92-187 ) fi7
RESOLUTION
AUTHORIZING EXECUTION OF A GROUND LEASE AGREEMENT
( 156-158 Division Street)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Larry L. Rice, City Manager, be and is hereby
authorized and directed to execute a written Ground Lease
Agreement with Center City Joint Venture for the redevelopment
of the property commonly known as 156-158 Division Street,
Elgin, Illinois, a copy of which is attached hereto and made a
part hereof by reference.
s/ George VanDeVoorde
George VanDeVoorde, Mayor
Presented: July 8, 1992
Adopted: July 8, 1992
Vote: Yeas 7 Nays 0
Recorded:
Attest:
r
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
em.
RESOLUTION
AUTHORIZING EXECUTION OF A GROUND LEASE AGREEMENT
(156-158 Division Street)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Larry L. Rice, City Manager, be and is hereby
authorized and directed to execute a written Ground Lease
Agreement with Center City Joint Venture for the redevelopment
of the property commonly known as 156-158 Division Street,
Elgin, Illinois, a copy of which is attached hereto and made a
part hereof by reference.
sl George VanDeVoorde
George VanDeVoorde, Mayor
Presented: July 8, 1992
Adopted: July 8, 1992
Vote: Yeas 7 Nays 0
Recorded:
Attest:
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
14694/001
DEVELOPMENT AGREEMENT
This Development Agreement (this "Agreement") is made and
entered into as of the 8th day of July, 1992, by and between:
Center City Joint Venture, an Illinois general partnership
(the "Developer") consisting of North West Housing
Partnership Development Corporation, an Illinois not-for-
profit corporation ("North West") and Merriam/tuba, Ltd., an
Illinois corporation ("M/Z")
and
The City of Elgin, an Illinois municipal corporation (the
"City") .
RECITALS:
A. North West Housing Partnership, (an affiliate of North
West) and Landmark Partnership, Donald M. Prigge, Ronald R.
Reich, Kenneth Timke and John Postma (collectively, the "Seller")
have entered into an option for a real estate sales contract
dated December 13, 1991 and assigned to the Developer (the
"Option") providing for the Seller to sell and Developer to
purchase certain real estate legally described in Exhibit A to
this Agreement (the "Real Estate") and all improvements and
personal property located thereon consisting of a 4-storied
residential building and related commercial facilities, (the
"Improvements") currently known as the Douglas Hotel located in
Elgin, Illinois, together with rights under a certain Vacant Lot
Lease Agreement dated November 30, 1985, between Jerome Roth
(lessor and predecessor in interest to Seller) and Independence
Development Corp. (as lessee) (the "Vacant Lot Lease Agreement").
The Real Estate and the rights, title and interests of the Seller
under the Vacant Lot Lease Agreement are referred to herein as
the "Land". The Land and all Improvements located or to be
located thereon are referred to as the "Property".
B. Developer desires to acquire the Property and
concurrent therewith to sell the Land to the City and enter into
a lease for the Land on terms as described herein.
C. Developer, as a condition to the sale and lease back of
the Land, desires to carry out certain rehabilitation, remodeling
and repair of the Improvements pursuant to this Agreement, and as
generally described in the Project Proposal dated May 1, 1992
(the "Proposal") delivered to the City and as described in
Exhibit B attached hereto. The Project Proposal is for
R
developing 45 residential housing units, designed for the
elderly, who qualify as low or lower income families under the
Section 42 of the Internal Revenue Code (the "Code"). The
Project will be designed to give a preference to residents of the
City of Elgin to the extent permitted by the Code and any
applicable law. The leasing of the Land, and ownership,
rehabilitating, remodeling and repairing of the Improvements and
financing of all of the foregoing is herein referred to as the
"Project".
D. The Proposal is intended to meet in part the City of
Elgin downtown redevelopment goals including bringing about
additional investment and other public policy goals. The
Proposal is expected to have a total cost in excess of $2.3
million dollars and is intended to serve residents of the age of
62 and older without children. The Improvements will remain
taxable subject to real estate taxes and assessments. The
proposed rents have been researched and found to be within the
City of Elgin market rates. The completed Project will include
uniform window treatments, resident management and on-going
services to ensure maintenance in a first class condition. In
addition, the management agent will produce tenant selection
criteria consistent with high quality management.
E. Developer has advised the City of the Developer's
intent to form an Illinois limited partnership (the "Project
Partnership"), in which Developer shall act as the general
partner, for the purpose of owning and carrying out the
Development, and to admit limited partners thereto to provide
capital to meet the equity required for financing the Project
(the "Equity"). The City acknowledges that the Developer intends
to qualify the Improvements for low income housing tax credits,
available under the Code. As a condition to such qualification
the City and Developer understand that the agency allocating the
tax credits is Illinois Housing Development Authority ("IHDA11)
who will require restrictive use covenants be recorded against
the Property as required by the Code.
F. To provide financing for the Project, Developer intends
to obtain mortgage financing from lenders (the "Lenders") in an
amount which will be sufficient with the Equity, to pay for the
costs and expenses of the Project (the "Project Financing").
G. Developer and City desire to set forth the terms,
conditions and other provisions for carrying out the terms set
forth in these recitals and other matters.
NOW, THEREFORE, in consideration of the premises set forth
above, and the mutual obligations of the parties set forth below,
the parties do hereby agree to the following terms.
1. Warranties and Representations.
1.01 Developer warrants and represents to the City that
Developer consists of North West and M/Z as general partners and
has no other partners, Developer is a joint venture partnership
duly organized and existing under the laws of the State of
Illinois; Developer has the requisite legal power and authority
to enter into this Agreement and to perform all of its
obligations hereunder; and that neither the execution of this
Agreement nor the performance by Developer of its obligations
hereunder does or will violate any applicable law, decree or
order of any court or constitute a default under any agreement to
which Developer or any of North West or M/Z is a party or by
which Developer or any such corporation is bound.
1.02 Developer represents and warrants to the City that no
other party has any claim, right, title or interest in the
Project or in or under this Agreement or any other agreement
delivered or to be delivered pursuant thereto, except as approved
by the City.
1.03 City warrants and represents to the Developer that it
is a home rule unit of government under and pursuant to Section 6
of Article VII of the Constitution of the State of Illinois and
has the authority to act pursuant to the powers granted by said
Constitution; and that the City has the requisite power and
authority to enter into this Agreement and to perform its
obligations thereunder.
1.04 Each of Developer and City represents and warrants that
it has not dealt with nor does it have knowledge of any broker or
other party who has or may have any claim against City or
Developer for a brokerage commission or finder's fee or like
payment arising out of or in connection with the transactions
provided herein, except those parties listed in paragraph R-ll of
the Option whose commissions and fees are to be paid by Seller.
1.05 City warrants and represents to the Developer as
follows:
(a) City has not received any notice and does not have
any knowledge of condemnation proceeding, spending, or
declaration of taking, or other similar instrument filed
against the Property, nor does City have any notice or
knowledge that any such proceeding is threatened or will
take place or such instruments be filed, nor is there any
litigation or proceeding pending, which affects the
Property;
(b) City has not received any notice of any violations
and has no knowledge of any suits or judgments now pending
relating to zoning, fire, building, safety, air pollution or
health codes with respect to the Property except as set
forth in Exhibit C attached hereto; and
(c) No person, firm, corporation or other entity has
any right or option from the City pertaining to the
Property.
1.06 Between the date hereof and commencement of
construction of the Project, City shall:
(a) acquire the Land concurrent with Developer's
purchase of the Property under the Option and enter into the
Ground Lease hereinafter described;
(b) after acquisition of the Land from the Developer,
permit Developer and its counsel, accountants, architects,
engineers and other representatives, during normal business
hours, to make any and all inspections, tests, or studies of
the Property including, without limitation, such inspections
and tests as Developer shall deem desirable in order to
ascertain site and soil conditions and the truth and
accuracy of any representation herein contained, provided
Developer shall not interfere with the normal operations of
the City and shall indemnify the City against all costs,
loss or liability which the City may incur by reason of
Developer's exercise of the rights granted in this
Subsection (a);
(c) make available to Developer all available
engineering reports, if any, relating to the Property and
all available past records, if any, for indicating the
condition of the Property;
(d) not hereafter grant any other rights or options to
acquire the Property or develop the Project during the term
of this Agreement, excluding rights or options which are
provided in any of the lease or agreements to be delivered
in accordance with the provisions of this Agreement or those
which may become effective solely at and upon the
termination of this Agreement.
2. Agreement to Develop.
2.01 City and Developer hereby agree to perform all of their
respective obligations and covenants herein provided in order to
develop and improve the Property substantially in accordance with
the Proposal, subject, however, to the terms, conditions and
provisions contained in this Agreement. Notwithstanding the
foregoing or any other provisions of this Agreement,nothing
herein contained shall create a partnership or joint venture
between the parties or constitute either party the agent of the
other. To the extent either party is required to perform any
services hereunder, it shall be deemed to perform them not as a
partner, joint venturer or agent but solely as an independent
contractor.
2.02 The development of the Improvements authorized by this
Agreement shall conform substantially to the description
contained in the Proposal. The design and composition of the
Improvements contained in the Proposal requires the granting by
the City of certain variations and special use permits under the
applicable zoning ordinances of the City. The granting of such
variations and of such special use permits are not deemed an
obligation of the City, but are conditions precedent to the
obligation of the parties to proceed, as provided in Article 7
below.
2.03 Fee simple title to the Property is vested in Seller,
subject only to the exceptions contained in the Schedule attached
hereto as Exhibit D (the "Exceptions") . Such title as to the
Land shall be vested in the City following a sale of the Property
to the Developer and a subsequent sale of the Land to the City by
the Developer, notwithstanding that the Developer shall continue
to own and shall construct the Improvements and retain rights and
obligations under the Ground Lease. Title to the Land shall be
subject to the Exceptions, and to the Ground Lease, hereinafter
provided.
2.04 The portion of the Property to be owned by the
Developer shall consist of 45 residential rental dwelling units
contained in the 4-storied residential structure, and a leasehold
interest of the Land under the Ground Lease from the City.
3. Real Estate Sale Contract.
3.01 The parties hereto have agreed that concurrent with,
and conditioned upon, Developer's acquisition of the Property
from Seller, Developer shall sell the Land to the City for the
purchase price of One Hundred Forty Five Thousand Dollars
($145,000) plus or minus prorations.
3.02 The Developer may call for the consummation of the sale
of the Land to the City and leaseback under the Ground Lease to
be held concurrent to Developer's acquisition of the Property
from Seller. The closing of the foregoing transactions shall
occur prior to the closings of the Project Financing and the
parties recognize that Developer shall be entitled to apply the
City's purchase price in order to close both of the transactions
simultaneously.
3.03 The Developer and City shall concurrent with the
execution of this Agreement enter into a contract for the
acquisition of the Land (the "Acquisition Contract")
substantially in the form attached hereto as Exhibit E.
4. Ground Lease
4.01 In order to permit the carrying out of the Project as a
single residential-use structure, the City, as landlord, and the
Developer, as tenant, shall at the time the City acquires title
to the Land enter into a ground lease (the "Ground Lease") as
follows:
The Ground Lease shall lease and demise the Land to the
Developer for a term of 51 years, shall provide for rent at One
Dollar ($1.00) per year and shall be in the form attached hereto
as Exhibit F. In accordance with the provisions of the Ground
Lease, Developer, as tenant, shall be required to rehabilitate,
repair and restore the Improvements and, upon completion thereof,
to make the same available as rental units to low and lower
income elderly persons, subject to compliance with the Code. In
the event of a default of Developer as tenant under the Ground
Lease, the City as tenant may exercise certain remedies, subject
however to the rights of the Lenders to acquire the Developer's
rights, title and interest as tenant under the Ground Lease in
accordance with the provisions thereof. Upon expiration or other
termination of the Ground Lease, title to the Improvements shall
become vested in the City. The Ground Lease shall further
provide that the same shall be and remain subordinate and subject
to the restrictive use and regulatory agreement of IHDA, and
those restrictions of the Code pertaining to the low income
housing tax credits.
5. Financing.
5.01 Following the approval of the variations and additional
zoning relief by the City referred to above, Developer shall in
good faith continue to use its best efforts to obtain from
Lenders binding written commitments for construction and long-
term financing of the Project (which may be by means of one or
multiple loans) . Such financing shall be acceptable to Developer
if the terms and conditions thereof shall be not less favorable
to Developer than those projected in Developer's Proposal. True
and complete copies of such commitments shall be submitted
promptly to the City. Should, despite its best efforts,
Developer be unable within 150 days, after the said date of the
approval by the City of said variations and zoning relief, to
obtain binding written commitments for such financing from
Lenders, either the City or Developer may, at its election,
terminate this Agreement by written notice given to the other
party within 10 days after the expiration of such 150 days,
subject to the provisions of Paragraph 7 below. Notwithstanding
the foregoing, said 150-day period may be extended by an
additional 30 days at the option of Developer, provided that,
within 90 days after the date of approval referred to in the
first sentence of this Section 5.01, Developer demonstrates to
the City's reasonable satisfaction that (a) design and
development drawings for the Project have been completed and
submitted to prospective Lenders acceptable to the City and (b)
an application for the described financing has been submitted to
and is being processed by such Lenders.
5.02 The City has, pursuant to ordinances adopted, reserved
sufficient funds to acquire the Land and pay all other costs, if
any, which the City shall be obligated to pay in connection with
the construction and financing of the Project. At the written
request of any Lender, City shall confirm to such Lender the
matters set forth in this Section 5.02.
6. Construction.
The construction of the Project shall be effected
substantially in accordance with the following provisions:
6.01 Developer shall submit to the City a plat and detailed
schematic plan for the Project, which plat and plan shall be
incorporated in the Proposal, and show, among other things, the
exact dimensions of structures and their component parts, the
exact number and location of all dwelling units, parking stalls,
driveways, sidewalks, entrances, exits, landscaping and other
appurtenances and all other data and information required by the
City's zoning administrator to determine compliance of such plan
with applicable City codes. Copies of such plat, plan and
information will be submitted simultaneously to the City Manager
and to the City zoning administrator, and subsequently to the
City Council. The zoning administrator, the Plan Commission and
the City Council heretofore have approved an amendment to the
Planned Unit Development for the Project.
6.02 In addition to and independent of the approvals by the
zoning administrator, the Plan Commission and the City Council
referred to in the preceding Section 6.01 the appropriate City
departments shall have the right to approve design development
plans and specifications for the Project for the purpose of the
issuance of appropriate construction permits. Approval or
disapproval of all the matters described in this Section 6.02 by
the City, unless approved earlier, shall be effected not later
than July 20, 1992 ("Final Approval Date"), provided that the
materials and information required for such complete approval
shall be submitted in writing to the City not later than 25
working days prior to such date. Approval of individual,
specific matters shall be given or denied within 15 working days
after written submission thereof is made to the City. Failure of
the City to approve by the Final Approval Date, the plans and
specifications for the Project shall, at the election of either
the City Manager or Developer, constitute a failure of condition
as provided in Article 7.
6.03 Not later than July 20, 1992, the City shall be
furnished by Developer with (i) full and complete final plans and
specifications for the Project (the "Plans and Specifications")
which shall conform to the Proposal and to the approvals and
requirements set forth in the foregoing Sections 6.01 and 6.02.
6.04 At all times the costs of the Project to the Developer,
including but not limited to real estate taxes, assessments, and
insurance premiums, shall be paid or caused to be paid by
Developer in a timely manner so that neither the City's fee
estate nor the Developer's ground leasehold estate shall be or
become subjected to mechanic's liens or claims or other
unpermitted claims, liens or exceptions (i.e., claims, liens or
exceptions other than those listed on Exhibit D attached hereto),
except liens against Developer's leasehold estates and the
Improvements permitted under the provisions of this Agreement.
6.05 Provided that all conditions set forth in Paragraph 5
have been complied with in a timely manner, the Developer shall
enter into a single fixed-price construction contract for the
entire Project with a general contractor, which contractor shall
have been approved by the City as aforesaid and shall cause such
contractor to perform its obligations under this general
construction contract in a timely, continuous, efficient and
workmanlike manner. The general contract shall provide, among
other things, for construction of the Project in accordance with
the Plans and Specifications, for compliance with all applicable
laws, codes and ordinances, for the customary performance and
labor payment bonds (or letters of credit), and for builder's
risk, public liability, worker's compensation and such other
insurance, in amounts and with carriers as would be customary for
this Project and as required by the Lenders. All such bonds and
insurance policies shall name the City as an additional party
insured, and Developer shall, upon request, provide the City with
appropriate certificates evidencing such bonds and insurance.
Commencement of construction pursuant to such construction
contract shall begin not later than 90 days after the issuance of
binding written commitments for financing as provided in Section
5.01 above, subject to the extension therein provided.
