I. m.§.a2_ onion z==_.z: u$2§§_
>U._ mc_._.m._.mmma Page 6 of 2mm‘om>.m>z:.>:oz wm>o: w«>zo>mo m_.onmmmom_mm o2r<. 20 z_oo_m_o>:oz >_._.O<oommmox_mw ._.mmmo_._xma oxmomv. .80 mm H :>r._.Oz xxomn. mmmwa xm.8 qmcm mmmmnmm 3 A >_._.o<<>znm _uox<<>momu. ooooo >_._.o<<>zom momo:>zmmm mm 4 mo. om<<>xomn . o _uxm<>__._zo<<>ommmom_20 _zm._.>_._.
Ir T DcO._.>._._Oz 34>_.m mac42». mouuouu _uom<<>zuw_u> _u_.m_m_..mum_u>ocqm?m _zm4>_._.mEmmoxmw >mS w>mo~ mambo mow<<>xomu>_zmq>_._.imm_umxm oo>_.m >m8\>m8 $3.2 _..ox<<>mom_u> _u3a._:m:m_u_n_m_.Eom: mcm.» 3.3 _nox<<>mumv> _u_.am=.3.. mmnxma u?bm ==:o.mzo:.._.mxu_..._mmxmau» Poo manna._.o3_ uu.>wm.n~ ma2 Oco?. o:
Enllniql .:l.aIulI Os .2: Ioooluliol ‘Carin! )l..lI.-clip nan I.l.¢.IOI Io-Bxvtulloa Iv 0:10.. Flat 03 5.: 3569:: Lin! 1...: VIII so I11. ninlllls tutu: Vltaalin .: 3... an Iolllnl aviat-
).IlD.IBD( 4.3! Dual
;>\(<<( ??v-_J>\.W.uQ“?v?0AW 0°-.-J Page 111 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Paul Moyano, CC: David Stoneback, Public Works Agency Director; Lara Biggs - Bureau Chief of Capital Planning / City Engineer Subject: Change Order No. 2 for 2019 Structure Lining (Bid No. 19-15) Date: November 11, 2019
Recommended Action: Staff recommends that City Council authorize the City Manager to execute Change Order No. 2 for the 2019 Structure Lining (Bid No. 19-15) with Midas Midwest, LLC d/b/a Culy Contracting (5 Industrial Park Drive, P.O. Box 29, Winchester, IN 47394) for a 60 day contract extension. There is no change to the contract amount associated with this change order.
Funding Source: Funding for this project is provided by the Sewer Fund (Account 515.40.4535.62461-419005) which has an approved FY 2019 budget of $165,000 for this work.
Council Action: For Action
Summary: On May 28, 2019, City Council awarded the 2019 Structure Lining to Culy Contracting, LLC. This contract includes the rehabilitation of 371 combined and relief sewer structures by the application of a cementitious and epoxy structural lining system, including cleaning and surface preparation of the structures. The structures were identified as needing rehabilitation based on results of inspections performed by the City of Evanston’s Public Works Agency in 2018 and early 2019.
On October 7, 2019, staff approved Change Order No. 1. Since the project was bid, Culy Contracting, an Contracting, Culy d/b/a requiring Midwest, Midas became LLC LLC stopprocess work pedamendment for contract contract. the to amendment The approximately 30 days, which was addressed by Change Order No. 1. There was no change in cost associated with this change order.
A9. Page 112 of 574
Analysis: Since early October, there have been many days where the weather did not allow the lining work to occur. Because of the weekly forecasts, it has been difficult for the contractor to plan mobilizations ahead of time. This Change Order No. 2 will extend the contract completion date by an additional 60 days due to delays in work caused by inclement weather.
Legislative History: City Council approved the award of the 2019 Structure Lining contract on May 28, 2019. Staff authorized Amendment No. 1 on October 7, 2019. Staff authorized Change Order No. 1 on October 7, 2019.
Attachments: Change Order #2 Proposal Change Order #2 Form
Page 2 of 4
A9. Page 113 of 574 Page 3 of 4
A9. Page 114 of 574 CITY OF EVANSTON CHANGE ORDER
Order No. 002 Date: October 31, 2019 Agreement Date: Julv 3. 2019
PROJECT: 2019 Structure Linind. Bid #19-15 OWNER: City of Evanston CONTRACTOR Midas Midwest LLC dlbla "Cu|v Contracting”
The following changes are hereby made to the AGREEMENT:
Contract time extension due to delays in work caused by the need for a contract amendment and inclement weather. No work shall be performed when overnight lows are below 35 degrees Fahrenheit.
