shall provide evidence of required insurance to the Director before
execution of this Agreement.
VIII. OBLIGATION TO REFRAIN FROM DISCRIMINATION
a. Ward Eight covenants and agrees for itself, its successors and its assigns to the
Property, or any part thereof, that it will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual orientation,
marital status, national origin or ancestry, or age or physical or mental disabilities
that do not impair ability to work, and further that it will examine all job
classifications to determine if minority persons or women are underutilized and
will take appropriate affirmative action to rectify any such underutilization.
b. That, if it hires additional employees in order to perform this contract, or any
portion hereof, it will determine the availability of minorities and women in the
area(s) from which it may reasonably recruit and it will hire for each job
classification for which employees are hired in such a way that minorities and
women are not underutilized.
c. That, in all solicitations or advertisements for employees placed by it or on its
behalf, it will state that all applicants will be afforded equal opportunity without
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discrimination because of race, color, religion, sex, sexual orientation, marital
status, national origin, ancestry, or disability.
IX. NO AGENCY CREATED
The Ward Eight and any contractor, supplier, vendor or any third party hired by Ward
Eight to complete the Project are not agents of the City. Any provisions of this
Agreement that may appear to give the City any right to direct the Ward Eight
concerning the details of the obligations under this Agreement, or to exercise any
control over such obligations, shall mean only that the Ward Eight shall follow the
direction of the City concerning the end results of the obligations.
X. OWNERSHIP OF DOCUMENTS
All documents prepared and submitted to the City pursuant to this Agreement (including
any duplicate copies) shall be the property of the City. The City's ownership of these
documents includes use of, reproduction or reuse of and all incidental rights thereto.
XI. INDEMNIFICATION AND HOLD HARMLESS
To the maximum extent permitted by law, the Ward Eight agrees to and shall defend,
indemnify and hold harmless the City, and its respective officers, officials, employees,
contractors and agents from and against all claims, liability, loss, damage, costs or
expenses (including expert witness fees, reasonable attorneys' fees, and court costs)
arising from or as a result of the death of any person or any accident, injury, loss or
damage whatsoever caused to any person or property resulting or arising from or in any
way connected with the following, provided Ward Eight shall not be responsible for (and
such indemnity shall not apply to) any negligence or willful misconduct of the City, or
their respective officers, officials, active employees, contractors or agents:
a. The development, construction, marketing, use or operation of the Property by
the Ward Eight, its officers, contractors, subcontractors, agents, employees or
other persons acting on Ward Eight's behalf ("Indemnifying Parties");
b. The displacement or relocation of any person from the Property as the result of
the development of the Project on the Property by the Indemnifying Parties;
c. Any plans or designs for the Project prepared by or on behalf of Ward Eight
including, without limitation, any errors or omissions with respect to said
documents;
d. Any loss or damage to the City resulting from any inaccuracy in or breach of any
representation or warranty of Ward Eight, or resulting from any breach or default
by Ward Eight, under this Agreement; and
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e. Any and all actions, claims, damages, injuries, challenges and/or costs or
liabilities arising from the approval of any and all entitlements or permits for the
improvements by the City, and their respective officers, officials, employees,
contractors or agents.
The foregoing indemnity shall continue to remain in effect after the Completion Date or
after the earlier termination of this Agreement, as the case may be.
XII. DUTY TO DEFEND
Ward Eight further agrees that the hold harmless agreement in Article XI, and the duty
to defend the City, and their respective officers, officials, employees, contractors and
agents, require the Ward Eight to pay any costs that the City may incur which are
associated with enforcing the hold harmless provisions, and defending any claims
arising from obligations or services under this Agreement.
XIII. COMPLIANCE WITH LAW
Ward Eight agrees to comply with all the requirements now or hereafter in force, of all
municipal, county, state and federal authorities, pertaining to the development and use
of the Property and construction of the Project, as well as operations conducted on the
Property. The Director or his/her designee will not issue any Grant to the Ward Eight if
there is in violation of any law, ordinance, code, regulation, or permit.