6.06 For purposes of real estate taxation, appropriate
subdivisions shall be effected as soon as practicable by
appropriate application to the taxing authorities, for the
purpose and with the result that the leasehold estate under the
Ground Lease and Improvements owned by Developer or its
successors in interest shall constitute a separate tax parcel or
parcels, and all taxes and assessments assessed thereon from the
commencement of the leasehold term shall be paid by the owners
thereof. The parties shall jointly make such application for
subdivisions and shall cooperate in order to obtain such
subdivisions.
6.07 Prior to commencement of construction, Developer shall
deliver to the City, in addition to the documents hereinabove
provided, such certificates, information and documents as the
City shall reasonably require to effectuate or evidence the
transactions provided in this Agreement.
6.08 Whether or not any contractor, supplier, consultant,
insurance carrier or bonding company engaged by or contracted
with Developer (and whether or not approved by the City) shall
perform its obligations under its respective contract, Developer
hereby undertakes and agrees that the Project shall be fully
completed in accordance with the Plans and Specifications not
later than July 31, 1993, subject only to Unavoidable Delays.
For purposes of this Agreement, Unavoidable Delays mean delays
beyond the control of Developer due to a strike, lock-out, act of
God, unavailability of labor or materials, enemy action, civil
disorder, default of the City, change orders in the general
construction contract for the Project caused by events beyond
Developer's control, injunctive relief of any court, or acts of
any governmental body or agency except those acts taken as a
result of Developer's fault or negligence.
6.09 The City shall provide incentives and direct assistance
to Developer for carrying out the Project, and shall enter into
an agreement for such incentives and assistance prior to the
Developer obtaining Project financing, in the following areas:
(a) The City will complete the purchase of the Land
timely to meet all requirements of the Option;
(b) The City will attempt to timely acquire or
condemn, in order to subsequently make available
to Developer, the fee simple interest in the land
covered by the Vacant Lot Lease Agreement and
remove the sign located thereon;
(c) The City shall landscape the alley adjacent to the
Property pursuant to Developer's landscape plan
provided such plan is reasonably acceptable to the
City;
(d) The City shall undertake such other improvements
directly benefiting the Property as may be
reasonably acceptable to the City, such as
replacement of perimeter sidewalk, tree plantings
in parkway areas, replacement and repair of curbs
and curb cuts; and grant a waiver of the building
permit fees imposed by the City provided however,
the Developer will pay the impact fees of the City
of Elgin as required by applicable ordinances;
(e) The parties intend that the Improvements but not
the Land shall be subject to real estate taxes and
assessments, all of which shall be the
responsibility of the Developer. The City shall
petition for a real estate tax exemption for the
Land, and if such exemption is not granted, shall
assist Developer in achieving a reasonable
proration of real estate taxes and assessments
relative to the Land under the Ground Lease and
the Improvements; and
(f) The City shall provide to the Project, at no
additional charge, thirty parking spaces for
automobiles at City owned or controlled sites in
the most immediate vicinity of the Property.
7. Conditions to the Obligations of the Parties.
The obligations of the City or Developer to proceed with the
development and construction of the Project shall be conditioned
on the timely occurrence of the following events.
7.01 Not later than August 1, 1992 (but subject to the
extension provided in Section 5.01), the Developer shall have
obtained and furnished to the City true and complete copies of
binding written commitments for financing.
7.02 Not later than August 15, 1992, the City Manager shall
have reviewed the final budget for the Project, provided that
such budget amount may be subject to variance to the extent that
construction interest shall be at a variable rate under the terms
of the approved construction loan commitment obtained by
Developer, but only to the extent of any net variance. After
such date and approval by the City, all material changes in the
budget for the Project (including but not limited to terms of
additional financing) shall require approval of the City, which
approval shall not be unreasonably withheld or delayed.
Upon the failure of the timely occurrence of any of the events
provided in this Article 7, either the City or the Developer may,
at its option exercised by written notice to the other party
given within 10 days after the expiration of the time limit for
such event, terminate this Agreement. In any event, upon the
failure of any such condition set forth in this Article 7 and the
election of either party to terminate this Agreement, neither
party shall thereafter have any further rights or obligations
hereunder or under any documents executed and delivered in
accordance with the provision hereof, except the Developer and
the City shall terminate the Ground Lease if then in effect.
8. Remedies.
In the event of a default by Developer under any
representation, warranty, covenant or provision of this
Agreement, the Ground Lease, or the Acquisition Contract, and
after any applicable cure period has expired, the City, shall
have the right to terminate all rights of Developer under this
Agreement, the Ground Lease, and if applicable the Acquisition
Contract and the right of re-entry and possession under the
Ground Lease, as its sole and exclusive remedies. Neither the
Developer, nor North West or MJZ, shall be personally liable for
the payment or performance under this Agreement, the Ground Lease
or Acquisition Contract, it being acknowledged that the City's
exclusive rights and remedies hereunder shall be as specified in
the preceding sentence. In the event that such termination shall
occur at any time after Developer shall have entered into
possession of the Land, Developer shall promptly surrender
possession of and vacate the Land promptly upon demand by the
City, subject only to such rights as the City may have granted to
the Lenders under the Ground Lease, or under any other agreement.
In such event, moreover, subject to said rights of the Lenders,
Developer shall assign and deliver to the City, without any
additional cost or consideration to the City, all of Developer's
rights, title and interest in all of the plats, schematic plans,
designs, projections, plans and specifications for the Project
and all contracts with architects, engineers, consultants and
contractors furnishing labor or materials to the Project,
together with true and complete copies of such plans,
specifications and contracts.
9. General Provisions.
9.01 All warranties and representations contained in this
Agreement shall survive the closing and performance of the
transactions therein provided.
9.02 Whenever the consent or approval of the City is
required under the provisions hereof, such consent or approval
shall be deemed to have been granted if given in writing by the
City Manager on behalf of the City, provided that with respect to
matters where the approval of the City Council, a named City
agency or other City official is specifically required by the
terms of this Agreement or by law, the approval must be given by
such agency or official.
9.03 Neither the City nor Developer shall have the right to
assign this Agreement or any of its rights hereunder without the
prior written consent of the other party provided the foregoing
shall not restrict Developer's assignment of this Agreement to
the Project Partnership, nor shall there be a restriction on
assignments of rights in the leases and agreements to be
delivered in accordance herewith, to the Lender or Lenders, or
otherwise to the extent permitted by the terms thereof. Such
prohibited assignment by Developer of its rights hereunder shall
include a prohibition of the transfer of the joint venture
partner interests in Developer, and the transfer of the corporate
shares or the shares of corporate partners. Notwithstanding the
foregoing, Developer may assign its rights and interest under
this Agreement to the Project Partnership, provided the Project
Partnership shall expressly assume in writing all obligations
under this Agreement, and a true and complete copy of such
assignment and assumption shall be delivered to the City prior to
the effective date of such assignment.
9.04 This Agreement (together with the subsidiary agreements
to be delivered pursuant thereto) constitutes the entire
agreement between the parties hereto with respect to the subject
matter thereof and superseded and extinguishes all of the
provisions contained in any prior agreements between the same
parties. This Agreement shall survive the execution and
delivery of the subsidiary agreements provided by the terms of
this agreement, including, without limitation, the agreements the
forms of which are attached hereto as Exhibits E, and F. In the
event of any inconsistency between the terms of this Agreement
and the terms of any such subsidiary agreement (including,
without limitation, the rights of a leasehold mortgagee granted
under the Ground Lease), the terms of such subsidiary agreement
shall govern. This Agreement may not be modified or amended
except by a writing executed by the parties hereof.
9.05 This Agreement shall be governed by and construed in
accordance with the laws of Illinois.
9.06 This Agreement and all covenants, terms and provisions
contained therein shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns.
9.07 Each of the parties agrees that it will execute and
deliver or cause to be executed and delivered such additional
certificates, documents and instruments (not inconsistent with
this Agreement) or the leases and agreements required to be
delivered in accordance therewith which the other party may
reasonably require and are necessary to effectuate the
transactions herein provided.
10. Definitions.
The terms defined in this Paragraph shall, for all purposes
of this Agreement, have the meanings herein specified:
"Acquisition Contract" shall mean the contract referred to
in Section 3.03 and shall be substantially in the form attached
as Exhibit E.
"City" whether used as a noun or adjective, shall mean the
City of Elgin, Illinois.
"Developer" shall mean Center City Joint Venture or
permitted assignee thereof.
"Ground Lease" shall mean the long-term lease of the Land
which is more fully described in Section 4.01 and is in the form
attached as Exhibit F.
"Land" is the parcel of Real Estate and rights under the
Vacant Lot Lease Agreement referred to in Recital A.
"Landlord" and "Tenant11 shall have the same meanings as
"lessor" and "lessee" respectively.
"Plans and Specifications" shall have the meaning described
in Section 6.03.
"Project" shall have the meaning set forth in Recital C of
this Agreement.
"Proposal" shall have the meaning described in Recital C.
11. Notices.
All written notices and demands of any kind, which either
party may be required or may desire to serve upon the other party
in connection with this Agreement, may be served by personal
service, or as an alternative to personal service, by certified
mail, return receipt requested. Any such notice or demand os
served by certified mail shall be addressed to the party to be
served at the address set forth opposite the name of such party
at the end of this Agreement and shall be deemed complete and
effective two business days after the day of mailing. A change
in any address may be effected by the appropriate party serving
notice on the other in the manner herein provided.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date set forth above.
CITY: DEVELOPER:
CITY OF ELGIN CENTER CITY JOINT VENTURE
By: Merriam/Zuba, Ltd.
By: t By: (I- �
Its: elij Magas , Henry)Z ba President
Address for Notices Address for Notices
City of Elgin 305 South Green
150 Dexter Court Chicago, Illinois 60605
Elgin, Illinois 60120 Attention: Mr. Henry Zuba
Attention: City Manager
with a copy to: with a copy to:
City of Elgin Keck, Mahin & Cate
150 Dexter Court 233 South Wacker Drive
Elgin, Illinois 60120 Suite 8300
Attention: Michael Gehrman, Esq. Chicago, Illinois 60606
Assistant Corporation Counsel Attention: Mark W. Burns, Esq.
EXHIBITS
Exhibit A: Legal Description of the Land
Exhibit B: The Proposal
Exhibit C: Notices Affecting the Property
Exhibit D: Exceptions Affecting the Property
Exhibit E: Acquisition Contract
Exhibit F: Ground Lease
(14694.agt)
EXHIBIT A
SCHEDULE A
DOUGLAS HOTEL
156-158 DIVISION $MET
ELGIN, ILLINOIS
LEGAL DESCRIPTION:
THAT PART OF LOT I LYING EASTERLY OF THE EASTERLY LINE OF THE RIGHT
OF WAY OF THE CHICAGO AND NORTHWESTERN
WESTERLY 50 FEET OF THE NORTHERLY RAILROAD COMPANY (EXCEPT THE
35 FEET OF SAID LOT), ALSO ALL
01 LOT 2 AND THE WEST 5 FEET OF LOT 3, ALL IN BLOCK 2 OF S.N.
DEXTER'S ADDITION To ELGIN IN THE CITY OF ELGIN, KANE COUNTy,
ILLINOIS.
EXHIBIT B
v
CENTER CITY PLACE
Elgin, Illinois
a North West fiHousingPartnership development
North West Housing Partnership
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CENTER CITY PLACE
toposed Project
The redevelopment of the Douglas Hotel at 156-158 Division Street
in Elgin,Illinois.
It is proposed that the property be acquired and rehabilitated to
provide 45 apartments for senior citizens aged 62 years and older.
Project Name
Center City Place-Elgin,Illinois
Development Cost
The North WestHousingPartnership estimates the development
of Center City Place to cost approximately$2.4 million.
!Development Feature
Center City Place will feature:
® 35 one-bedroom apartments at monthly rents of$430.00
♦ 9 studio apartments at monthly rents of$385.00
♦ 1 apartment manager's unit
♦ On-site management
♦ New kitchens and appliances in every apartment
® New bathrooms in every apartment
® New heating and air conditioning
♦ Controlled access to building
♦ Closed circuit TV monitors
♦ Restored lobbv area
♦ Community/Activity room
® Elevator
® TV satellite dish
♦ Laundry facilities
CENTER CITY PLACE
Development Team
For Center City Place to become a reality,it will require a joint effort
on the part of the City of Elgin and the North WestHousing
Partnership.
Sponsors:The City of Elgin and North WestHousingPartnership.
General Partner:A subsidiary of North WestHoaskgParwership,
an Illinois not-for-profit corporation.
T.imited Partner:Chicago area corporations investing through the
Chicago Equity Fund.
Architect:Dahlquist&Lutzow Architects,Ltd.
General Contractor:to be named
Property Manager:to be named
Benefits
The transformation of the dilapidated Douglas Hotel into
aesthetically pleasing Center City Place will produce numerous
benefits,including:
♦ Provision of 45 units of completely rehabilitated, affordable
housing for Elgin's senior citizens.
♦ Elimination of a longstanding eyesore and safety hazard in
downtown Elgin.
♦ Creation of a cornerstone of downtown redevelopment, an
example of new investment in the downtown area.
♦ Attraction of stable residents to live in the downtown area.
♦ Addition of new property tax revenue for the City of Elgin and
other taxing bodies.
Projected Schedule
Closing and start of construction:June 1,1992
Completion of construction:March 1,1993
CENTER CITY PLACE
Sources of Funds
Center City Place will be funded in the following manner...
$984,000 Equity provided by Chicago Equity Fund
(generated by Low Income Housing Tax Credits)
$775,000 First Mortgage provided by a private lender
$500,000 Second Mortgage provided by the Illinois Affordable
Housing Trust Fund
$145,000 Initial purchase of property by City of Elgin
$2,404,000 Total Development Cost
Low Income Housing Tax Credits
To encourage corporations to invest in affordable housing for lower
income households,Congress included the Low Income Housing Tax
Credit in the Tax Reform Act of 1986.The Credit replaced a system of
accelerated deductions for low income housing investments with a
simpler and more valuable credit calculated as a percentage(4%to 9%)
of construction and rehabilitation costs. The credit is awarded annually
for a ten-year period,and provides profits for corporate investors in the
form of tax savings.
Illinois Affordable Housing Trust Fund
The Illinois Affordable Housing Trust Fund was created by the Illinois
Legislature in 1989 and began operation in 1990. Administered by the
Illinois Housing Development Authority,the purpose of the Trust Fund
is to assist in the provision of affordable,decent,safe,and sanitary
housing to low and very low income households in Illinois. The Trust
Fund can provide up to$500,000 per project;the interest rate and
repayment schedule are negotiated on a case-by-case basis.
CENTER CITY PLACE
Occupancy, Rent Levet, and Income Restrictions
Both Low Income Housing Tax Credits and the Illinois Affordable
Housing Trust Fund carry certain restrictions. In Center City Place,
rents cannot exceed$497.00 for a studio apartment and$532.00 for a
one-bedroom apartment.
Household income of Center City Place residents cannot exceed 6010 of
the area median income:a one-person household must have an income
of less than$19,850;a two-person household must have an income of less
than$22,700. (All rents and incomes are expressed in 1991 dollars.)
Occupancy in Center City Place will be restricted to senior citizens 62
years and older who meet the income guidelines. Center City Place's
projected rent levels are$385.00 for a studio and$460.00 for a one-
bedroom apartment.
Purchase of Property by City of Elgin J
It is proposed that the City of Elgin initially acquire the property for
$145,000 and enter into a long-term ground lease with the development
partnership.
CENTER CITY PLACE
CNorth West Housing Partnership
Incorporated in June of 1990 North WestHousirngPartnership
has accepted the challenge of bringing affordable housing options to
Chicago's North and Northwest suburbs.
With a resourceful Board of Directors and capable staff,the North
WestHousingPartnership possesses a collection of leadership qualities
necessary to recognize housing needs and respond.
Whether the challenge is a dilapidated apartment building waiting
for rehabilitation,or vacant property prime for affordable housing
development,or developing housing for first time home buyers or
independent senior living,NWHP can perform.
Regardless of a community's housing needs,North WesthHouskg
Partnership will assist in obtaining government grants and loans,
identifying private project funding,locating appropriate developers and
managing the property once completed.
North WestHousingPartnership is dedicated to providing the
LeadershipforHousrng Options
I NWHP BOAR
OFFICERS Chris Sandvig-President&CEO-First Chicago Bank of Mount
William W.Higginson•Chairman
Prospect
President,Chicago Euity Fund,Inc. James E.Shannon-DireetorofFairHousingCenter-
9 Leadership Council for Metropolitan Open Communities
David K-Hill,Jr.-[rice Chairman Donna Thomas-Mavor-Village ofinverness,President
President,Kimball Hill,Inc. Nonhwest Suburban Association Realtors
Irvana Wilks-PR.Uice Chalrmarr Rosalyn Wesley-Manager,Sector Sourcing&Development-
Motorola,Inc.