Change to CONTRACT PRICE:
Original CONTRACT PRICE: $ 100,420.00 Current CONTRACT PRICE adjusted by previous CHANGE ORDERS $ 100,420.00 Total change in CONTRACT PRICE for this CHANGE ORDER 002 $ 0.00 The CONTRACT PRICE including this CHANGE ORDER willbe $ 100,420.00
Original COMPLETION DATE October 1 2019 Current COMPLETION DATE adjusted by previous CHANGE ORDERS October 31 2019 Total Change in CONTRACT TIMEfor this CHANGE ORDER 60 The COMPLETION DATE including this CHANGE ORDER will be December 30 2019
Accepted by (Contractor): Midas ldwest LLC dlbla "Cu|y Contracting" mmDa e Approved by (Owner): City of Evanston Date
Page 4 of 4
A9. Page 115 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Shane Cary, CC: David Stoneback - Public Works Agency Director; Lara Biggs, Bureau Chief of Capital Planning / City Engineer; Stefanie Levine - Senior Project Manager Subject: Change Order No. 2 to the Contract With Bodala LLC dba Central Rug and Carpet for the Fleetwood-Jourdain Interiors Renovation (RFP 19- 13) Date: November 11, 2019
Recommended Action: Staff recommends the City Council authorize the City Manager to execute Change Order No. 2 to the contract for the Fleetwood-Jourdain Interior Renovation (RFP 19-13) with Bodala, LLC dba Central Rug and Carpet (3006 Central Street, Evanston, IL) in the amount of $13,224. This will increase the current overall contract amount from $651,349 to $664,573. There is no time extension associated with this change order.
Funding Source: Funding will be provided from the Capital Improvement Fund 2019 General Obligation Bonds (415.40.4119.65515 – 618008). This change order will exceed the project budget, but funding is available from savings in other projects awarded in 2019.
Council Action: For Action
Summary: On August 5, 2019, City Council approved a contract for the construction of the Fleetwood- Jourdain Interior Renovation project with Central Rug and Carpet. The scope of this project includes: • Building Entryway – Replace lighting; paint walls; install new flooring • Auditorium – Remove unused heating cabinets along the west wall; relocate handicapped lift; install new stairs, flooring, ceiling treatment, window treatments, flooring, floating wall to provide a storage area, furniture for lounge area; paint walls
A10. Page 116 of 574 • Kitchen – Install new flooring, ceiling, appliances, cabinets; lower serving window to ADA-compliant height • Hallway – Replace flooring • Dance Studios – Refinish hardwood flooring, paint walls • Offices – Lower customer service counter to ADA-compliant height On October 14, 2019, City Council approved Change Order 1, which included changes in the kitchen plumbing for code requirements and replacement of the existing lobby flooring with new terrazzo flooring.
Analysis: During the construction of the Fleetwood-Jourdain Community Center Interior Renovation, there were items discovered that needed to be addressed in the project that were not in the original scope.
1. Kitchen Drain Line - As the concrete floor slab in the kitchen was opened up to install the grease trap approved at the 10/14 meeting, it was found that the existing drain line from the sink is both undersized and pitched in the wrong direction. This is a code violation and needs to be addressed. The space is too tight to change to a larger size, but the drain line can be pitched correctly. The cost for this work is $4,470. 2. Kitchen Sink Plumbing Chase - The area behind the kitchen sink needs to have a wall built out to provide a plumbing chase - this will allow the sink to be properly attached to the wall as well as providing a space for the plumbing to be. This cost for this work is $1,158. 3. Kitchen Counter Overhead Coiling Door - The existing overhead coiling door for the countertop to the kitchen was removed as part of the project. This is because the countertop was lowered to make the kitchen counter ADA-compliant, and the size of the opening was increased. The new overhead coiling door was not included in the drawings, but it is needed because it is a crucial part of securing the kitchen when it is not in use. The cost to install this door is $6,383. 4. Auditorium Stair Support - The new auditorium stairs extend the entire width across the auditorium. On the west end, there is a duct that has been abandoned in place under the lobby floor slab, which prevents the new stairs from being properly supported by the auditorium wall. The least expensive option to remedy this is to install a foam product designed for inexpensively filling voids and which has the capability of providing the needed structural support for the stairs. The cost for this installation is $1,213. The total cost of the recommended changes is $13,224. There is no time extension included in this change order.