XIV. TERMINATION
If Ward Eight shall fail to cure any Event of Default upon notice and within the time for
cure provided for herein, the City may, by written notice to the Ward Eight, terminate
this Agreement. Such termination shall trigger the "Repayment of Loan" defined herein.
Ward Eight may not terminate this Agreement without the express written consent of
City.
XV. NOTICES
All notices permitted or required hereunder must be in writing and shall be effected by
(i) personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or
(iii) reputable same -day or overnight delivery service that provides a receipt showing
date and time of delivery, addressed to the following parties, or to such other address
as any party may, from time to time, designate in writing in the manner as provided
herein:
To City: City of Evanston
Director of Community & Economic Development
2100 Ridge Avenue
Evanston, IL 60201
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Telephone: 847.448.8100
With a copy to: City of Evanston
Attn: Corporation Counsel, W. Grant Farrar
2100 Ridge Avenue, Room 4400
Evanston, IL 60201
Telephone: 847.866.2937
To Ward Eight: Ward Eight, LLC
629 Howard Street
Evanston, IL 60202
Attn: Anne Carlson, Manager
Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service to the addresses above, and shall
be deemed received on the third day from the date it is postmarked if delivered by
registered or certified mail.
XVI. DEFAULT;, REMEDIES; DISPUTE RESOLUTION
a. Notice of Default.
In the event of failure by either party hereto substantially to perform any material
term or provision of this Agreement, the non -defaulting party shall have those
rights and remedies provided herein, provided that such non -defaulting party has
first provided to the defaulting party a written notice of default in the manner
required herein identifying with specificity the nature of the alleged default and
the manner in which said default may be satisfactorily be cured.
b. Cure of Default
Upon the receipt of the notice of default, the alleged defaulting party shall
promptly commence to cure, correct, or remedy such default within 90 days and
shall continuously and diligently prosecute such cure, correction or remedy to
completion.
c. City Remedies; Repayment of Loan.
In the event of a default by Ward Eight of the terms of this Agreement that has
not been cured within the timeframe set forth in Paragraph b above, the City, at
its option, may terminate this Agreement or may institute legal action in law or in
equity to cure, correct, or remedy such default, enjoin any threatened or
attempted violation, or enforce the terms of this Agreement. In the event of a
default by Ward Eight that occurs after the City has disbursed any Grant funds,
the total of such disbursement(s), plus any accrued interest, shall become
immediately due and payable.
_10-
All payments shall be first credited to accrued interest, next to costs, charges,
and fees which may be owing from time to time, and then to principal. All
payment shall be made in lawful money of the United States. Payments shall be
made to City at the address set forth in Article XI herein or at such other address
as City may direct pursuant to notice delivered to Ward Eight in accordance with
Article XV.
d. Ward Eight's Exclusive Remedies.
The parties acknowledge that the City would not have entered into this
Agreement if it were to be liable in damages under, or with respect to, this
Agreement or any of the matters referred to herein, including the Project, except
as provided in this Article. Accordingly, Ward Eight shall not be entitled to
damages or monetary relief for any breach of this Agreement by the City or
arising out of or connected with any dispute, controversy, or issue between Ward
Eight and the City regarding this Agreement or any of the matters referred to
herein, the parties agreeing that declaratory and injunctive relief, mandate, and
specific performance shall be Ward Eight's sole and exclusive judicial remedies.
XVII. APPLICABLE LAW
The internal laws of the State of Illinois without regard to principles of conflicts of law
shall govern the interpretation and enforcement of this Agreement.
XVI11. CONFLICT OF INTEREST
a. No member, official, or employee of the City shall have any personal interest,
direct or indirect, in this Agreement, nor shall any such member, official, or
employee participate in any decision relating to the Agreement which affects his
personal interests or the interests of any corporation, partnership, or association
in which he/she is, directly or indirectly, interested.
b. The Ward Eight warrants that it has not paid or given, and will not pay or give,
any third person any money or other consideration for obtaining this Agreement.