Trustee,Village of Mount Prospect
Henry I.Zuba-President-Merriam/Zub:t Ltd.
Marc Hummel-Secretary Fs Off cio
Village Manger,Village of Hanover Park
Rita Athas•Executive Director-Northwest Municipal
Bruce C.Schiff-Tmasumr Conference
CPA,Fridum,Lukee&Schiff' Peg Cullen-Executive Director-Resource Center for the Elderly
Kathleen Gilmer-Economic Development Specialist-William
DIRECTORS Rainey Harper College
Michael Albrecht-Mawr-City of Des Plaines
William Grams-Village Administrator-Village of STAFF
Inverness Jack Ms rkowski-ErzcuuirDircror
Steve Hovany-President-Strategy Planning Associates Eileen Andrews-Admmstrative,4ssisi�m
Joseph J.Klein-Attorney-Stitt,Klein.Dadav&Aretos North West Housing Partnership
James R.Lancaster-President-NBD Illinois.Inc. 450 E.Higgins Rd.-Elk Grove V illlage,IL 60007
David Lesser-Attorney-Katten,Muchin&Zavis (708)593-0044 FAX(708)593-0862
CENTER CITY PLACE
Chicago Equity Fund
The Chicago Equity Fund is a real estate investment fund which
finances affordable housing developments in neighborhoods across
the Chicago area. Major Chicago area corporations make limited
partner investments in these developments and earn profits through
tax savings from Low Income Housing Tax Credits.
Since its inception in 1985,companies have invested over$45 million
of capital,which has been combined with funds from the City of
Chicago,the Illinois Housing Development Authority,and private
banks to generate over 3,000 units and more than$160 million of
affordable housing.
Chicago Equity Fund's Investors
Abbott Laboratories Kraft,Incorporated
A.J.Gallagher Kimball Hill,Incorporated
Amoco Corporation LaSalle National Bank
Aon Corporation The Marmon Group
AT&T Corporation Material Service,Incorporated
Baxter Corporation Nalco Chemical
Brunswick Corporation Northern Illinois Gas
Centel Corporation Northern Trust Company
Citibank Corporation Old Kent Bank-Chicago
Cole Taylor Bank Peoples Energy Corporation
Commonwealth Edison Premark International,Incorporated
Cragin Federal Bank Quaker Oats Company
First National Bank of Chicago R.R.Donnelley&Sons Company
Foote,Cone&Belding Sara Lee Corporation
Freddie Mac Sears Roebuck&Company
Harris Trust&Savings Bank St.Paul Federal
Illinois Bell Telephone Tribune Company
Company United Airlines,Incorporated
Illinois Service Federal Savings USG Corporation
and Loan Association
ill:_-.,- Whitman Corporation
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EXHIBIT C
NOTICES AFFECTING THE PROPERTY
None
EXHIBIT D
EXCEPTIONS AFFECTING THE PROPERTY
Permitted Exceptions as may be approved by the City of Elgin.
(iwsa.-d)
EXHIBIT E
ACQUISITION CONTRACT
THIS ACQUISITION CONTRACT is made and entered into this
8th day of July, 1992, by and between the Center City Joint
Venture, an Illinois general partnership, or its successor or
assigns (the "Developer") and the City of Elgin, Illinois, an
Illinois municipal corporation (the "City").
RECITALS•
A. The Developer and City have heretofore entered into
a certain Development Agreement dated as of July 8, 1992, (the
"Development Agreement") which provides for (i) the acquisition by
Developer of certain Real Estate and rights under a Vacant Lot
Lease Agreement, collectively referred to as the "Land" as
described in the Development Agreement, and (ii) the acquisition
and development of the Improvements located on the Real Estate,
known as the Douglas Hotel, into 45-residential housing units
designed for the elderly who qualify as low or lower income
families under Section 42 of the Internal Revenue Code (the "Code")
with preference given to residents of the City of Elgin to the
extent permitted by the Code and applicable law.
B. Developer has entered into an Assignment of Option
dated June 12, 1992 with North West Housing Partnership ("North
West") pursuant to which Developer has acquired all rights, title
and interest of North West in and to a certain Grant of Option to
Purchase Real Estate dated December 13, 1991 (the "Option") for
purchase of the Land and Improvements, from the Seller identified
therein, for the purchase price of $145,000 (the "Purchase Price")
plus and minus prorations and other adjustments as called for in
the Option.
C. Developer desires to sell to the City and the City
desires to acquire from Developer the Land and thereafter the
parties hereto desire to enter into a Ground Lease of the Land as
provided in the Development Agreement.
NOW THEREFORE, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and as
provided in the Development Agreement, the parties do hereby enter
into this Acquisition Contract and agree to the following.
1. Subject to the terms and conditions herein set
forth, Developer hereby agrees to sell the Land to the City for a
Purchase Price of $145,000, plus or minus prorations.
2. Upon Developer's compliance with the terms and
conditions herein set forth, the City shall acquire the Land for
the Purchase Price of $145,000, plus or minus prorations.
3. The Developer and the City agree with one another
that each will use their best efforts to meet the terms and
conditions of the Option which are within the control and power of
the respective party, and to timely execute and deliver such
documents and instruments as may be necessary or appropriate for
the respective party, to consummate the sale of the Land from the
Seller to the Developer under the Option, and the sale of the Land
from the Developer to the City under this Acquisition Contract.
4. The obligations of Developer to sell the Land
pursuant to this Acquisition Contract is specifically subject to
the condition precedent that Developer acquire the Land and
Improvements from the Seller pursuant to the Option.
5. The parties hereto intend that this transaction be
consummated concurrent with Developer's closing of the acquisition
of the Land and Improvements from the Seller. Therefore, the
closing date for the sale and purchase under this Acquisition
Contract shall be the closing date established under the Option.
Developer shall use its best efforts to give the City not less than
seven days advance written notice of the time, date and place of
the closing under the Option, and in all events shall send copies
of all notices regarding the exercise of the Option, and the
determination of closing dates. The closing of this transaction
shall be through a customary deed and money escrow established with
the escrow agent under the Option. All documents and instruments
shall be delivered and the settlement of the Purchase Price and
adjustments shall be made through the escrow. At the closing
Developer shall deliver to the City, at no cost or expense of the
City, the following:
A. Warranty Deed;
B. Owner's Policy of Title Insurance from a Company
acceptable to the City insuring the City as owner
of fee simple in the Land subject only to
encumbrances reasonably acceptable to the City;
C. Survey as delivered under the Option;
D. Evidence of payment of State of Illinois, County and
local transfer taxes;
E. Evidence of the Developer's compliance with all
applicable provisions of the Illinois Responsible
Property Transfer Act of 1988, Ill. Rev. Stat.,
ch.30, §901, et seo. ("IRPTA") indemnity for any
failure to so comply with IRPTA; (The City agrees
to waive all time periods for delivery of the IRPTA
disclosure document and, when received, the City
agrees to acknowledge receipt and cooperate with
Developer in filing a copy with IEPA as required by
Section 6 of IRPTA];
F. Evidence of the Developer's compliance with
provisions of the Illinois Income Tax Act ("Act")
regarding the notifications of the intended sale and
purchase of the Land or an affidavit of Developer
that no liability exists under the Act together with
an indemnity in favor of the City; and
G. Evidence of Developer's liability insurance meeting
requirements of not less than $1,000,000 of coverage
for a single occurrence and $5,000,000 in the
aggregate.
At the closing, the City will pay the Purchase Price as
adjusted by prorations.
6. Possession will be delivered at the closing subject
to a concurrent execution and delivery of the Ground Lease pursuant
to which Developer shall have all of the rights of the tenant under
the Ground Lease in and to the Land.
7. Developer and City each represent and warrant that
it has not dealt with, nor does it have any knowledge of any broker
or other party who has or may have any claim against the Developer
or City for a brokerage commission or finder's fee or like payment
arising out of or in connect with the sale and purchase of the
Land, except those parties listed in paragraph R-11 of the Option
whose commissions and fees are to be paid by Seller.
8. In the event of a default by Developer under this
Acquisition Contract or the Development Agreement, and after any
applicable cure period has expired, the City shall have the right
to terminate all rights of Developer under this Acquisition
Contract and the Development Agreement as its sole and exclusive
remedy.
9. This Acquisition Contract may be assigned by Center
City Joint Venture to an Illinois limited partnership in which
Developer shall act as the general partner (the "Project
Partnership") for the purposes of carrying out the Development,
provided such assignment shall be in writing and contain an
assumption by the Project Partnership of the obligations of the
Developer under the Development Agreement and this Acquisition
Contract.
10. All capitalized terms as used in this Acquisition
Contract, unless defined elsewhere herein shall have the meanings
ascribed to them in the Development Agreement.
IN WITNESS WHEREOF, the parties have caused this
Acquisition Contract to be executed as of the date first above
written.
CITY DEVELOPER
The City of Elgin Center City Joint Venture
By: By: Merriam/Zuba, Ltd.
Name•
Title: By:
Henry Zuba resident
(14694.acq)
EXHIBIT F
14694-001
06/30/92
MWB
GROUND LEASE AGREEMENT
This Ground Lease Agreement (the "Lease") is made as of the day of
1992, between
City of Elgin,an Illinois municipal corporation having an office at 150 Dexter Court,
Elgin, Illinois ('Landlord"),
and
Center City Joint Venture, an Illinois general partnership (the "Joint Venture")
having an office at 305 South Green Street, Chicago, Illinois (the 'Tenant").
RECITALS:
A. Landlord is the owner in fee simple title of a certain parcel of land located
at 156-158 Division Street in the City of Elgin, Illinois and related property, more
particularly described in Exhibit A attached hereto and incorporated herein by this
reference. In accordance with appropriate ordinances adopted by the City Council of the
Landlord,the Landlord desires to facilitate the redevelopment on said land of a residential
apartment building (the "Project") containing, in part, 45 dwelling units designed for the
elderly.
B. Landlord, as owner of said Land, and Tenant, as developer, have entered
into a Development Agreement dated June _, 1992, in order to implement the
development and construction of the Project in accordance with the terms and provisions
thereof.
C. In order to facilitate the development, rehabilitation,restoration and repair
of the Project and the financing thereof in accordance with the Development Agreement,
the parties desire to enter into this Lease on the terms and conditions herein provided.
D. The redevelopment of the Project is intended to meet, in part, the City of
Elgin downtown redevelopment goals,including bringing about additional investment and
other public policy goals. The Project is expected to have a total cost in excess of$2.3
Million Dollars and is intended to serve residents of the age of 62 and older without
children to the extent preferences can be given under applicable law.
WITNESETH:
ARTICLE 1
Lease of Property-Term of Lease
1.01. Landlord, for and in consideration of the rents to be paid and of the
covenants and agreements hereinafter contained to be kept and performed by Tenant,
hereby leases to Tenant, and Tenant hereby hires from Landlord, all that certain parcel
of land (herein referred to as the "Land") situated in the City of Elgin, State of Illinois,
and more fully described in Exhibit A attached hereto;
Together with all right, title and interest, if any, of Landlord in and to any
Improvements now or hereafter located on said Land and, exclusively in its private
capacity as an adjoining landowner and not in its capacity as a municipality,in and to any
sidewalks, alleys, streets and roads abutting to, or included within the Land;
Subject, however, to all agreements, easements, encumbrances and other charges
or matters affecting the Land listed on Exhibit B attached hereto ("Exceptions").
TO HAVE AND TO HOLD the same, subject to the Exceptions aforesaid, for a
term commencing on , 1992 (the "Commencement Date") and ending on
, 2043 (unless this Lease shall sooner be terminated as hereinafter provided),
upon and subject to the covenants, agreements, terms, provisions, conditions and
limitations hereinafter set forth,all of which Tenant covenants and agrees to perform and
observe.
ARTICLE 2
Definitions
2.01. The terms defined in this Section shall, for all purposes of this Lease, have
the meanings herein specified.
(a) "Affiliate" shall mean an entity which controls, is controlled by, or
under common control with a specified party.
(b) 'Default' shall mean any condition or event which constitutes or
would, after notice or lapse of time, or both, constitute an Event of Default.
(c) "Event of Default'shall have the meaning provided in Section 10.01.
-2-
(d) The words "herein," "hereof' or "hereunder" and words of similar
import refer to provisions contained in this Lease as a whole and not to any
particular section or subdivision thereof.
(e) "Impositions" shall mean all taxes, assessments, special assessments,
use and occupancy taxes, water and sewer charges, rates and rents, charges for
public utilities, excises, levies, license and permit fees and other charges, general
and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or
nature whatsoever,which shall or may during the Term be assessed,levied,charged,
confirmed or imposed upon or become payable out of or become a lien on the
Property, or any part thereof, appurtenances thereto or the sidewalks, streets or
vaults adjacent thereto provided, however, that if at any time during the term of
this Lease the present method of taxation or assessment shall be so changed that
there shall be substituted in whole or in part for the types of taxes, assessments,
levies,assessed or imposed on real estate and the Improvements thereon, a capital
levy or other tax levied, assessed or imposed on the rents received by Landlord
from said real estate or the rents reserved herein or any part thereof,then any such
capital levy or other tax shall, to the extent that it is so substituted, be deemed to
be included within the term"Impositions." Impositions affecting the Property shall
be limited to those attributable to the Improvements and not the Land unless the
Landlord is not successful in securing a tax exemption for the Land under Section
4.06.
(f) "Improvements" shall mean the buildings and structures, including
machinery, equipment, fixtures, furnishings and appurtenances now or at any time
hereafter erected or located on the Land.
(g) "Lender"shall mean any commercial real estate lender,national bank,
commercial or savings bank, pension fund or real estate investment trust, or any
Affiliate of the foregoing, and authorized to make loans secured by real property
located in the State of Illinois.
(h) "Land" shall mean the parcel of land described in Exhibit A and the
rights appurtenant thereto described in Section 1.01.
(i) "Landlord" shall mean the City of Elgin, or the owner in fee of the
Land from time to time, so that in the event of any sale or sales or transfer or
transfers of the Land, the seller or transferor shall be and hereby is entirely freed
and relieved of all agreements, covenants and obligations of Landlord hereunder
and it shall be deemed and construed without further agreement between the
parties or their successors in interest or between the parties and the purchaser or
transferee on any such sale or transfer that such purchaser or transferee has
-3-
assumed and agreed to carry out any and all agreements, covenants ad obligations
of Landlord hereunder accruing from and after the date of such sale and transfer.
0) The words"this Lease"shall refer to this Lease,including amendments
and extensions thereof, if any.
(k) "Lease Year"shall mean each twelve(12)month period commencing
on the Commencement Date and on each anniversary thereof during the Term.
(1) "Leasehold Mortgage" shall mean any mortgage, deed of trust or
similar security instrument created by Tenant pursuant to and in accordance with
the provisions of Section 9.03 and which constitutes a lien on Tenant's leasehold
interest hereunder or Tenant's interest in the Improvements.
(m) "Leasehold Mortgagee" shall mean the holder or holders from time
to time of any Leasehold Mortgage (including trustees under deeds of trust).
(n) "Project" shall mean the Improvements and all buildings and
improvements and rights of the Tenant under this Lease.
(o) "Property" shall mean the Land and the Improvements.
(p) "Rent" shall have the meaning defined in Section 3.01.
(q) "Requirements" shall mean any and all present and future laws,
statutes, ordinances, rules, regulations, orders or other requirements of any
governmental,public or quasi public authority now existing or hereafter created and
of any and all of their departments and bureaus and of any applicable fire rating
bureau or other body exercising similar functions, applicable to or affecting the
Property or any part thereof, including without limiting the generality of the
foregoing, City of Elgin Ordinances.
(r) "Surrender Fee"shall mean the fee of$ 0 due and payable
as provided in Section 14.03 hereof.
(s) "Sublease"shall mean any lease,sublease,license or other agreement,
whether written or oral, for the use or occupancy of any space in the Project.
(t) "Subtenant"shall mean any tenant,subtenant,licensee,invitee or other
occupant of space in the Project under a Sublease (other than Tenant).
(u) "Tenant" shall mean the parties named as Tenant herein, provided,
however,that whenever this Lease and the leasehold estate hereby created shall be
-4-
assigned or transferred in the manner specifically permitted herein, then from and
after such assignment or transfer and until the next such assignment or transfer,the
term '"Tenant" shall mean the permitted assignee or transferee named therein, as
if such transferee or assignee had been named herein as the Tenant, and except
as provided below,the seller, transferor or assignor shall be and hereby is relieved
of any continuing obligations hereunder. Anything herein to the contrary
notwithstanding,the initial Tenant shall,notwithstanding such assignment or transfer,
have a continuing obligation and liability for all obligations under the Development
Agreement, through and including the Completion Date, notwithstanding such
transfer or assignment of this Lease, unless Landlord shall have given Tenant a
specific written release of liability.