Legislative History: On February 26, 2018, City Council approved an agreement with Designs 4 Dignity for interior design services On May 28, 2019, City Council approved a construction contract with W Construction for the interior renovations On August 5, 2019, City Council approved a construction contract with Central Rug and Carpet On October 14, 2019, City Council approved Change Order 1 with Central Rug and Carpet
Page 2 of 4
A10. Page 117 of 574
Attachments: Change Order 2
Page 3 of 4
A10. Page 118 of 574 CITY OF EVANSTON CHANGE ORDER
Order No. 002 Date: 10/29/2019 Agreement Date: 09/04/2019
PROJECT: Fleetwood-Jourdain Interiors RFP 19-13 OWNER: City of Evanston CONTRACTOR: Bodala, LLC dba Central Rug and Carpet
The following changes are hereby made to the AGREEMENT: 1. Plumbing chase and storage room concrete Add $1,158.00
2. Replace 3” sanitary underground Add $4,47o_oo
3. Overhead coiling door at kitchen pass-through Add . $6,383.00
4. Concrete work at duct void for auditorium stairs Add $1,213.00 Total Change $ 13,224.00
Change to CONTRACT PRICE: $13,224.00
Original TOTAL CONTRACT PRICE: $ 599,000.00 Current CONTRACT PRICE adjusted by previous CHANGE ORDERS $ 651,349.00 Total change in CONTRACT PRICE for this CHANGE ORDER $ 13,224.00 The CONTRACT PRICE including this CHANGE ORDER will be S 664 573.00
Original Date for Contract Completion 12/13/2019 Current Date for Contract Completion 12/13/2019 Time Extension (in calendar days) . 0 days ‘ Modified Date for Contract Completion - 12/13/2019
Approved by (Owner): City of Evanston Date
Accepted by (Contractor): /0 4/17 Ce ral Rug & Carpet ' at
Page 4 of 4
A10. Page 119 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Michelle Masoncup, Director CC: Victoria Benson, Deputy City Attorney Subject: Resolution 86-R-19, Approving Outside Counsel Litigation Procedures and Billing Guidelines Date: November 11, 2019
Recommended Action: City staff recommends that the City Council adoption of Resolution 86-R-19, to approve Outside Counsel Litigation Procedures and Billing Guidelines.
Council Action: For Action
Summary: Proposed litigation procedures and billing protocol for outside counsel were first presented at the September 23, 2019 City Council meeting. Revisions have been made based on comments received from City Council members which are reflected in the attachment to the Resolution.
The proposed litigation procedures and billing protocol for outside counsel will assist the City with ensuring that it receives high quality service and set expectations for rates to be assessed. These guidelines are not intended to dictate outside counsel’s use of independent professional judgment or duties as an advocate for the City. Prior to signing the engagement letter, the outside counsel will be provided a copy of the guidelines. The guidelines will commence on January 1, 2020 for any outside counsel retained.
The Law Department reviewed outside counsel guidelines from the following entities to develop the proposed guidelines that are presented for your review and approval:
- Hartford Insurance - IRMA (Intergovernmental Risk Management Agency) - City of Chicago - CNA
A11. Page 120 of 574 - Office of the Attorney General for the State of New Jersey - University of California - New York University
Attachments: Resolution 86-R-19 Adopting Outside Counsel Litigation Procedures and Billing Protocol 86-R-19 Adopting Outside Counsel Litigation Procedures and Billing Protocol - Exhibit
Page 2 of 21
A11. Page 121 of 574 9/17/2019
86-R-19
A RESOLUTION
Adopting Outside Counsel Litigation Procedures and Billing Guidelines
WHEREAS, outside counsel are engaged from time to time by the
City of Evanston for purposes of handling specific legal matters and litigation
cases; and
WHEREAS, there exists a need to formalize the litigation
procedures and billing guidelines for outside counsel to set the rates assessed,
expectations with outside counsel, and procedures for review of work; and
WHEREAS, the City Council desires to set forth guidelines and
procedures for retaining outside counsel in order manage litigation cases and
expenses efficiently,
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: The City Council hereby adopts the City of Evanston
Outside Counsel Litigation Procedures and Billing Guidelines, which are attached
as Exhibit 1 and incorporated herein by reference.