XIX. NON -LIABILITY OF CITY OFFICIALS AND EMPLOYEES
No member, official, agent, legal counsel or employee of the City shall be personally
liable to the Ward Eight, or any successor in interest in the event of any default or
breach by the City or for any amount which may become due to Ward Eight or
successor or on any obligation under the terms of this Agreement.
XX. BINDING EFFECT
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This Agreement, and the terms, provisions, promises, covenants and conditions hereof,
shall be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns.
XXI. AUTHORITY TO SIGN
The Ward Eight hereby represents that the persons executing this Agreement on behalf
of Ward Eight have full authority to do so and to bind Ward Eight to perform pursuant to
the terms and conditions of this Agreement.
XXII. COUNTERPARTS
This Agreement may be executed by each party on a separate signature page, and
when the executed signature pages are combined, shall constitute one single
instrument.
XXIII. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
a. This Agreement and the Exhibits and references incorporated into this
Agreement express all understandings of the parties concerning the matters
covered in this Agreement. This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and supersedes all negotiations
or previous agreements between the parties with respect to all or any part of the
subject matter hereof.
b. All waivers of the provisions of this Agreement must be in writing and signed by
the appropriate authorities of the City or the Ward Eight, and all amendments
hereto must be in writing and signed by the appropriate authorities of the City
and the Ward Eight.
XXIV. NON -ASSIGNMENT
The Ward Eight shall not assign the obligations under this Agreement, nor any monies
due or to become due, without the City's prior written approval, and Ward Eight and
Ward Eight's proposed assignee's execution of an assignment and assumption
agreement in a form approved by the City. Any assignment in violation of this paragraph
is grounds for breach of this Agreement, at the sole discretion of the City Manager. In
no event shall any putative assignment create a contractual relationship between the
City and any putative assignee.
XXV. NO WAIVER
No failure of either the City or the Ward Eight to insist upon the strict performance by
the other of any covenant, term or condition of this Agreement, nor any failure to
exercise any right or remedy consequent upon a breach of any covenant, term, or
condition of this Agreement, shall constitute a waiver of any such breach or of such
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18-R-12
covenant, term or condition. No waiver of any breach shall affect or alter this
Agreement, and each and every covenant, condition, and term hereof shall continue in
full force and effect.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the City, and the Participant have signed this Agreement as
of the dates set opposite their signatures.
THE CITY OF EVANSTON,
an Illinois home rule municipal corporation
By:
Its: City Manager, Wally Bobkiewicz
WARD EIGHT LLC,
an Illinois limited liability company
il
By: (�� Y b-� ,' / — —
Its: Man nne Ca�ha��C���
By: -
Its: Manager, Cody Modeer
ATTACHMENT:
Exhibit A — Legal Description of Property
Return this form to:
City of Evanston
Director Community &
2100 Ridge Avenue
Evanston, IL 60201
Economic Development
—14—
Exhibit A:
LEGAL DESCRIPTION cFPROPERTY
LOT sAND THE EAST &02FEET 0FLOT 5|wBLOCK 1|NNILES H0VVARo
TERMINAL ADDITIONAL, BEING ASUBDIVISION 0rTHE SOUTH O.osCHAINS (412
>6FEET) 0FTHAT PART OpTHE NORTHEAST %OFSECTION uO.TOWNSHIP 41
NORTH, RANGE 14EAST OFTHE THIRD PRINCIPAL MERIDIAN, LYING WEST Or
THE RIGHT 0FWAY DpTHE CH|CAo0AND NORTH WESTERN RAILROAD |N
COOK COUNTY, |LL|m0|S.
Real property address: oae-6a1Howard Street, Evanston, Illinois, 0UoUu
PIN: 11
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