(v) "Term" shall mean the term of this Lease described in Section 1.01
hereof.
(w) "Unavoidable Delay"shall mean a delay beyond the control of Tenant
due to a strike, lock-out, act of God, unavailability of labor or materials, enemy
action, civil disorder, default of Landlord, change order (as defined in the
construction contract hereinafter referred to), or an injunctive relief of any court,
or acts of any governmental body or agency having jurisdiction over the Project.
2.02. The terms enumerated in this Section shall have the meanings ascribed
thereto in the indicated sections:
Apartment Structure Section 5.03(a)
Capital Improvements Section 5.01
Code Section 9.01(b)
Commencement Date Section 1.01
Completion Date Article 13
Exceptions Exhibit B
Final Plans Section 5.04(a)(i)
Full Insurable Value Section 7.01(a)
Initial Leasehold Mortgage Section 9.03(a)(i)
Initial Leasehold Mortgagee Section 9.03(a)
Instruments of Conveyance Section 5.05
-5-
Project Partnership Section 9.01(b)
Restoration Section 8.01
Tri-Party Agreement Section 9.03(d)
ARTICLE 3
Rent
3.01 Rent. From and after the Commencement Date through the Term, Tenant
shall pay to Landlord at the place to which notices to Landlord are to be sent in
accordance with Article 15 below,or to such other person,firm or corporation,or at such
other place as shall be designated from time to time by written notice from Landlord to
Tenant,fixed rent at the rate of One Dollar ($1.00)for each Lease Year ('Rent"). Rent
shall be payable in annual installments, in advance on the first day of each Lease Year
or for any period less than a full Lease Year.
3.02 No Partnership. Landlord and Tenant agree that they are not partners or
joint venturers and that,except in respect to the proceeds of insurance and condemnation
awards under the provisions of Articles 7 and 12 hereof,they do not stand in any fiduciary
relationship to each other.
3.03 Payment of Rent. All payments of Rent, made to Landlord hereunder shall
be in lawful money of the United States of America and shall be paid to Landlord, or to
such other person and/or at such other place as Landlord may designate from time to time
in writing.
3.04 Net Lease. Tenant shall pay to Landlord throughout the term of this Lease,
all Rent, free of any charges, assessments, impositions or deductions of any kind and
without abatement, deduction or set-off, other than those herein expressly provided, and
under no circumstances or conditions,whether now existing or hereafter arising,or whether
beyond the present contemplation of the parties, shall Landlord be expected or required
to make any payment of any kind whatsoever or be under any other obligation or liability
hereunder except as herein otherwise expressly set forth.
3.05 No Abandonment. Except to the extent provided in Section 8.01, no
happening,event,occurrence,or situation during the term of this Lease,whether foreseen
or unforeseen, and however extraordinary, shall permit Tenant to quit the Property or
surrender this Lease, or relieve Tenant from its liability to pay the full Rent, or relieve
Tenant from any of its other obligations under this Lease, and Tenant waives any rights
-6-
now or hereafter conferred upon it by statue, proclamation, decree, or otherwise, to quit
the Property, or any part thereof, to surrender this Lease or to claim any abatement,
diminution,reduction or suspension of the Rent on account of any such event,happening,
occurrence or situation.
3.06 Reimbursements to Landlord: Arrearaees. Tenant shall reimburse Landlord
for all reasonable expenditures, costs, expenses and fees, including reasonable attorneys'
fees, made or incurred by Landlord in curing any Default of Tenant for which Landlord
has given Tenant notice as provided in Section 10.01, such amounts to become due upon
delivery of written notice by Landlord stating the amount of such expenditures, costs,
expenses and fees by Landlord; and Tenant shall also pay Landlord, upon delivery of
notice from Landlord,all amounts payable to Landlord as reimbursements or indemnities
pursuant to Sections 6.03 and 6.04.
ARTICLE 4
Impositions
4.01 Payment. Throughout the Term, Tenant shall pay or cause to be paid,
as and when the same become due, all Impositions as defined in Section 2.01(e) hereof,
except that:
(a) all Impositions other than an Imposition which is attributable on the
accrual basis to a year (or other period) during only part of which this Lease is in
effect, shall be apportioned; provided, however, that Tenant shall not be entitled
to receive any apportionment if Landlord has terminated this Lease by reason of
an Event of Default; and
(b) where any Imposition is permitted by law to be paid in installments,
Tenant may pay such Imposition in installments as and when each such installment
becomes due.
4.02 Deposit of Impositions. From and after any Default, Tenant agrees to
deposit with Landlord on the first day of each and every month thereafter during the
Term one-twelfth(1/12)of(a)all Impositions due and payable during the next succeeding
12-month period based on the most recent ascertainable Impositions plus (b) annual
premiums on insurance policies required to be covered by Tenant under Article 7.
Further,in such Default event,Tenant shall deposit, at lease thirty(30) days prior to the
due date of any Imposition, such additional amount as may be necessary to provide
Landlord with sufficient funds in such deposit account to pay each such Imposition and
annual insurance premium at least thirty (30) days in advance of the due date thereof.
The rights granted hereunder to Landlord shall not be exclusive to Landlord's rights and
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remedies in the event of a Default by Tenant. Landlord shall hold any money so
deposited in an interest bearing account for the purpose of paying the charges for which
such amount shall have been deposited. Tenant shall be entitled to all interest earned on
said deposits and, so long as Landlord has not served Tenant with a notice of an Event
of Default which has not been cured,Landlord upon Tenant's request shall make periodic
disbursements of earned interest to Tenant. Landlord shall apply any such deposits for
the purpose held not later than the last day on which any such charges may be paid
without penalty or interest. If at any time the amount of any Imposition is increased or
Landlord receives reliable information that Impositions will be increased, and if the
monthly deposits then being made by Tenant for this purpose (if continued) would not
produce a fund sufficient to pay such item thirty (30) days prior to its due date, said
monthly deposits shall thereupon be increased and Tenant shall deposit immediately with
Landlord on demand by Landlord additional sums to that the monies then on hand for
the payment of said item plus the increased one-twelfth (1/12) payments and such
additional sums demanded shall be sufficient to pay such item at lease thirty (30) days
before the same becomes due and payable. For purposes of determining whether
Landlord has on hand sufficient monies to pay any particular Imposition at least thirty(30)
days prior to the due date therefor, deposits for each item shall be treated separately, it
being the intention that Landlord shall not be obligated to use monies deposited for the
payment of any item that is due and payable.
Tenant shall not be required to make any specific deposit required under this
Section if a similar deposit is made by Tenant to a Leasehold Mortgagee.
4.03 Contest of Impositions. Tenant may, if it shall so desire, contest the
validity or amount of any Imposition, in whole or in part, by an appropriate proceeding
diligently conducted in good faith. Tenant shall only conduct such a contest after payment
of the challenged Imposition unless Tenant shall (a)give Landlord prior written notice to
the effect that the payment of such Imposition would,in the opinion of Tenant's counsel,
prejudice or render moot Tenant's contest and (b) within fifteen (15) days after such
Imposition shall have become due, have deposited an amount sufficient to pay such
contested Imposition together with the interest and penalties thereon which amount the
Landlord shall apply to the payment of such Imposition when the amount thereof shall be
finally fixed and determined. Nothing herein contained, however, shall be so construed
as to allow such Imposition to remain unpaid for such length of time as shall permit the
Property, or any part thereof, or the lien thereon created by such Imposition to be sold
by a governmental, city or municipal authority for the nonpayment of the same. If the
amount so deposited as aforesaid shall exceed the amount of such Imposition when finally
fixed and determined, the excess (or the entire amount if no such payment is required)
shall be paid to Tenant, or in case there shall be a deficiency, the amount of such
deficiency shall be forthwith paid by Tenant.
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4.04 Reduction of Impositions. Tenant at its expense may, if it shall so desire,
endeavor at any time or times,upon prior written notice to Landlord,to obtain a lowering
of the assessed valuation upon the Property for the purpose of reducing taxes thereon and,
in such event, Landlord will offer no objection and, at the request of Tenant, will
cooperate with Tenant, but without expense to Landlord, in effecting such a reduction.
Tenant shall be authorized to collect any tax refund payable as a result of any proceeding
Tenant may institute for that purpose and any such tax refund shall be the property of
Tenant to the extent to which it may be based on a payment made by Tenant, subject,
however,to the apportionment provisions contained in Section 4.01,after deducting from
such refund the cost and expenses, including legal fees, incurred in connection with
obtaining such refund.
4.05 Joinder of Landlord. Landlord shall not be required to join in any
action or proceeding referred to in Sections 4.03 or 4.04 hereof unless required by law or
any rule or regulation in order to make such action or proceeding effective, in which
event,any such action or proceeding may be taken by Tenant in the name of,but without
expense to, Landlord. Tenant hereby agrees to indemnify and hold Landlord harmless
from and against all costs,expenses,claims,loss or damage,including reasonable attorneys'
fees, by reason of, in connection with, on account of, growing out of, or resulting from,
any such action or proceeding.
4.06 Exemption Petition. Landlord shall promptly,upon acqusition of the Land,
file a petition for a real estate tax exemption for the Land, and shall thereafter use all
reasonable efforts to secure and maintain such exemption for the Land over the Term of
the Ground Lease.
ARTICLE 5
Capital Improvements
5.01 Capital Improvements. The phrase "Capital Improvements" shall mean
the Improvements to be constructed or rehabilitated as provided in Section 5.03 and all
additions and all alterations,renovations, restorations, replacements or rebuildings of the
Improvements, whether or not required to be made in compliance with Tenant's
obligations under this Article, or in connection with a Restoration made under Article 8
as a result of damage or destruction, or under Article 12 as a result of a taking.
5.02 Major Capital Improvements. Prior to the commencement of any Capital
Improvement described in Section 5.03 or any other Capital Improvement involving in the
aggregate an estimated cost of more than$500,000.00,the following shall be submitted to
Landlord.
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(a) Landlord shall receive complete plans and specifications for the capital
Improvement prepared by a licensed architect who shall be reasonably acceptable
to the Landlord, and
(b) Landlord shall receive copies of all permits and licenses for the
construction of the Capital Improvement issued by the appropriate governmental
authority, department or bureau.
(c) Landlord shall receive a signed construction contract or contracts for the
full cost of the construction of the Capital Improvement in accordance with the plans and
specifications delivered pursuant to Section 5.02(a), with contractor(s) reasonably
acceptable to Landlord, together with appropriate liability policies and a construction
contract agreement with such contractor(s).
(d) Landlord shall receive from one or more Lenders acceptable to
Landlord a commitment of funds available or committed to Tenant covering the total cost
of the Capital Improvement. A commitment shall be deemed sufficient for the purpose
of complying with this Paragraph(d)if such commitment is in an amount which, together
with equity which Tenant has or will have available and specifically allocated to such work,
is sufficient to pay the budgeted costs of construction of the Capital Improvement. In case
of the Capital Improvement required under Section 5.03, the commitment referred to in
this Paragraph (d) shall either (i) pertain to both a construction loan and a long-term
take-out loan or (ii) consist of two separate commitments meeting the described
requirements, one such commitment to pertain to the construction loan and the other to
the long-term loan. Such loan or loans may be secured by a Leasehold Mortgage(s)
complying with the requirements of Section 9.03.
(e) Landlord shall receive a payment and performance bond with a
corporate surety company qualified to do business in Illinois covering the construction of
the Capital Improvement, or a letter of credit, guaranteeing completion and payment
thereof according to the plans and specifications and naming, as co-obligees thereunder,
Landlord, Tenant, and any Leasehold Mortgagee, as the case may be.
5.03. Required Capital Improvements. In accordance with the provisions of the
Development Agreement,Tenant hereby covenants and agrees to commence and diligently
pursue the construction of rehabilitation and renovation of the Improvements on the Land
in accordance with the following:
(a) Tenant shall, using a single fixed-price construction contract entered
into with a general contractor who is approved by the City in writing, cause the
Project to be rehabilitated into a multi-story residential building containing
residential rental units (the "Apartment Structure"), all in accordance with the
provisions hereof and of the Final Plan;
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(b) Tenant shall commence construction of the Project not later than the
date provided in Section 6.05 of the Development Agreement, and shall diligently
and continuously pursue such construction to completion;
(c) Tenant shall complete construction of all of the Project,not later than
the date specified in Section 6.08 of the Development Agreement subject,however,
to Unavoidable Delays; and
(d) Prior to commencement of construction and the making of the
Leasehold Mortgage, Tenant shall deliver each of the following to Landlord:
(i) A budget and allocation of funds for the construction of the
Project which shall estimate to the best of Tenant's ability the total cost of
the Apartment Structure and the major cost items for both hard and soft
costs included in the total cost of each such component part of the Project
(the "Budget");
(ii) A written statement of the name and address of the general
contractor used or to be used for the Project and a true and complete
copy of the general construction contract for the Project; and
(iii) Evidence reasonably satisfactory to Landlord that Tenant has
after the date hereof invested sufficient equity funds (not including any fees
or expenses of Tenant and Affiliates of Tenant the payment of which has
been deferred or which have been contributed to equity in lieu of cash),in
an amount not less than the positive difference,if any,between the proceeds
of the (A) construction and long-term financing and (B) the aggregate cost
of the Project.
5.04 Plans and Specifications.
(a) With respect to the Project to be constructed,Tenant shall comply with the
following requirements pertaining to plans and specifications(which requirements shall be
in addition to, and not in lieu of, any other requirements contained in other Sections of
this Lease and the Development Agreement). Lisec and Biederman who are preparing
the plans and specifications are approved by Landlord as the tenant's architects.
(i) Not later than 10 days before commencing construction of the Project,
Tenant shall provide Landlord with complete working drawings and specifications
("Final Plans") for all improvements to be contained in the Project (which plans
shall also include landscaping plans and specifications).
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(ii) Landlord shall have the right to approve the Final Plans within five(5)
working days of their receipt, and Tenant may promptly thereafter commence
construction of the Project as described in the Final Plans. The Landlord's failure
to disapprove the Final Plans within such period shall be deemed approval thereof.
(iii) In the event Landlord advises Tenant of any disapproval of the Final
Plans, Tenant,within 25 working days after receipt of Landlord's disapproval and
prior to commencing construction of the Project described in the Final Plan, shall
provide Landlord with revised Final Plans which shall again be subject to Landlord's
approval.
(iv) If Landlord shall fail to approve the Final Plans within five (5)
workings days after the Tenant's initial submission of such plans, or if Landlord
shall for any reason fail to timely approve (or be deemed to have approved) any
of the matters described in Section 5.03(d) and in this Section 5.04(x), then either
Landlord or Tenant may terminate his Lease by delivery or written notice to the
other party.
(b) With respect to any Capital Improvements other than the Project which
Tenant desires to construct on the Land,Tenant shall not commence constructions unless
Landlord shall have specifically approved such Capital Improvement and the Final Plans
therefor and shall be subject to the provisions of Section 5.02.
5.05 Surrender of Improvements. Upon the expiration or earlier termination of
the Term,all Improvements then located on the Land shall,with the Land,be vacated and
surrendered by Tenant to Landlord and shall become the property of Landlord, as more
fully provided in Section 14.01,and Tenant agrees to execute and deliver to Landlord such
deeds, assignments or other instruments of conveyance (collectively, the "Instruments of
Conveyance") as Landlord may deem necessary to evidence such transfer of title to
Landlord. The Instruments of Conveyance shall include an assignment by Tenant of all
of Tenant's right, title and interest as landlord in and to all Subleases, management and
operating agreements and other agreements affecting the Land. Surrender and/or
conveyance by Tenant shall be subject to all matters of record, including the Leasehold
Mortgages, against the Project and the Land, as Landlord shall have approved.
ARTICLE 6
Use, Maintenance, Alterations, Repairs, Etc.
6.01. Condition of Land and Property. Tenant has leased the Land after a full and
complete examination thereof, as well as the title thereto and its present uses and
restrictions, and Tenant accepts the same without any representation or warranty(except
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those contained in the Development Agreement), express or implied in fact or by law,by
Landlord and without recourse to Landlord, as to the title thereto, the nature, condition
or usability thereof or the use or uses to which the Property or any part thereof may be
put. Landlord shall not be required to furnish any services or facilities or to make any
repairs or alterations in or to the Property,throughout the Term, except for such services
as are specified in the Development Agreement, and those as are customarily provided
by the City in its municipal capacity to properties generally. Tenant hereby assumes the
full and sole responsibility for the condition, operation, repair, replacement, maintenance
and management of the entire property.
6.02 Use of Property. The Property shall be used and occupied only for
multifamily residential uses and for uses incidental thereto, and for no other purpose.