SECTION 2: That this Resolution 86-R-19 shall be in full force and
effect from and after its passage and approval in the manner provided by law.
Page 3 of 21
A11. Page 122 of 574 86-R-19
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel Adopted: ______, 2019
~2~ Page 4 of 21
A11. Page 123 of 574 86-R-19
EXHIBIT 1
LITIGATION PROCEDURES BILLING GUIDELINES
~3~ Page 5 of 21
A11. Page 124 of 574
OUTSIDE COUNSEL LITIGATION PROCEDURES AND BILLING PROTOCOL
I. INTRODUCTION
Set forth herein are guidelines that apply to all outside counsel retained by the City of Evanston (“City”) through the Law Department. These guidelines are intended to ensure that Outside Counsel afford the City the high-quality service to which the City is entitled and account for their work in a professional and transparent manner, while at all times remaining mindful of the necessity of conserving public resources. Nothing in these guidelines is intended to restrict Outside Counsel’s exercise of independent professional judgment or duties as an advocate in rendering legal services to the City or to otherwise interfere with any ethical directive governing the conduct of counsel.
These guidelines are effective for all work performed beginning in January 1, 2020, superseding any previously issued guidelines, and, unless exceptions are approved in writing, constitute the guidelines under which Outside Counsel is engaged. Should a conflict arise between these guidelines and previous guidelines, these guidelines will prevail.
Outside Counsel will be given a copy of these guidelines at time of retention for review and acceptance, and will be expected to know and strictly adhere to these guidelines and to require that any colleagues, support personnel or third party vendors also participating in assigned matters (e.g., timekeepers, billing staff who create invoices) do so as well. The City reserves the right to amend these guidelines at any time, providing written notification to outside counsel within 30 days of any substantive changes becoming effective.
II. ASSIGNMENT OF MATTERS
A. Selection of Outside Counsel
The Corporation Counsel may engage Outside Counsel on particular matters as a means of assisting and augmenting the City’s legal staff and
Page 6 of 21
A11. Page 125 of 574 thereby facilitating the discharge of the Corporation Counsel’s duty to conduct all the law business of the City. The Corporation Counsel must have written approval from the City Manager prior to engaging Outside Counsel.
If a matter is to be sent to Outside Counsel, the Corporation Counsel determines which Outside Counsel to engage, taking into account certain factors that bear upon the likelihood of advancing the City’s interests and ultimately achieving the desired outcome. These factors include, but are not limited to: whether the prospective Outside Counsel under consideration have previously been engaged by the City and, if so, the quality and cost-effectiveness of Outside Counsel’s prior performance; the expertise of the prospective Outside Counsel; the reputation of the prospective Outside Counsel within the legal community; the relevant experience of the prospective Outside Counsel before any court or other tribunal or body involved; and the prospective Outside Counsel’s knowledge and understanding of the City and the particular client department at issue. Prospective Outside Counsel who might be strong candidates for an engagement under these factors must also accept the City’s fee restrictions, including caps on maximum hourly rates for attorneys and paralegals, and not have any conflicts of interest precluding them from taking on the engagement.
The City requires the undivided loyalty of its Outside Counsel and expects Outside Counsel to avoid actual and potential conflicts of interest. A request that the City waive a conflict should be directed to the Corporation Counsel. Outside Counsel must investigate potential conflicts of interest before beginning work on a matter and must inform the Corporation Counsel of any potential or actual conflicts of interest as soon as Outside Counsel becomes aware of them. The City will not reimburse Outside Counsel for the time or cost of a conflicts check. Unless Outside Counsel specifically raises a conflict of interest, and the Corporation Counsel acknowledges and waives the conflict in writing, where appropriate, Outside Counsel will fully reimburse the City for additional costs subsequently incurred due to such conflict, including, where appropriate, the cost of substitute counsel becoming familiar with the matter.