6.03 Prohibited Use. Tenant shall not use or occupy the Property or permit the
same to be used or occupied, nor do or permit anything to be done in, on or to the
Property, in whole or in part, in a manner that would in any way (a) violate any
construction permit or certificate of occupancy affecting the property or any Requirements,
(b)make void or voidable any insurance then in force with respect thereto or the Project,
or make it impossible to obtain fire or other insurance thereon required to be furnished
by Tenant hereunder, (c)cause or be apt to cause structural injury to the Improvements,
the Project, or any part thereof, or (d) violate any provision of this Lease. Any act or
omission of any Subtenant that violates any provision of this Lease and is not being
remedied by Tenant shall, for the purposes hereof, be deemed to be a violation of such
provision of this Lease by Tenant,it being the intention and agreement of the parties that
Tenant shall assume and be liable to Landlord for any and all acts and omissions of any
and all Subtenants.
Tenant shall not use or occupy or permit the Property to be used or occupied,nor
do or permit anything to be done in, on or to the Property, in whole or in part, in a
manner which would in any way violate any present or future Requirements; provided,
however, that Tenant may, in good faith, upon prior written notice to Landlord (and
wherever necessary in the name of but without expense to, Landlord) and after having
secured Landlord to its reasonable satisfaction by cash or by a surety company bond in
an amount,with a company and in form and substance reasonably satisfactory to Landlord,
against loss or damage, contest the validity of any such Requirements and, pending the
determination of such contest may postpone compliance therewith, provided that in no
event shall such act or omission of Tenant subject Landlord to any fine or penalty or to
prosecution for a crime, to cause the Property or any part thereof to be condemned or
to be vacated or to cause any material interference with the operation of the Property for
the purposes set forth in Section 6.02 hereof or the occupancy,use,benefit and enjoyment
thereof by any Subtenant. Tenant shall indemnify and hold harmless Landlord,its officials,
agents and employees against any recovery of loss to which Landlord may be subject or
which Landlord may sustain,including reasonably attorneys'fees and expenses incurred by
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Landlord arising from any breach of this covenant or by reason of any action or
proceedings which may be brought against Landlord or against the Property, or any part
thereof, by virtue of any such Requirements.
6.04 Maintenance of Prone . Tenant shall take good care of the
Property, make all repairs thereto, interior and exterior, structural and nonstructural,
ordinary and extraordinary, foreseen and unforeseen, and shall maintain and keep the
Property in good order, repair and condition. Tenant shall keep the Property fully
equipped and in good rentable order and repair; it being understood that Tenant's
covenants herein with respect to the maintenance of the Property are of paramount
importance to Landlord. Tenant covenants and agrees that throughout the Term of this
Lease,(a)all building systems,facilities and equipment,including HVAC systems,elevators,
common area lighting and the like,shall be maintained in good operating order and repair
and(b)the Property shall,at all times,have adequate means of ingress and egress to and
from the abutting public streets,alleys,sidewalks and service roadways in accordance with
the Final Plans. Tenant shall indemnify and hold Landlord harmless of and from any and
all claims and demands arising from the failure of Tenant to perform the covenants
contained herein or arising from any accident,injury or damage to any person or property
that shall or may happen in or upon the Property or any part thereof, or upon the
sidewalks about the Property, however caused other than Landlord's negligence or willful
misconduct,and shall keep the Property free and clear of any and all mechanics' liens or
other similar liens or charges incidental to work done or material supplied in or about the
Property.
6.05 Waste. Tenant shall not do, permit or suffer any waste, damages,
disfigurement or injury to or upon the Property or any part thereof. Tenant shall have
the right at any time and from time to time to sell or dispose of any machinery,
equipment or fixtures subject to this Lease that may have become obsolete or unfit for
use or that is no longer useful,necessary or profitable in the conduct of Tenant's business;
provided,however, that Tenant shall have substituted or shall promptly substitute for the
property so removed from the Property other machinery, equipment or fixtures at least
of equal quality in the performance of the particular function in question as that of the
property so removed unless, in Tenant's reasonable opinion as set forth in written notice
to Landlord, the property so removed was performing an obsolete function and
replacement thereof is not necessary or appropriate to maintain the operation or character
of the Property, its use and occupancy by subtenants and licensees or its overall value
without impairment.
6.06 Compliance with Requirements. Tenant shall comply at its own expense
with all Requirements during the Term and with the requests of any insurance company
having policies outstanding with respect to the property,whether or not such Requirements
or requests require the making of structural alterations or the use or application of
portions of the Property for compliance therewith or interfere with the use and enjoyment
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of the Property, and shall protect,indemnify and hold harmless Landlord,its officials and
employees,from and against all fines,penalties,claim or claims for damages of every kind
and nature arising out of any failure to comply with any such Requirements and requests,
the intention of the parties being with respect thereto that Tenant during the Term shall
discharge and perform all the obligations of Landlord, as well as all the obligations of
Tenant, arising as aforesaid, and hold harmless Landlord therefrom, so that at all times
the Rent shall be net to Landlord without deductions or expenses on account of any such
Requirement or request whatever it may be; provided,however,that Tenant may,in good
faith upon prior written notice to Landlord (and wherever necessary,in the name of, but
without expense to, Landlord), and after having secured Landlord to its reasonable
satisfaction by cash or by a surety company bond in an amount, in a company and in
substance reasonably satisfactory to Landlord, against loss or damage, contest the validity
of any such Requirement or request and,pending the determination of such contest,may
postpone compliance therewith but not so as to subject Landlord to any fine or penalty
or to prosecution for a crime,to cause the Property or any part thereof to be condemned
or to be vacated or to cause any material interference with the operation of the property
for the purposes set forth in Section 6.02 thereof.
6.07. Exculpation of Landlord. Landlord shall not be responsible or liable for any
destruction,damage or injury to any property or to any person or persons at any time on
the Property resulting from any casualty, occurrence or condition, including without
limitation, those from steam, gas or electricity or from water, rain or snow, whether the
same may leak into, issue or flow from any part of the improvements on the Land or
within the Project or from pipes or plumbing work of the same, or from any other place
or quarter; nor shall Landlord be in any way responsible or liable in case of any accident
or injury including death to any of Tenant's Subtenants, employees, agents, or to any
person or persons in or about the Property or the streets, sidewalks or alleys adjacent
thereto;and Tenant agrees that it will not hold Landlord in any way responsible or liable
therefor and will further indemnify and hold Landlord harmless from and against any and
all claims, liability, penalties, damages, expenses and judgments arising from injury to
persons or property of any nature and also for any matter or thing arising out of or
resulting as a direct or indirect consequence from the occupancy of the Property,or of the
streets,sidewalks or alleys adjacent thereto. nothing herein contained shall be deemed to
release the City from providing normal municipal services to Tenant and the Project, or
form the consequences to Tenant and the Project for the City's own fault or negligence.
6.08 Landlord's Right of Entrv. Landlord shall have the right to enter upon the
Property, or any part thereof, for the purpose of ascertaining the condition thereof or
whether Tenant is observing and performing the obligations assumed by it under this
Lease, all without hindrance or molestation from Tenant, or anyone claiming by,through
or under Tenant,whether as Subtenant or otherwise. The above mentioned rights of entry
shall be exercisable at reasonable times, at reasonable hours and on reasonable notice.
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Nothing contained herein, however, shall impose or imply any duty on the part of
Landlord to make any such repairs or perform any such work.
6.09 No Liens. Notice is hereby given that Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and that no
mechanics'or other lien,for any such labor or materials shall attach to or affect the estate
or interest of Landlord in and to the Property or any portion thereof.
ARTICLE 7
Insurance
7.01 Maintenance of Insurance.During the Term of this Lease, Tenant shall, at
its sole cost and expense, keep and maintain policies of:
(a) insurance on the Improvements against loss or damage by fire and
against loss or damage by other risks now embraced by the so-called broad
extended coverage endorsement and from such other hazards as may be covered
by a form of all risk insurance (including specifically insurance against loss or
damage by sprinkler leakage, water damage and collapse) in amount sat all times
sufficient to prevent Landlord or Tenant from becoming a coinsurer under the
terms of the applicable policies, but in any event in an amount not less than the
greater of the unpaid principal balance of any Leasehold Mortgage or 90 percent
of the then Full Insurable Value of the Improvements. The term "Full Insurable
Value" shall mean actual replacement value (exclusive of cost of excavation,
foundations and footings)without deduction for depreciation. Such"Full Insurable
Value" shall be determined from time to time (but not more frequently than
annually) at the reasonable request of Landlord, by one of the insurers or, at the
option of Tenant, by an appraiser, engineer, architect or contractor approved in
writing by Landlord (which approval shall not be unreasonably withheld) and paid
by Tenant. No omission on the part of Landlord to request any such determination
shall relieve Tenant of any of its obligations under this Article;
(b) general public liability insurance(containing the so-called'occurrence
clause") protecting and indemnifying Tenant, and Landlord, its officials and
employees,against any and all claims for damages to person or property or for loss
of life or of property occurring upon, in, or about the Property and the adjoining
streets, driveways, alleys and passageways, such insurance to afford immediate
protection, to the combined single limit of not less than $1,000,000 in respect of
bodily injury, death and property damage;
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(c) boiler and pressure vessel insurance, including pressure pipes;
(d) rent, or use and occupancy or rental value insurance, in an amount
at least sufficient to meet the payments for six (6) months of the debt service on
any permitted Leasehold Mortgage,which insurance shall be payable to Landlord,
Tenant and the holder of any such Leasehold Mortgage,as their respective interests
may appear; and
(e) such other insurance on the Improvements,and if changed economic
conditions shall make the specified amounts inadequate,such amounts as may from
time to time be reasonably required by Landlord, against the stated and other
insurable hazards which ate the time are commonly insured against with respect to
properties comparable to the Property in the Elgin metropolitan area.
Such policies shall be delivered to and held by landlord or the holder of such Leasehold
Mortgage.
7.02 Form of Policies. Except as provided in Section 8.02, any policies of
insurance of the character described in subsections (a), (c), (d) and (e) of Section 7.01
hereof, shall expressly provide that any losses thereunder shall be adjusted with Tenant,
and any Leasehold Mortgagee(or absent a Leasehold Mortgagee with the Landlord). All
such insurance shall be carried in the name of Landlord and Tenant and loss thereunder
shall be payable to the Landlord, Tenant and Leasehold Mortgagee, if any, as their
respective interests may appear.
7.03 Evidence of Payment. Upon the execution and delivery of this Lease and
thereafter not later than the expiration dates of the expiring policies theretofore furnished
pursuant to this Article, originals or duplicate originals of the policies required by this
Article 7,bearing notations evidencing the payment of premiums or accompanied by other
evidence satisfactory to Landlord of such payment, shall be delivered by Tenant to
Landlord.
7.04 Separate Insurance. Tenant shall not obtain separate insurance concurrent
in form or contributing in the event of loss with that required in this Article to be
furnished by or that may reasonably be required to be furnished by Tenant unless
Landlord is included therein as an additional insured, with loss payable as in this Lease
provide. Tenant shall immediately notify Landlord of the obtaining of any such separate
insurance and shall deliver the policy or policies so obtained as provided in Section 7.03
hereof.
7.05 Cancellation. Each policy of insurance delivered hereunder shall
contain an agreement by the insurer that such policy shall not be cancelled or materially
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altered without at least twenty (20) days' prior written notice given to Landlord and to
each mortgagee named in such policy.
ARTICLE 8
Damage and Restoration
8.01 Damage or Destruction. In case of any damage to or destruction of the
Improvements during the term of this Lease, Tenant shall give to Landlord immediate
notice thereof and Tenant shall,from and to the extent the insurance proceeds,promptly
and diligently restore, replace, rebuild and repair the same as nearly as possible to their
value,condition and character immediately prior to such damage or destruction. Landlord
shall in no event be called upon to restore, replace,rebuild or repair such Improvements,
or any portion thereof, nor to pay any of the costs or expenses thereof. All work in
connection with such restoration, replacement, rebuilding and repairing, including all
temporary repairs to the Improvements or repairs made for the protection of the
Improvements pending the completion of the permanent restoration, replacement,
rebuilding and repairing, is hereinafter collectively referred to as "Restoration." In the
event of any such damage to the Improvements occurring during the Term, if the
insurance proceeds are insufficient to accomplish the Restoration, Tenant shall have the
right at its sole discretion to either (a) deposit additional funds of the Tenant in an
amount which is sufficient, with insurance proceeds, to complete the Restoration, or(b)
to terminate this Lease at any time within ninety (90) days after such occurrence, unless
Landlord within such time shall commit to provide the additional funds required to
complete such Restoration beyond the extent of the insurance proceeds. Landlord shall
not be required to give such commitment.
8.02 Disbursements. Adjustment of any insurance claim for$500,000 or less
may be negotiated by Tenant and Leasehold Mortgagee, if required by any Leasehold
Mortgage. Adjustment of any claim in excess of $500,000 shall be negotiated jointly by
Tenant and Leasehold Mortgagee, and if permitted by any Leasehold Mortgage with the
Landlord. All insurance proceeds shall be deposited in a special bank account controlled
by the Leasehold Mortgagee or if none,by the Landlord,and administered as hereinafter
set forth. All insurance proceeds received by Landlord or Tenant on account of such
damage or destruction (other than proceeds from rent insurance), less the actual costs,
expenses and fees, if any, incurred in connection with the adjustment of the loss, shall be
applied in accordance with the terms of this Article 8 (and subject to the requirements
of Section 5.02 in the case of any Capital Improvements involving in the aggregate an
estimated cost of more than $500,000). Such insurance proceeds shall be paid out (after
disbursement of funds,if any,furnished by Tenant) from time to time as such Restoration
progresses upon the written request of Tenant to Landlord, which shall be accompanied
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by such documents at the parties may mutually agree to assure work in place and full
payment therefor.
8.03 Deficiencies. In the event the estimated cost of the Restoration is in
excess of the net insurance proceeds or in the event at any time the estimated cost to
complete the Restoration is in excess of the net insurance proceeds and any amount
furnished by Tenant to defray any excess cost, Tenant may, at its election, before
proceeding with the Restoration or before proceeding further with the Restoration, as
applicable, deposit with Landlord an amount equal to such excess cost or deliver to
Landlord a surety bond from a company and in a form satisfactory to Landlord and the
Leasehold Mortgagee, if any, for such excess cost, the premium for which to be paid by
Tenant and thereupon Tenant may proceed with Restoration.
8.04 Landlord's Right to Complete. If Tenant shall fail to restore, replace,
rebuild or repair promptly and diligently the Improvements or any portion thereof so
damaged or destroyed, or having so commenced such Restoration shall fail to complete
same promptly and diligently in accordance with this Lease,Landlord,after first giving any
Leasehold Mortgagee written notice and at least 30 days thereafter to commence such
Restoration and thereafter promptly and diligently complete such Restoration, may
complete the same and apply the insurance proceeds to the cost and expense of
Restoration.
8.05 Leasehold Mortgage. Application of insurance proceeds shall be subject to
the first priority of the Leasehold Mortgagee and terms of the Leasehold Mortgage,
including Leasehold Mortgagee's right, if any, to apply proceeds of insurance to the
payment of outstanding debt owed by Tenant to such Leasehold Mortgagee in lieu of
Restoration. In such an event however, Landlord and Tenant shall adjust the balance of
insurance proceeds as their respective interests may be affected by such damage or
destruction, and this Lease shall terminate.
ARTICLE 9
Title and Ownership-Leasehold Mortgage
9.01 Restrictions on Transfer.
(a) Except as specifically permitted under this Lease and the Development
Agreement, Tenant shall not at any time without the prior written consent of
Landlord sell,assign,transfer, or convey(i)all or any part of its interest under this
Lease or(ii) all or any part of any structure or other improvement located on the
Land, nor sublet all or any part of the Property except for subletting to users of
the Apartment Structure.
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(b) The Joint Venture is specifically authorized and permitted to sell,
assign, transfer or otherwise convey the Property to an Illinois limited partnership
formed or to be formed with the Joint Venture acting as general partner (the
"Project Partnership") for the purposes of carrying out the Project and to admit
limited partners thereto to provide capital to meet the equity required for financing
the Project. The Landlord acknowledges that Tenant and/or the Project Partnership
intend the Improvements to qualify for low income housing tax credits, available
under Section 42 of the Internal Revenue Code (the "Code"). As a condition to
such qualification, Tenant and/or the Project Partnership shall be required, and
hereby are authorized to enter into restrictive covenants encumbering the Property
pertaining to use of the Property as required by the Code,and the allocating agency
administering the low income housing tax credits. To the extent such allocating
agency requires Landlord to submit this Lease to the provision of the restrictive
covenants,Landlord shall enter into a subordination agreement to effect the same.
(c) Landlord shall not, prior to the fifteenth (15th) anniversary of the
Completion Date without the prior written consent of Tenant,sell,assign,transfer,
or convey(i)all or any part of the Land or(ii)all or any part of its interest in this
Lease or any structure or improvement located on the Land.