B. Method of Assignment
Outside Counsel will receive a letter from the Corporation Counsel stating the case assignment, briefly outlining the facts, and the City’s initial impressions. Outside Counsel may begin work pursuant to oral retentions; the retention letter will follow shortly thereafter. Outside Counsel is to respond to the assignment within three (3) business days with a written acknowledgement of the assignment confirming there is no conflict of interest. If Outside Counsel is retained to represent more than one City
Page 2 of 16
Page 7 of 21
A11. Page 126 of 574 employee in a case and an actual or potential conflict of interest arises, Outside Counsel must advise the Corporation Counsel of the conflict as soon as possible so that separate counsel can be retained.
C. Decision-making authority
Outside Counsel will have primary responsibility for handling assigned matters in accordance with these guidelines and shall be responsible for complying with all court or other dates, responding promptly to discovery, correspondence and so forth, and generally responsible for the proper handling of the assigned matter. However, the City, through its Corporation Counsel, remains responsible for making all substantive decisions in those matters. Outside Counsel and the Law Department will work closely to manage the litigation progress of the matter.
Outside Counsel should communicate directly with the Corporation Counsel or his/her designee regarding allny aspects of an assigned matter. The Corporation Counsel will determine how Outside Counsel should proceed. For example, Outside Counsel should consult with the Corporation Counsel or his/her designee regarding the various aspects of assigned cases so that Outside Counsel and the City can jointly determine whether , for example, a particular research project is necessary or a particular deposition makes sense from an economic standpoint.
The City does not authorize Outside Counsel to comment publicly on City matters or to issue any statements or press releases in connection with any matter of engagement for the City, without the express advance consent of the City. Outside Counsel should refer to the Corporation Counsel all media inquiries.
III. REPORTING REQUIREMENTS
A. Upon receipt of a new caseretention, but in no event later than 30 days after receipt of the assignment, Outside Counsel shall submit its initial written case assessment. The initial case assessment should include a summary of the allegations in the complaint, the factual basis for the litigationmatter, Outside Counsel’s review of the complaint with the client or Department contact as applicable, as well as the results of any preliminary investigation into the allegations and research. A tentative “theory of the case” should be established addressing liability defenses, loss causation, preliminary damage estimates, likelihood of third party recovery, and potential verdict range. Any matters of immediate concern or information that may result in the early resolution of the case should be addressed at this time. Outside Counsel should also identify all attorneys and other personnel assigned to the matter.
Page 3 of 16
Page 8 of 21
A11. Page 127 of 574 B. No later than 90 days after receipt of a new caseretention, Outside Counsel shall submit its Initial Litigation Action Plan. The litigation plan should identify the key factual and legal issues needing resolution, the key depositions, discovery, experts, and motions needed to further their resolution, an estimation of the completion date for each activity, as well as an estimated timeline for the disposition of the assigned matter. The litigation plan should also provide a brief bio about the judge (e.g., disposition to grant summary judgment, reversal rate, etc.) as well as the bio for all contemplated experts (whether consulting or testifying). Outside Counsel shall update the Initial Litigation Plan whenever there is substantial change to the original report.
C. Outside Counsel shall provide regular status reports identifying all significant developments as they occur, including emerging facts, shifting claims or strategies, and other changes in an assigned matter. These reports may also include summaries of depositions, witness interviews, dispositive motions and pre-trial activities. Any report should also provide upcoming scheduled or planned events that are expected to occur. The length of time between status reports will not exceed 90 days.
D. Outside Counsel should immediately report any scheduled dates for settlement discussion, mediation, arbitration or trial, any results of hearings, motions or appeals, amendments to pleadings, change in venue or judge, discovery “surprises” and “hot” documents.
E. Written and verbal communication by Outside Counsel should include a continuing evaluation of potential liability, an ongoing assessment of the amount of damages and causation, and an evolving plan for resolving the case in a timely and cost-effective manner.
F. If it is anticipated that the case will proceed to trial, Outside Counsel will provide a Trial Evaluation Report at least 60 days prior to the scheduled trial date. The report should detail the issues and analyze those issues, including any potential benefits or risks to proceeding to trial. The report should also include information about the venue, opposing counsel, judge, jury venire, pretrial motions, jury instructions, and verdict form.
G. Within 10 days of the conclusion of a trial, Outside Counsel will provide a Post-Trial Report analyzing any potential arguments for post-trial motions or appeals. The report should provide a detailed explanation of the trial result as well as any issues for post-trial motion or appeal available to all parties. The report should also include an evaluation of the probability of success, strategic recommendations, applicable deadlines for filing, whether additional or different appellate counsel should be engaged, and anticipated costs.
Page 4 of 16
Page 9 of 21
A11. Page 128 of 574 H. Within 45 days of the conclusion of a lawsuit, Outside Counsel shall submit a closing report and their final bill.
IV. CASE PREPARATION AND TRIAL
A. Outside Counsel will work toward the successful handling of all litigated files with the assistance and consultation of the Law Department. It is the City’s expectation for Outside Counsel to proactively handle all matters. Legal services should be directed towards collecting necessary information about the assigned matter as quickly as possible, then making a realistic evaluation of the matter with an appropriate case handling plan.
B. The need for and number of depositions and other forms of discovery will be discussed with the Corporation Counsel or his/her designee and should be scheduled and completed as soon as possible.
C. Outside Counsel must consult with the Corporation Counsel or his/her designee prior to retaining or incurring expenses for outside experts, consultants, investigators, etc.
D. Outside Counsel shall not travel out of state for depositions or other discovery or any other purpose without the prior written authorization of the Corporation Counsel or his/her designee. Request for authorization for such trips shall be submitted for approval as set forth herein.
E. Outside Counsel shall not stipulate to liability on any case without previous written approval from the Corporation Counsel.
F. Outside Counsel must send to the Corporation Counsel or his/her designee all significant documents that Outside Counsel intends to provide to, or file with, a court or a government agency that may potentially affect the final disposition of a matter (e.g., motion to dismiss, motion for summary judgment, mediation submission), with enough lead- time to allow a meaningful review. In general, Outside Counsel should send such document(s) at least 72 hours before it is to be filed. Outside Counsel should also send to the Corporation Counsel or his/her designee copies of such document(s) after they have been filed.
G. Outside Counsel shall not waive a jury trial without previous written approval from the Corporation Counsel.
H. Outside Counsel may not enter into any settlement negotiations or settlements without prior approval of the Corporation Counsel. Outside Counsel must immediately convey any settlement demands or other such similar overtures. The Corporation Counsel will consult with the appropriate City officials and will authorize settlement, if appropriate.
Page 5 of 16
Page 10 of 21
A11. Page 129 of 574 Outside Counsel may be requested to consult with or otherwise accompany the Corporation Counsel during meetings with appropriate City officials to discuss settlement. Any settlement is contingent on approval by the City Council and this fact should be communicated during any settlement negotiations. Where liability is apparent (including exposure to statutory attorneys’ fees), early settlement frequently is the preferred course. Outside Counsel is responsible for assessing liability exposure as soon as practicable and for recommending timely resolution strategies.
I. No case should go to trial without the final approval of the Corporation Counsel.
J. It is expected that the specific attorney(s) with whom the engagement is established shall try the case unless otherwise approved, in writing, by the Corporation Counsel or his/her designee. Outside Counsel must identify the attorney(s) or other staff who will be present at counsel table during the trial of the assigned matter, including the designation of the lead trial attorney. It is expected that the lead trial attorney will be the attorney who has been primarily responsible for handling the assigned matter. Outside Counsel’s assignment of trial attorneys is subject to Corporation Counsel’s approval. In most cases, the use of a third chair at trial will be at Outside Counsel’s expense; however, in particularly complex litigation, Outside Counsel may use a third chair at the expense of the City upon previous written approval of the Corporation Counsel or his/her designee.
K. Outside Counsel should provide daily trial reports to the Corporation Counsel or his/her designee. Daily trial reports may be made via email or telephone.
L. Outside Counsel shall obtain authorization from the Corporation Counsel before any appeal is taken from a trial court order, verdict or judgment.