9.02 Liens. Other than the permitted Exceptions, Tenant shall not create or
permit to be created or to remain, and shall promptly discharge, any lien (including but
not limited to any mechanic's, contractor's, subcontractor's or materialman's lien or any
lien, encumbrance or charge arising out of any Imposition, conditional sale,title retention
agreement, chattel mortgage, security agreement, financing statement or otherwise, but
exclusive of the lien of,or any security interest created by,any Leasehold Mortgage)upon
the Property or any part thereof or the income therefrom,and Tenant shall not suffer any
other matter or thing whereby the estate,rights and interests of Landlord in the Property
or any part thereof might be impaired. Notwithstanding the foregoing prohibitions,Tenant
shall have the right to contest any such lien upon compliance with the same conditions as
are applicable to the contest of any Imposition under Section 4.03. If Tenant shall fail to
cause any such lien to be discharged of record or contested in the foregoing manner,then
Landlord may in addition to any other right or remedy, but shall not be obligated to,
discharge such lien at any time after delivery of notice to Tenant, either by paying the
amount claimed to be due or by procuring the discharge of such lien by deposit or
bonding proceedings, and in any such event Landlord shall be entitled if it so elects to
compel the prosecution of an action for foreclosure of such lien by the lienor and to pay
the amount of judgment in favor of the lienor with interest, costs an allowances. Any
amount so paid by Landlord and all costs, expenses and fees incurred by Landlord in
connection therewith shall be reimbursed by Tenant to Landlord. This Lease shall
constitute notice that Landlord shall not be liable for any work performed or to be
performed, or any materials furnished or to be furnished, at the Land for Tenant or any
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Subtenant upon credit, and that no mechanic's or other lien for such work or materials
shall attach to or affect the estate or interest of Landlord in and to the Land, unless
specifically ordered by Landlord in writing.
9.03 Leasehold Mortgage.
(a) In order to enable Tenant to finance a portion of the cost of
construction of the Project, Tenant shall have the right at or prior to commencement of
construction of the Improvements required under Section 5.03 to mortgage its leasehold
estate in the Property, together with its ownership interest in the Improvements, and
executed and record a mortgage or mortgages with respect to both such estates,
respectively, to secure the repayment of a loan or loans made to Tenant by a Lender or
Lenders (the "Initial Leasehold Mortgagee") in an aggregate amount not to exceed the
estimated cost of the Project. After completion of the Project,Tenant shall have the right
to mortgage its leasehold estate in the Property and the Improvements, provided that
(i) the lien of any mortgage referred to in the first sentence of this Paragraph
(a) (the "Initial Leasehold Mortgage") shall no longer encumber such leasehold estate of
Tenant;
(ii) Tenant shall comply with all other conditions and requirements herein
provided with respect to mortgages secured by Tenant's leasehold in the Property and
Improvements; and
(iii) Landlord shall have given its written approval specifically with respect to such
mortgage which approval shall not be unreasonably withheld or delayed.
Any mortgage or trust deed made in accordance with the provisions of this Section 9.03
is herein referred to as a"Leasehold Mortgage". Tenant covenants and agrees to observe
and perform all of the covenants, agreements, and terms contained in any Leasehold
Mortgage. Landlord's interest in this Lease shall at no time be encumbered by and shall
at no time be subject or subordinate to any Leasehold Mortgage, except as to rights
granted to any Leasehold Mortgagee as set forth in this Lease or the Development
Agreement.
(b) If Landlord shall be notified in writing of the existence of a Leasehold
Mortgage and provided the Leasehold Mortgagee shall have designated in a written notice
to Landlord the address of the Leasehold Mortgagee for the service of notices,then notice
of Tenant's default in the performance of the covenants of this Lease shall simultaneously
be given to such Leasehold Mortgagee and such Leasehold Mortgagee shall have the right
within the respective periods as prescribed in Paragraph (e)hereof to take such action or
to make such payment as may be necessary to cure any such default to the same extent
and with the same effect as though done by Tenant.
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(c) Each Initial Leasehold Mortgage shall be or include a construction loan
mortgage, and shall provide for periodic progress payments based on the value of
completed work in accordance with customary construction loan procedures.
(d) Contemporaneously with the execution of the Initial Leasehold Mortgage,
Landlord, if required by the Leasehold Mortgagee, shall make and enter into an
appropriate three-party agreement(the"Tri-Party Agreement"). The Tri-Party Agreement
shall confirm the rights granted herein to the Leasehold Mortgagee.
(e) If Tenant shall be in default under this Lease, Landlord agrees that it will
not terminate this Lease or invoke its right to take possession of the Property if (i)
Leasehold Mortgagee shall cure the default within 30 days after expiration of the time for
Tenant to cure said default,or if such default cannot be cured within said 30-day period,
Leasehold Mortgagee in good faith commences to prosecutes with all due diligence all
actions required to cure such default, or if(ii)within 90 days after notice of such default
by Landlord to Leasehold Mortgagee, the Leasehold Mortgagee commences legal
proceedings(herein called"foreclosure proceedings")to foreclose the lien of the Leasehold
Mortgage and if such Leasehold Mortgagee diligently proceeds with its foreclosure
proceedings (including seeking to be put in possession as mortgagee-in-possession or to
obtain the appointment of a receiver in such foreclosure proceedings),and seeking to cure
or cause to be cured all defaults under this Lease other than defaults which cannot be
cured until leasehold Mortgagee is put in possession of the Property; provided, however,
that notwithstanding the preceding provisions of this sentence Landlord may invoke any
or all of its remedies under this Lease, including the remedy of termination, if such
Leasehold Mortgagee: (w) fails to cure all defaults (other than those which cannot be
cured until Leasehold Mortgagee is put into possession of the Improvements),within thirty
(30) days after the expiration of the time for Tenant to cure such defaults provided the
same are capable of cure by the Leasehold Mortgagee;(x)fails to commence in good faith
within said 30-day period to cure any default which cannot be cured within said 30-day
period by the exercise of due diligence;(y)fails to continue to prosecute in good faith and
with due diligence all actions commenced in good faith within said 30-day period; or (z)
fails to continue to proceed with its foreclosure proceeding with due diligence. In the
event the purchaser at foreclosure sale or the assignee of such purchaser acquires the
leasehold estate hereunder and Tenant's interest in the Improvements, such purchaser or
assignee shall thereupon become Tenant under this Lease and hereby agrees to assume
and perform each and all of Tenant's obligations and covenants hereunder; provided,
however, that any prior default which does not involve the payment of money and which
cannot be cured by Leasehold Mortgagee shall be deemed waived (without waiving any
provision of this Lease so far as it applies prospectively).
(f) In the event there is a Leasehold Mortgage of which Landlord has received
notice as provided in Paragraph (b) hereof, Landlord agrees that it will not accept a
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surrender of the Property or a cancellation of this Lease from Tenant prior to the
termination of this Lease and will not make an amendment of this Lease without in each
case prior written consent of such Leasehold Mortgagee.
(g) If Landlord shall terminate this Lease or if this Lease shall be terminated
by reason of the rejection of this Lease by a trustee or receiver appointed by a court of
competent jurisdiction in bankruptcy or insolvency proceedings involving Tenant,then and
in either such event Landlord will make and enter into a new lease with Leasehold
Mortgagee (or the nominee of Leasehold Mortgagee designated by such mortgagee by
written notice to Landlord) provided that:
(i) Leasehold Mortgagee shall make written request of Landlord for a
new lease within the thirty(30) days next following the date of termination of this
Lease as aforesaid;
(ii) At the time of termination of this Lease,Leasehold Mortgagee shall
have cured all defaults of Tenant under this Lease which are capable of cure by
Leasehold Mortgagee, and at the time of Leasehold Mortgagee's written request
for a new lease and at the time of execution and delivery of such new lease by and
between Landlord and Leasehold Mortgagee (or the nominee of Leasehold
Mortgagee,as the case may be)Leasehold Mortgagee shall have performed all of
Tenant's obligations and covenants under this Lease,with like effect as if this Lease
had not be terminated;
(iii) Concurrently with the delivery of the new Lease,Leasehold Mortgagee
shall surrender Tenant's duplicate original of this Lease for cancellation by
Landlord; and
(iv) Prior to the making of such new lease, Leasehold Mortgagee shall
have furnished indemnity satisfactory to Landlord,indemnifying Landlord from any
and all liability arising out of the making of the new lease with Leasehold
Mortgagee (or the nominee of such Mortgagee, as the case may be).
Said new lease shall be for the remainder of the stated Term of this Lease. Said
new lease shall contain the same terms and conditions as are set forth herein except for
requirements which are no longer applicable or which have already been performed.
The new lease shall be executed in triplicate original counterparts by and between
Landlord and Leasehold Mortgagee (or the nominee of such Mortgagee,as the case may
be)within the forty-five(45)days next following the date of termination of this Lease,or
within such extended period of time as shall have been mutually agreed upon in writing
by and between Landlord and Leasehold Mortgagee prior to the expiration of said 45-
day period.
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(h) Leasehold Mortgagee, by accepting its Leasehold Mortgage, agrees for the
benefit of Landlord:
(i) That such mortgagee will use its best efforts to give to Landlord
notice of all defaults declared with respect to such Leasehold Mortgage which give
Leasehold Mortgagee the right of acceleration, concurrent with or promptly after
the time notice thereof is given to Tenant; and Landlord shall have the right,but
shall not be obligated, to cure any such defaults on the part of Tenant within any
time period allowed by the Leasehold Mortgage.
(ii) Prior to commencing foreclosure proceedings or accepting a deed in
lieu of foreclosure, Leasehold Mortgagee shall give Landlord a written notice
describing the action proposed to be taken by Leasehold Mortgagee and stating the
aggregate amount of the indebtedness then due and secured by the Leasehold
Mortgage and setting forth in reasonable detail the respective portions of said
indebtedness attributable to principal, interest, attorneys' fees and expenses and
other costs, fees and expenses. Landlord shall have a period of twenty (20) days
after Landlord receives such notice from Leasehold Mortgagee within which
Landlord, at its election, may purchase from such Leasehold Mortgagee without
recourse,the Leasehold Mortgage,the indebtedness secured thereby,and any other
security held by Leasehold Mortgagee for such indebtedness, for a purchase price
equal to the amounts due Leasehold Mortgagee under the Leasehold Mortgage.
(i) Nothing contained in this Article 9 or elsewhere herein shall prohibit
Landlord from mortgaging its interest in the Land at any time or from time to time, and
neither Tenant nor any Leasehold Mortgagee shall have any interest in the proceeds of
any such mortgage.
ARTICLE 10
Defaults: Rights and Remedies of Landlord
10.01 Event of Default. Each of the following shall be an "Event of Default":
(a) Tenant's failure to pay any installment of Rent,or any other payment
of money to be paid by Tenant under this Lease,when due, and such failure shall
continue for a period of 10 days after written notice from Landlord specifying such
failure;
(b) Tenant's failure to commence construction of the Project by the date
specified in Section 5.03(b) or to complete in accordance with Final Plans such
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portion of the Project as is described in Section 5.03(c) within the time period
specified in such Section;
(c) Tenant shall be in default under Section 9.01 of this Lease;
(d) Tenant shall fail to perform any other obligation to Landlord under
this Lease and such failure shall continue beyond ninety (90) days from written
notice received by Tenant from Landlord specifying such default; and
(e) If a petition in bankruptcy is filed by or against Tenant, or if Tenant
makes a general assignment for the benefit of creditors or is adjudged insolvent by
any state or federal court,except in the case of any such involuntary petition,action
or proceeding not initiated by Tenant which is not dismissed or stayed within 90
days of the commencement of such petition, action or proceeding.
10.02. Termination. If an Event of Default shall occur,Landlord may at its option
at any time thereafter give to Tenant a notice of termination of this Lease, and upon the
date specified in such notice, this Lease and the term hereby demised and all Tenant's
rights under this Lease shall expire and terminate as if that date were the date herein
originally fixed for the expiration of the term of this Lease, and on the date so specified
Tenant shall quit and surrender the Property to Landlord, but Tenant shall remain liable
as hereinafter provided.
10.03. Transfer of Deposits, etc. In the event of any termination of this Lease
under Section 10.02, all unearned insurance premiums, all deposits theretofore made by
Tenant with utility companies,any claims for refund of any Imposition,any pending claims
for insurance proceeds or condemnation awards, and all fuel and supplies on the Property
shall be deemed to be and are hereby assigned to and transferred to Landlord to be
applied in payment of Tenant's liability under this Lease, and Tenant shall deliver to
Landlord all existing Subleases.
10.04. Re-entry. In the event of termination of this Lease under Section 10.02 or
by operation of law or otherwise, Landlord may without further notice re-enter and
repossess the Property.
10.05. Injunctive Relief. In the event of any breach or threatened breach by
Tenant of any of the covenants, agreements, terms or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right or remedy allowed at law or in equity or by statute or otherwise
as though re-entry,summary proceedings and other remedies were not provided for in this
Lease.
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10.06. Re-letting by Landlord. If Landlord has the right to terminate this Lease
in accordance with Section 10.02, Landlord may re-let the Property or any part thereof
and receive the rent therefor,whether such rent is in the aggregate greater than or less
than the Rent payable hereunder. Landlord shall not be responsible or liable in any way
for failure to re-let the Property or any part thereof or for failure to collect any rent due
on such re-letting. Tenant gives Landlord the full right to re-enter and re-possess the
Premises as above provided in Section 10.04 in order to consummate any such re-letting.
10.07. Receipt of Monies, No Waiver. No receipt of money by Landlord from
Tenant after termination of this Lease or the giving of any notice of termination of this
Lease shall reinstate, continue or extend the term of this Lease or of any notice of
termination theretofore given to Tenant, or operate as a waiver of Landlord's right to
enforce the payment of Rent and any other payments or charges herein reserved agreed
to be paid by Tenant then or thereafter falling due, operate as a waiver of Landlord's
right to recover possession the Property by proper remedy, it being agreed that after
service of notice to terminate this Lease or the commencement suit or summary
proceedings,or after final order for the possession of the Property,Landlord may demand
and collect any monies due or thereafter falling due in any manner without affecting such
notice,proceeding,order,suit or judgment,and all such monies collected shall be deemed
paid on account of the use and occupancy of the Property or at Landlord's election on
account of Tenant's liability hereunder.
10.08. No Implied Waivers. Landlord's granting of a consent under this Lease, or
Landlord's failure to object to an action taken by Tenant without Landlord's consent under
this Lease, shall not be deemed a waiver by Landlord of its right to require such consent
for any further similar act of Tenant. No waiver by Landlord of any breach of any of the
conditions, covenants or agreements of this Lease shall be construed, taken or held to be
a waiver of any other breach or be a waiver,acquiescence in or consent to any further or
succeeding breach of the same term,condition,covenant or agreement. None of Tenant's
covenants, agreements, obligations or undertakings under this Lease, and no breach
thereof, shall be waived, altered or modified except by a written instrument executed by
Landlord.
10.09. Remedies Not Exclusive. Subject to the provisions of Article 17 hereof,no
right,power or remedy conferred upon or reserved to Landlord under this Lease or under
law shall be considered exclusive of any other right, power or remedy, but such rights,
powers and remedies shall be cumulative and shall be in addition to every other right,
power and remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise, and every right, power and remedy given by this Lease to Landlord
may be exercised from time to time and as often as occasion may arise or as may be
deemed expedient,without precluding Landlord's simultaneous or later exercise of any or
all other rights, powers or remedies. No delay or omission of Landlord to exercise any
right, power or remedy arising from any Default shall impair any such right, power or
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remedy or shall be construed to be a waiver of any such default or an acquiescence
therein.
10.10. Waiver of Notice. Tenant expressly agrees that any notice of intention to
re-enter provided in any statute or to initiate legal proceedings to that end shall run
concurrently with any applicable notice period provided hereby so that any required notice
period shall not be longer than the longer of such statutory notice or notice provided
hereby. Tenant waives, for and on behalf of itself and all persons and parties claiming
through or under it, any and all right of redemption provided by any law or statute now
in force or hereafter enacted or otherwise, for re-entry or repossession or to restore the
operation of the Lease in case Tenant shall be dispossessed by a judgment or by warrant
of any court or judge,or in case of re-entry or repossession by Landlord,or in case of any
expiration or termination of this Lease.
10.11. Suits for Damages. Suit or suits for damages or deficiencies, or for a sum
equal to any installments of rent, Impositions and other charges and payments hereunder
shall be subject to the provisions of Article 17 hereof.
10.12. Bankruptcy. Nothing in this Article contained shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,insolvency,
receivership, reorganization or dissolution proceeding an amount equal to the maximum
allowed by a statute or rule of law governing such proceeding and in effect at the time
when such damages are to be proved, whether or not such amount be greater, equal to
or less than the amount of the damages referred to in any of the preceding Sections.