V. STAFFING
When it retains outside counsel, the City expects that the specific attorney(s) with whom the engagement is established will be directly and intimately involved in the assigned matter throughout its course. Unless otherwise approved by the Corporation Counsel, no more than three lawyers and one paralegal should be assigned to a City matter. Outside Counsel may not assign additional attorneys or paralegals to any City matter without prior approval from the Corporation Counsel. The City understands that other attorneys may occasionally have to work on a case because of vacations, illnesses, schedule conflicts, job departures, etc. The City will not consider time expenditures for attorneys or paralegals who were not previously approved where their work on a file is greater than 10% of the total Outside
Page 6 of 16
Page 11 of 21
A11. Page 130 of 574 Counsel time on an assigned matter. Invoices containing charges for unknown timekeepers will be rejected. Charges by new timekeepers without prior approval may be disallowed. The time of summer associates and other temporary legal staff shall not be billed without prior approval of the Corporation Counsel.
VI. BILLING
A. Setting of rates:
Case Category: Attorney Associate Paralegal Partner Billable Rate: Billable Rate: Billable Rate: General Litigation $185.00/hr. $165.00/hr. $90.00/hr. (auto accident, premises liability, etc.)
Police Litigation $195.00/hr. $175.00/hr. $95.00/hr.
Employment $200.00/hr. $180.00/hr. $100.00/hr. Litigation
Labor $215.00/hr. $195.00/hr. $120.00/hr.
Workers’ $137.50/hr. $120.00/hr. $60.00/hr. Compensation
Transactional $185.00/hr. $165.00/hr. $90.00/hr.
Requests for adjustments of hourly rates should be directly raised with the Corporation Counsel and will be approved only in writing.
B. Submission of a budget:
No later than 90 days after receipt of a new caseretention, Outside Counsel shall submit its Initial Litigation Budget. The budget should include expected legal costs for the matter up to and including trial, including potential expert or consultant fees and travel costs. The budget must specifically include the work that Outside Counsel will perform and the estimated cost for each task or phase, considering the time, effort and rate of the timekeepers on the matter. If e-discovery and/or document management systems or processes are contemplated, a precise description of the system, process or vendors, together with expected costs, should be identified. Outside Counsel shall update the Initial
Page 7 of 16
Page 12 of 21
A11. Page 131 of 574 Litigation Budget whenever there is substantial change to the original budget. An annual budget is required for each subsequent year an assigned matter is active.
The Corporation Counsel or his/her designee will review and approve all budgets. Invoices on matters without these approved budgets will be rejected. The City places significant reliance on cost estimates and expects Outside Counsel to prepare them with care. Outside Counsel are expected to stay within their budgets absent truly unforeseen or exceptional circumstances. Fees and expenses may not exceed the budgeted amount without prior approval from the Corporation Counsel, and invoices exceeding the approved budget will be rejected. If it appears that Outside Counsel may exceed the budget on a particular matter, Outside Counsel must immediately notify the Corporation Counsel or his/her designee, provide a written explanation for the prospective variance, and obtain the approval of the Corporation Counsel for the enlarged budget. If a staffing change affecting the budget should occur, Outside Counsel should update the budget and notify the Corporation Counsel or his/her designee in writing of the staffing change. Please note that the City will not pay for time spent in preparing budgets or monthly bills.
C. Frequency of Billing:
Outside Counsel must send a separate invoice for each matter to which Outside Counsel is assigned. Invoices should be submitted on a monthly basis. Charges that are 90 days or older at the time of invoice submission are considered untimely and may not be paid. All invoices performed during a fiscal year (1/1-12/31) must be received by January 15th.
Within 45 days of the conclusion of a lawsuit, Outside Counsel shall submit its final invoice. If the final invoice cannot be submitted within 45 days, Outside Counsel must advise the Law Department as soon as practical. It is Outside Counsel’s responsibility to obtain all outstanding invoices from outside vendors, including consultants and experts, before submitting their final invoice. Unless there are exigent circumstances, invoices submitted after the final invoice will not be paid.
D. Time Charges:
i. Outside Counsel shall charge the City for actual time in 1/10th of an hour (0.10) increments.
Outside Counsel can complete many routine tasks (e.g. telephone calls, emails, letters, etc.) in less than 6 minutes. Accordingly, the
Page 8 of 16
Page 13 of 21
A11. Page 132 of 574 only acceptable minimum billing time charge is .10 (1/10th of an hour). For tasks exceeding 6 minutes, Outside Counsel should only bill the City for the actual time spent rendering the service to the nearest .10 of an hour.
ii. The date, description of the services rendered and identity of the person providing such service (with the hourly rate for each such person) must be provided for each time entry. The description of services should clearly state the nature of the task performed sufficient to allow the reviewer to determine why the task was necessary.