10.13. Leasehold Mortgage's Rights. Notwithstanding the remedies afforded to
Landlord under this Article X, such remedies shall be subject to and exercisable
subordinate to the Leasehold Mortgagee's rights granted herein and in the Development
Agreement.
ARTICLE 11
Additional Rights and Remedies of Landlord
11.01. Performance by Landlord. If Tenant shall at any time fail to make any
payment or perform any act to be made or performed by Tenant under this Lease beyond
any applicable grace period, or under any Leasehold Mortgage (provided, in the latter
case,a notice of default is required to be and has been given by the mortgagee),Landlord
may at its option (but shall not be required to), after 30 days written notice to Tenant,
make any such payment or perform any such act, and for such purpose Landlord may
enter upon the Property and take all such action thereon as may be deemed by Landlord
necessary or desirable therefor; provided that, if the nature of the matter has created an
emergency,Landlord may enter and take action without notice. Landlord's rights provided
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in this Section 11.01 shall include,without limitation,such rights in the event that Tenant
shall fail to perform any act or make any payment in accordance with the provisions,
conditions, and time limitations contained in Article 5 hereof.
11.02. Indemnification.
(a) Unless arising from Landlord's negligence or intentional misconduct
or a breach of Landlord's obligations under this Lease, Tenant agrees to
indemnify,defend and save Landlord harmless against and from all liabilities,
claims, suits, fines, penalties, damages, losses, charges, costs, expenses and
fees (including attorneys'fees) which may be imposed upon, incurred by or
asserted against Landlord by reason of:
(i) any use,non-use,possession, occupation,condition, operation,
repair, maintenance or management of the Property or any part thereof or
any occurrence of any of the same;
(ii) any action or omission on the part of Tenant or any Subtenant
or licensee, or any of its or their agents, contractors, servants, employees,
licensees or invitees;
(iii) any accident,injury(including death)or damage,regardless of
the cause thereof, to any person or property occurring in, on or about the
Property or any part thereof;
(iv) any contest permitted pursuant to the provisions of Sections
4.03 and 6.06; or
(v) any litigation or proceeding to which Landlord becomes or is
made a party without fault on its part, whether commenced by or against
Tenant,or(provided that Landlord prevails in such litigation or proceeding)
which may be incurred by Landlord in enforcing any of the covenants,
agreements,terms and conditions of this Lease or in obtaining possession of
the Property after an Event of Default or upon expiration or earlier
termination of this Lease; and
(b) Unless arising from Tenant's negligence or intentional misconduct or
a breach of Tenant's obligations under this Lease, Landlord agrees to
indemnify,defend and save Tenant harmless against and from all liabilities,
claims, suits, fines, penalties, damages, losses, charges, costs, expenses and
fees(including attorneys'fees)which may be imposed upon, incurred by or
assessed against Tenant by reason of:
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(i) any action or omission on the part of Landlord or any of its
officials, agents, or employees; or
(ii)any litigation or proceeding to which Tenant becomes or is made
a party without fault on its part,whether commenced by or against Landlord,
or(provided Tenant prevails in such litigation or proceeding)which may be
incurred by Tenant in enforcing any of Landlord's covenants and agreements
contained herein.
1.1.03. Landlord's Right of Inspection. Landlord, upon advance notice, oral or
written,to Tenant,shall have the right during usual business hours during the term of this
Lease to enter the Property for purposes of inspection to determine Tenant's compliance
with this Lease and to exhibit the Property to prospective purchasers, mortgagees or
tenants. Landlord's rights under this Section 11.03 may be exercised on its behalf by any
authorized representatives designated in writing by Landlord.
ARTICLE 12
Eminent Domain
12.01. Total Taking. If,during the Term of this Lease,the entire Property or such
substantial portion of the Property as shall make it economically unfeasible to continue to
operate the remaining portion for the purposes herein stated, shall be taken by the
exercise of the power of eminent domain,this Lease shall terminate on the date of vesting
of title in the condemnor under such eminent domain proceedings and all Rent and other
sums payable by Tenant hereunder shall be prorated to the date of such vesting, and
thereafter Tenant shall be relieved of all obligations to pay the Rent and to otherwise
perform its agreements,obligations and undertakings under this Lease. The award granted
with respect to such eminent domain proceedings shall be divided between Landlord and
Tenant in the following order:
(a) To any Leasehold Mortgagee,an amount sufficient to obtain a release
and satisfaction of the Leasehold Mortgage,
(b) To Tenant, an amount equal to the replacement cost of the
Improvements and the fair market value of the unexpired leasehold estate,reduced
by the amount, if any, paid under the preceding clause (a), and
(c) The balance, if any, shall be paid to Landlord.
12.02. Partial Taking. If, during the Term of this Lease, less than the entire
Property shall be taken by the exercise of the power of eminent domain, and it is
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economically feasible to continue to operate the remaining portion of the Property for the
purposes herein stated, this Lease shall not terminate but shall continue in full force and
effect for the remainder of said term subject to the provisions hereof. The amount of
damages resulting to Landlord and Tenant, respectively, and to their respective interests
in and to the Property and in, to and under this Lease because of any by reason of such
exercise and partial taking under such eminent domain proceedings shall be separately
determined and computed by the court having jurisdiction of such proceedings and
separate awards and judgments with respect to such damages to Landlord and Tenant
shall be made and entered and said awards shall be paid to Landlord and Tenant,
respectively, in accordance therewith; provided that Tenant shall receive that portion of
the award made as consequential damages to the Improvements located on the remaining
portion of the Property and Tenant at its cost shall forthwith restore the remaining portion
of the Improvements to substantially the same condition as existing prior to such taking
(to the extent such restoration is possible, taking into account the extent to which a
portion of the Improvements have been removed as a result of the taking),using such part
of the award received by Tenant in said eminent domain proceeds as may be necessary
therefor and, if the amount of such award is not sufficient, Tenant may,but shall not be
required to provide additional funds required. If the total of the proceeds received by
Tenant under this Section 12.02 exceeds $500,000, then Tenant shall complete all such
Restoration in the manner provided in Article 8.
12.03. Temporary Taking. In the event of a taking for a temporary use,the Lease
and the Term shall continue and the Rent thereafter due and payable shall not be reduced
or abated. Tenant shall continue to perform and observe all of the other covenants,
agreements, terms and conditions of this Lease. The entire amount of any proceeds with
respect to such temporary taking,whether paid by way of damages,rent or otherwise,shall
be deposited with Landlord and,provided no notice has been given to Tenant by Landlord
of a Default which has not been cured, such amount shall be apportioned between
Landlord and Tenant as of the expiration date of such Term. Notwithstanding the
foregoing,if the award is payable in a lump sum,or is payable in any manner other than
installments in the nature of monthly or quarterly rental payments,then the Landlord shall
retain such amount as is estimated to be required for the payment of all Rent, for the
period of such temporary taking,and the amounts estimated to assure compliance with the
requirements of the following sentence, and any balance over and above the estimated
amount required as aforesaid shall be paid to Tenant (or to Tenant and Landlord
apportioned as of the expiration date of the Term if the taking is for a period extending
beyond such expiration).
12.04. Other Governmental Action. In the case of any governmental action not
resulting in the taking of any portion of the Property but creating a right to compensation
therefor, such as, without limitation,a change of the grade of any street, this Lease shall
continue in full force and effect without reduction or abatement of any Rent thereafter
due and payable. If such governmental action results in any damage to the Improvements
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located on the Land,Tenant shall be entitled to receive such portion of the proceeds (or
all of the proceeds, if required for the purpose) estimated to be necessary to remedy any
such damage, and Tenant shall proceed with reasonable diligence to make all Capital
Improvements necessary so to remedy such damage to the extent economically feasible,
and if the amount of such proceeds is not sufficient, Tenant shall have the right,but not
the obligation,to provide the additional funds required. Any balance remaining from such
proceeds, or if no damage is involved then all of such proceeds, shall be divided between
Landlord and Tenant as their respective interests may appear.
ARTICLE 13
Estoppel Certificates
Upon written request by either party, the other party will certify promptly to the
requesting party, or to any proposed assignee or grantee or mortgagee or trustee under
deed of trust or trust deed or the proposed assignee of such mortgagee, deed of trust or
trust deed, whether or not this Lease is valid and subsisting,whether or not it has been
modified (and if there are modifications stating them) and whether or not the party
executing the certificate knows of any default or breach by the other party under any of
the terms of this Lease (and if any exists, stating them). If the party to whom a written
request is directed under the preceding sentence shall fail to furnish the requested
certificate within 20 days after the making of such request,then by such failure such party
shall be deemed to have certified to the requesting party and to any proposed assignee
or grantee or mortgagee or trustee under a deed of trust or trust deed, that this Lease
is valid and subsisting and that there are no defaults or breaches by the other party under
the terms of this Lease. Upon the issuance of a certificate of occupancy for the Project
by the City of Elgin in its municipal capacity following substantial completion of the
rehabilitation and restoration of the Improvements in accordance with the Final Plans(the
"Completion Date")the Landlord shall give to Tenant an estoppel certificate certifying all
obligations set forth in Section 5.03 of this Lease have been satisfied.
ARTICLE 14
Surrender at End of Term: Title to Improvements
14.01. Surrender at End of Term. On the last day of the Term, or upon any
earlier termination of this Lease or upon any re-entry by Landlord upon the Property
pursuant to Article 10, Tenant shall well and truly surrender and deliver up to Landlord
the Property without fraud or delay and in good order, condition and repair (subject to
the provisions of Article 8 and Article 12 as to Tenant's limited obligation to make capital
improvements free and clear of all lettings, occupancies, Subleases and licenses and free
and clear of all liens and encumbrances other than the Exceptions and those, if any,
-31-
existing at the date hereof, or created by Landlord, without any payment or allowance
whatever by Landlord on account of or for any Improvements erected or maintained on
the Land at the time of the surrender or for the contents thereof, or fixtures, or articles
of personal property or equipment therein or appurtenances thereto,whether or not the
same or any part thereof shall have been constructed by, paid for, or purchased by
Tenant. Tenant hereby waives any notice now or hereafter required by law with respect
to vacating the Property at any such termination date.
14.02. Title to Improvements. Landlord recognizes and agrees that through the
Term of this Lease and until expiration or any termination of this Lease title to all
Improvements, existing and as may be constructed by Tenant shall be in Tenant and that
Tenant has, and shall be entitled to, all rights and privileges of ownership of such
Improvements. Title to such Improvements located on the Land shall automatically vest
in Landlord on the last day of the Term or upon any earlier termination of this Lease by
reason of Tenant's Event of Default and Landlord's exercise of remedies under Article X,
without the payment of any consideration therefor, and without the necessity for the
execution and delivery by Tenant of any instrument transferring title. Notwithstanding the
foregoing,Tenant covenants and agrees that upon the expiration or any termination of this
Lease as aforesaid, Landlord is hereby irrevocably appointed attorney-in-fact for Tenant
to execute and deliver any such instrument or document in the name of Tenant. Any
personal property of Tenant which shall remain in said Improvements after the termination
of this Lease and the removal of Tenant from said Improvements, may, at the option of
Landlord, be deemed to have been abandoned by Tenant and may be retained by
Landlord as its property or may be disposed of,without accountability,in such manner as
Landlord may see fit. The provisions of this Article shall survive any termination of this
Lease. Notwithstanding the foregoing, this Lease shall not create an automatic right of
reversion of title by its terms other than expiration of the stated Term by passage of
time,but all rights and remedies available to Landlord for re-entry by reason of an Event
of Default shall be exercisable only as provided herein.
14.03 Surrender Fee. On the last day of the Term, occurring by passage of time,
Landlord shall pay to Tenant a Surrender Fee in immediately available funds as
consideration for the Tenant's vacation of the Property and transfer of title to the
Improvements. No Surrender Fee shall be payable in the event Landlord takes possession
of the Project under the provisions of Article 8, Article 1.0 or Article 12.
ARTICLE 15
Notices
All notices or demands under this Lease shall be in writing and shall be served and
given by personal delivery or by certified mail, return receipt requested, addressed (i) if
-32-
to Landlord, to such person and at such address as Landlord may by notice in writing
designate to Tenant, and in the absence of such designation, to The City of Elgin,
Attention: City Manager,with a copy to the Assistant Corporation Counsel, and(ii) if to
Tenant at the address designated by Tenant in writing to Landlord,and in the absence of
any such designation then c/o Merriam/Zuba, Ltd., 305 South Green Street, Chicago,
Illinois, attention: Henry Zuba and a copy to Mark W. Burns, c/o Keck, Mahin & Cate,
233 South Wacker Drive, 83rd floor, Chicago, Illinois 60606. In addition, concurrently
with the giving of any notice or demand by Landlord to Tenant, Landlord shall furnish a
copy thereof to any Leasehold Mortgagee. By written notice served in the foregoing
manner,either party shall have the right to designate another person and another address
to which notices and demands shall thereafter be sent. Each such notice or demand,when
given by mail,shall be deemed served,given and received on the third business day after
the postmark date which it bears.
ARTICLE 16
Miscellaneous
16.01. Covenants Running,With Land. All terms,provisions,conditions,covenants,
agreements, obligations and undertakings contained in this Lease shall, except as herein
specifically limited or otherwise provided, extend and inure to and be binding upon
Landlord's successors and assigns and Tenant's successors and assigns as if such successors
and assigns were in each case specifically named, and shall be construed as covenants
running with the land. Wherever reference is made in this Lease to either party, it shall
be held to include and apply to such successors and assigns.
16.02. Amendments in Writing. In no event shall this Lease or any terms,
provisions or conditions hereof be deemed to be amended, modified or changed in any
manner whatsoever, except and unless set forth and provided for in writing executed by
Landlord and Tenant, respectively.
16.03. Quiet Possession. Landlord represents and warrants that it has full right and
power to execute and perform this Lease and to convey the rights and interest demised
hereby. Landlord agrees that during the Term and so long as Tenant performs Tenant's
agreements,obligations and undertakings hereunder,Tenant shall and may peaceably and
quietly have, hold and enjoy the Property demised hereby without molestation or
disturbance by or from Landlord and free of any encumbrance created or suffered by
Landlord except those expressly described herein to which this Lease is made subject and
subordinate.
16.04. Time of Essence. Time is of essence of this Lease and of the performance
of the respective obligations, covenants and agreements of Landlord and Tenant
-33-
hereunder. If the last day for the performance of any obligation hereunder occurs on a
Saturday,Sunday or legal holiday,the time for such performance shall be extended to the
next regular business day.
16.05. Approvals. All approvals or consents required under the provisions hereof
shall be in writing. Unless herein expressly otherwise provided, any approval or consent
of the Landlord shall be sufficiently give if signed by the Landlord's City Manger. All
disapprovals or the withholding of consent by Landlord shall be only upon a reasonable
basis given in writing with sufficient rationale as to enable Tenant to formulate a
alternative response or to contest.
16.06. Condition of Property. Landlord has made no warranties or representations
whatever with respect to the Property, and Tenant accepts the Property "as is".
16.07. Captions. The table of contents and captions of this Lease are for
convenience of reference only and in no way define, limit or describe the scope or intent
of this Lease nor in any way affect this Lease.
1.6.08. Partial Invalidity. If any term, provision or condition of this Lease or its
application to any person or circumstances shall to any extent be invalid or unenforceable,
the remainder of this Lease of the application of such term, provision or condition to
persons or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby, and each term, provision and condition of this Lease shall
be valid and be enforced to the fullest extent permitted by law.
16.9. Applicable Law. This Lease shall be construed and enforced in accordance
with the laws of the State of Illinois.
16.10. Memorandum of Lease. At the request of either party,Landlord and Tenant
shall execute and record a memorandum of this Lease in form satisfactory to both parties,
or this Lease may be recorded in its entirety.
ARTICLE 17
Exculpatory Provisions
17.01. Exculpatory Provision-Landlord. It is expressly understood and agreed by
Tenant that none of Landlord's covenants, undertakings or agreements are made or
intended as personal covenants, undertakings or agreements of Landlord, but are for the
purpose of binding the premises demised hereby and liability or damage for breach for
nonperformance by Landlord shall be collectible only out of the Property demised hereby
and no personal liability is assumed by nor at any time may be asserted or enforced
-34-
against Landlord or any of its officials, employees or agents or any of its or their heirs,
legal representatives,successors or assigns,all such personal liability,if any,being expressly
waived and released by Tenant.
17.02. Exculpatory Provision-Tenant. Neither the Tenant nor any partner thereof
shall be personally liable for payment or performance under this Lease, it being
acknowledges that the Landlord's exclusive rights and remedies hereunder shall be for the
termination of this Lease and re-entry and possession of the Property.
17.03. Partnership's Rights. Upon an assignment of this Lease by the Tenant and
assumption thereof by the Project Partnership,the Project Partnership shall be entitled to
all of the rights and privileges,and exculpation contained in the Rider attached hereto and
made a part hereof by this reference.
IN WITNESS WHEREOF,this Lease is executed as of the date first written above
by the duly authorized officers or representatives of the parties hereto.
LANDLORD:
CITY OF ELGIN, an Illinois
municipal corporation
By:
City Manager
TENANT:
CENTER CITY JOINT VENTURE
By: Merriam/Zuba, Ltd.,
managing partner
By:
President
-35-
GROUND LEASE RIDER
This Ground Lease Rider(Rider') is attached to and made a part of the Ground
Lease dated , 1992, by and between the City of Elgin, Illinois as Landlord and
Center City Joint Venture as Tenant.
The parties hereto agree that the following covenants, terms, and conditions shall
be part of and shall modify or supplement the Ground Lease upon the assignment or
transfer of this Lease from the Joint Venture to the Project Partnership, and that in the
event of any inconsistency or conflict between the covenants, terms, and conditions of the
Ground Lease and this Rider,the following covenants, terms, and conditions shall control
and prevail.
1. The Ground Lease is a nonrecourse obligation of Tenant. Neither Tenant nor any
of its partners (or, if Tenant is the Project Partnership, the general and limited
partners of the Project Partnership), nor any other party shall have any personal
liability for the Ground Lease. The sole recourse of Landlord under the Ground
Lease shall be the exercise of its rights against the Project and related security
thereunder.
2. Neither the withdrawal, removal,replacement, and/or addition of a general and/or
limited partner of the Project Partnership,nor the withdrawal,replacement, and/or
addition of any of its limited partners' general partners, shall constitute a default
under the Ground Lease provided that any required substitute general partner is
reasonably acceptable to Landlord and is selected with reasonable promptness.
3. If a monetary event of default occurs under the terms of the Ground Lease, prior
to exercising any remedies thereunder, Landlord shall give Tenant and each of the
general and limited partners of the Project Partnership, as identified to the
Landlord, simultaneous written notice of such default. Tenant shall have a period
of thirty(30) days after such notice is given within which to cure the default prior
to exercise of remedies by Landlord under the Ground Lease.
4. If a nonmonetary event of default occurs under the Ground Lease, prior to
exercising any remedies thereunder Landlord shall give Tenant and each of the
general and limited partners of the Project Partnership, as identified to the
Landlord,simultaneous written notice of such default. If the default is reasonably
capable of being cured within thirty (30) days, Tenant shall have such period to
effect a cure prior to exercise of remedies by Landlord under the Ground Lease.
If the default is such that it is not reasonably capable of being cured within thirty
- 36 -
(30) days, and if Tenant (a) initiates corrective action within said period, and (b)
diligently,continually, and in good faith works to effect a cure as soon as possible,
then Tenant shall have such additional time as is reasonably necessary to cure the
default prior to exercise of any remedies by Landlord. If Tenant fails to take
corrective action or to cure the default within a reasonable time,Landlord shall give
Tenant and each of the general and limited partners of the Project Partnership
written notice thereof,whereupon the limited partner may remove and replace the
general partner with a substitute general, partner who shall effect a cure within a
reasonable time thereafter in accordance with the foregoing provisions. In no event
shall Landlord be precluded from exercising remedies if its security becomes or is
about to become materially jeopardized by any failure to cure a default or the
default is not cured within one hundred eighty (180) days after the first notice of
default is given.
5. In the event of any fire or other casualty to the Project or eminent domain
proceedings resulting in condemnation of the Project or any part thereof, Tenant
shall have the right to rebuild the Project, and to use all available insurance or
condemnation proceeds therefor, provided that (a) such proceeds are sufficient to
rebuild the Project or if such proceeds are insufficient then Tenant shall have
funded any deficiency, (b) Landlord shall have the right to approve plans and
specifications for any major rebuilding and the right to approve disbursements of
insurance or condemnation proceeds for rebuilding under a construction escrow or
similar arrangement,and(c)no other material default then exists under the Ground
Lease. If the casualty or condemnation affects only part of the Project and total
rebuilding is infeasible, then proceeds may be used for partial rebuilding.
6. There shall be no default for construction or rehabilitation delays beyond the
reasonable control of Tenant,provided that such delays do not exceed one hundred
eighty(180) days.
7. In any approval, consent, or other determination by Landlord required under the
Ground Lease, Landlord shall act reasonably and in good faith.
- 37-
IN WITNESS WHEREOF,the undersigned have caused this Rider to be executed
this_day of 19_
LANDLORD:
THE CITY OF ELGIN, ILLINOIS
By:
TENANT:
CENTER CITY JOINT VENTURE
By: Merriam/Zuba, Ltd.
Managing Partner
By:
Its President
,46943�.
- 38-
ACQUISITION CONTRACT
THIS ACQUISITION CONTRACT is made and entered into this
8th day of July, 1992, by and between the Center City Joint
Venture, an Illinois general partnership, or its successor or
assigns (the "Developer") and the City of Elgin, Illinois, an
Illinois municipal corporation (the "City") .
RECITALS°
A. The Developer and City have heretofore entered into
a certain Development Agreement dated as of July 8, 1992, (the
"Development Agreement") which provides for (i) the acquisition by
Developer of certain Real Estate and rights under a Vacant Lot
Lease Agreement, collectively referred to as the "Land" as
described in the Development Agreement, and (ii) the acquisition
and development of the Improvements located on the Real Estate,
known as the Douglas Hotel, into 45-residential housing units
designed for the elderly who qualify as low or lower income
families under Section 42 of the Internal Revenue Code (the "Code")
with preference given to residents of the City of Elgin to the
extent permitted by the Code and applicable law.
B. Developer has entered into an Assignment of Option
dated June 12, 1992 with North West Housing Partnership ("North
West") pursuant to which Developer has acquired all rights, title
and interest of North West in and to a certain Grant of Option to
Purchase Real Estate dated December 13, 1991 (the "Option") for
purchase of the Land and Improvements, from the Seller identified
therein, for the purchase price of $145,000 (the "Purchase Price")
plus and minus prorations and other adjustments as called for in
the Option.
C. Developer desires to sell to the City and the City
desires to acquire from Developer the Land and thereafter the
parties hereto desire to enter into a Ground Lease of the Land as
provided in the Development Agreement.
NOW THEREFORE, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and as
provided in the Development Agreement, the parties do hereby enter
into this Acquisition Contract and agree to the following.
1. Subject to the terms and conditions herein set
forth, Developer hereby agrees to sell the Land to the City for a
Purchase Price of $145,000, plus or minus prorations.
2. Upon Developer's compliance with the terms and
conditions herein set forth, the City shall acquire the Land for
the Purchase Price of $145,000, plus or minus prorations.
3. The Developer and the City agree with one another
that each will use their best efforts to meet the terms and
conditions of the Option which are within the control and power of
the respective party, and to timely execute and deliver such
documents and instruments as may be necessary or appropriate for
the respective party, to consummate the sale of the Land from the
Seller to the Developer under the Option, and the sale of the Land
from the Developer to the City under this Acquisition Contract.
4. The obligations of Developer to sell the Land
pursuant to this Acquisition Contract is specifically subject to
the condition precedent that Developer acquire the Land and
Improvements from the Seller pursuant to the Option.
5. The parties hereto intend that this transaction be
consummated concurrent with Developer's closing of the acquisition
of the Land and Improvements from the Seller. Therefore, the
closing date for the sale and purchase under this Acquisition
Contract shall be the closing date established under the Option.
Developer shall use its best efforts to give the City not less than
seven days advance written notice of the time, date and place of
the closing under the Option, and in all events shall send copies
of all notices regarding the exercise of the Option, and the
determination of closing dates. The closing of this transaction
shall be through a customary deed and money escrow established with
the escrow agent under the Option. All documents and instruments
shall be delivered and the settlement of the Purchase Price and
adjustments shall be made through the escrow. At the closing
Developer shall deliver to the City, at no cost or expense of the
City, the following:
A. Warranty Deed;
B. Owner's Policy of Title Insurance from a Company
acceptable to the City insuring the City as owner
of fee simple in the Land subject only to
encumbrances reasonably acceptable to the City;
C. Survey as delivered under the Option;
D. Evidence of payment of State of Illinois, County and
local transfer taxes;
E. Evidence of the Developer's compliance with all
applicable provisions of the Illinois Responsible
Property Transfer Act of 1988, Ill. Rev. Stat.,
ch.30, §901, et sea. ("IRPTA") indemnity for any
failure to so comply with IRPTA; [The City agrees
to waive all time periods for delivery of the IRPTA
disclosure document and, when received, the City
agrees to acknowledge receipt and cooperate with
Developer in filing a copy with IEPA as required by
Section 6 of IRPTA];
F. Evidence of the Developer's compliance with
provisions of the Illinois Income Tax Act ("Act")
regarding the notifications of the intended sale and
purchase of the Land or an affidavit of Developer
that no liability exists under the Act together with
an indemnity in favor of the City; and
G. Evidence of Developer's liability insurance meeting
requirements of not less than $1,000,000 of coverage
for a single occurrence and $5,000,000 in the
aggregate.
At the closing, the City will pay the Purchase Price as
adjusted by prorations.
6. Possession will be delivered at the closing subject
to a concurrent execution and delivery of the Ground Lease pursuant
to which Developer shall have all of the rights of the tenant under
the Ground Lease in and to the Land.
7. Developer and City each represent and warrant that
it has not dealt with, nor does it have any knowledge of any broker
or other party who has or may have any claim against the Developer
or City for a brokerage commission or finder's fee or like payment
arising out of or in connect with the sale and purchase of the
Land, except those parties listed in paragraph R-11 of the Option
whose commissions and fees are to be paid by Seller.
8. In the event of a default by Developer under this
Acquisition Contract or the Development Agreement, and after any
applicable cure period has expired, the City shall have the right
to terminate all rights of Developer under this Acquisition
Contract and the Development Agreement as its sole and exclusive
remedy.
9. This Acquisition Contract may be assigned by Center
City Joint Venture to an Illinois limited partnership in which
Developer shall act as the general partner (the "Project
Partnership") for the purposes of carrying out the Development,
provided such assignment shall be in writing and contain an
assumption by the Project Partnership of the obligations of the
Developer under the Development Agreement and this Acquisition
Contract.
10. All capitalized terms as used in this Acquisition
Contract, unless defined elsewhere herein shall have the meanings
ascribed to them in the Development Agreement.
IN WITNESS WHEREOF, the parties have caused this
Acquisition Contract to be executed as of the date first above
written.
CITY DEVELOPER
The City of Elgin Center City Joint Venture
By: By: Merriam/tuba, Ltd.
Name:
Title: By:
Henry 'Zuba� President
(14694.acq)
ACQUISITION CONTRACT
THIS ACQUISITION CONTRACT is made and entered into this
8th day of July, 1992, by and between the Center City Joint
Venture, an Illinois general partnership, or its successor or
assigns (the "Developer") and the City of Elgin, Illinois, an
Illinois municipal corporation (the "City") .
RECITALS:
A. The Developer and City have heretofore entered into
a certain Development Agreement dated as of July 8, 1992, (the
"Development Agreement") which provides for (i) the acquisition by
Developer of certain Real Estate and rights under a Vacant Lot
Lease Agreement, collectively referred to as the "Land" as
described in the Development Agreement, and (ii) the acquisition
and development of the Improvements located on the Real Estate,
known as the Douglas Hotel, into 45-residential housing units
designed for the elderly who qualify as low or lower income
families under Section 42 of the Internal Revenue Code (the "Code")
with preference given to residents of the City of Elgin to the
extent permitted by the Code and applicable law.
B. Developer has entered into an Assignment of Option
dated June 12, 1992 with North West Housing Partnership ("North
West") pursuant to which Developer has acquired all rights, title
and interest of North West in and to a certain Grant of Option to
Purchase Real Estate dated December 13, 1991 (the "Option") for
purchase of the Land and Improvements, from the Seller identified
therein, for the purchase price of $145,000 (the "Purchase Price")
plus and minus prorations and other adjustments as called for in
the Option.
C. Developer desires to sell to the City and the City
desires to acquire from Developer the Land and thereafter the
parties hereto desire to enter into a Ground Lease of the Land as
provided in the Development Agreement.
NOW THEREFORE, for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and as
provided in the Development Agreement, the parties do hereby enter
into this Acquisition Contract and agree to the following.
1. Subject to the terms and conditions herein set
forth, Developer hereby agrees to sell the Land to the City for a
Purchase Price of $145,000, plus or minus prorations.
2. Upon Developer's compliance with the terms and
conditions herein set forth, the City shall acquire the Land for
the Purchase Price of $145,000, plus or minus prorations.
3. The Developer and the City agree with one another
that each will use their best efforts to meet the terms and
conditions of the Option which are within the control and power of
the respective party, and to timely execute and deliver such
documents and instruments as may be necessary or appropriate for
the respective party, to consummate the sale of the Land from the
Seller to the Developer under the Option, and the sale of the Land
from the Developer to the City under this Acquisition Contract.
4. The obligations of Developer to sell the Land
pursuant to this Acquisition Contract is specifically subject to
the condition precedent that Developer acquire the Land and
Improvements from the Seller pursuant to the Option.
5. The parties hereto intend that this transaction be
consummated concurrent with Developer's closing of the acquisition
of the Land and Improvements from the Seller. Therefore, the
closing date for the sale and purchase under this Acquisition
Contract shall be the closing date established under the Option.
Developer shall use its best efforts to give the City not less than
seven days advance written notice of the time, date and place of
the closing under the Option, and in all events shall send copies
of all notices regarding the exercise of the Option, and the
determination of closing dates. The closing of this transaction
shall be through a customary deed and money escrow established with
the escrow agent under the Option. All documents and instruments
shall be delivered and the settlement of the Purchase Price and
adjustments shall be made through the escrow. At the closing
Developer shall deliver to the City, at no cost or expense of the
City, the following:
A. Warranty Deed;
B. Owner's Policy of Title Insurance from a Company
acceptable to the City insuring the City as owner
of fee simple in the Land subject only to
encumbrances reasonably acceptable to the City;
C. Survey as delivered under the Option;
D. Evidence of payment of State of Illinois, County and
local transfer taxes;
E. Evidence of the Developer's compliance with all
applicable provisions of the Illinois Responsible
Property Transfer Act of 1988, Ill. Rev. Stat.,
ch.30, §901, et sea. ("IRPTA") indemnity for any
failure to so comply with IRPTA; [The City agrees
to waive all time periods for delivery of the IRPTA
disclosure document and, when received, the City
agrees to acknowledge receipt and cooperate with
Developer in filing a copy with IEPA as required by
Section 6 of IRPTA];
F. Evidence of the Developer's compliance with
provisions of the Illinois Income Tax Act (11Act")
regarding the notifications of the intended sale and
purchase of the Land or an affidavit of Developer
that no liability exists under the Act together with
an indemnity in favor of the City; and
G. Evidence of Developer's liability insurance meeting
requirements of not less than $1,000,000 of coverage
for a single occurrence and $5,000,000 in the
aggregate.
At the closing, the City will pay the Purchase Price as
adjusted by prorations.
6. Possession will be delivered at the closing subject
to a concurrent execution and delivery of the Ground Lease pursuant
to which Developer shall have all of the rights of the tenant under
the Ground Lease in and to the Land.
7. Developer and City each represent and warrant that
it has not dealt with, nor does it have any knowledge of any broker
or other party who has or may have any claim against the Developer
or City for a brokerage commission or finder's fee or like payment
arising out of or in connect with the sale and purchase of the
Land, except those parties listed in paragraph R-11 of the Option
whose commissions and fees are to be paid by Seller.
S. In the event of a default by Developer under this
Acquisition Contract or the Development Agreement, and after any
applicable cure period has expired, the City shall have the right
to terminate all rights of Developer under this Acquisition
Contract and the Development Agreement as its sole and exclusive
remedy.
9. This Acquisition Contract may be assigned by Center
City Joint Venture to an Illinois limited partnership in which
Developer shall act as the general partner (the "Project
Partnership") for the purposes of carrying out the Development,
provided such assignment shall be in writing and contain an
assumption by the Project Partnership of the obligations of the
Developer under the Development Agreement and this Acquisition
Contract.
10. All capitalized terms as used in this Acquisition
Contract, unless defined elsewhere herein shall have the meanings
ascribed to them in the Development Agreement.
IN WITNESS WHEREOF, the parties have caused this
Acquisition Contract to be executed as of the date first above
written.
CITY DEVELOPER
The City of Elgin Center City Joint Venture
By: By: Merriam/Zuba, Ltd.
Name•
Title• By:
Henry Zuba resident
(14694.acq)