Vague, general and generic activity descriptions are not appropriate. Any correspondence, pleading, and other document that is prepared or reviewed must be distinctly identified and described. Outside Counsel must specifically identify the individual or entity to whom correspondence is directed or from whom it is received as well as its purpose. Similarly, outside counsel must specifically identify the individual or entity to whom they have spoken in any telephone conference. Outside Counsel must thoroughly describe any issue(s) requiring legal research time.
Outside Counsel is reminded that invoices may be disclosed pursuant to Illinois’ Freedom of Information Act, 5 ILCS 140/1 et seq. Although the Law Department will endeavor to redact privileged information before releasing invoices to the public, Outside Counsel should avoid the inclusion of privileged matters in invoices to the extent practicable and consistent with the need to fully inform the Corporation Counsel of its activities and to allow the Corporation Counsel to evaluate the reasonableness of billing narratives.
iii. Each invoice must include an itemized description of all disbursements/expenses and the actual or permissible charge for each disbursement/expense. Outside Counsel must include with the invoice copies of any invoices, receipts or statements for disbursements regardless of the amount of the disbursement. Unless otherwise approved by the Corporation Counsel, vendor invoices (e.g., experts, consultants, mediators, photocopy services, court reporters, and others) in an amount up to $5,000.00 should be paid by Outside Counsel and included with the monthly attorney billing.
iv. Each invoice shall reflect the current fees and expenses billed along with the cumulative fees and expenses paid or incurred from the inception of the file.
Page 9 of 16
Page 14 of 21
A11. Page 133 of 574
v. Generally, two or more attorneys or other personnel should not be performing the same task or activity on a case when one attorney or other staff personnel is sufficient. This includes attendance at depositions, hearings, mediations, arbitrations, and meetings. If it appears necessary to have two or more attorneys or other personnel participate in the same task or activity, Outside Counsel must notify the Corporation Counsel or his/her designee, provide a written explanation for the prospective variance, and obtain the approval of the Corporation Counsel or his/her designee. The City reserves the right to require Outside Counsel to absorb all or part of any charges for the involvement of more than one attorney or other staff personnel on any particular task or activity undertaken without prior approval.
Interoffice conferences that deal with substantive issues pertaining to the assigned matter are reimbursable when Outside Counsel provides a thorough description of the purpose of the conference and who was in attendance. Duplicate charges for interoffice conferences between attorneys should not be billed to the City – only time spent by the most senior attorney in attendance should be billed.
vi. Research hours exceeding 20 hours per assigned matter must be approved prior to incurring the time charges. When seeking approval for such charges, Outside Counsel should submit a brief proposal (1) identifying the purpose of the research, (2) who will perform the research, and (3) an estimate of the associated expense. Outside Counsel should be prepared to discuss whether the firm has previously conducted research on these or similar issues. Any conclusions, results, and memoranda of law produced as a result of any research charged shall be provided to the City.
Outside Counsel should not charge the City for routine research. Outside Counsel is expected to be familiar with the basic substantive law at issue in the matter for which the firm has been retained. The City expects that Outside Counsel will use paralegals or junior associates for research matters, and avoid having partners or senior associates devote extensive time to research.
vii. Outside Counsel should assign tasks appropriate to the magnitude of the matter and the efficiency required for a timely, cost effective, quality work product. When a senior lawyer can handle an assignment most efficiently (based on skill and experience), the City expects that attorney to complete the assignment. Work suitable to more junior attorneys should be delegated. Attorneys
Page 10 of 16
Page 15 of 21
A11. Page 134 of 574 should never bill to perform tasks that could be effectively handled by support personnel. If the Corporation Counsel determines, after consultation with Outside Counsel, that staffing on a matter is inappropriate for particular tasks performed, the hourly rate charged may, in the Corporation Counsel’s sole discretion, be reduced to a rate consistent with that of a lower level professional. Similarly, if the Corporation Counsel determines that excessive time was spent on a particular task, the time billed may be reduced at the Corporation Counsel’s sole discretion.
viii. The City will pay for one-half (½) of an attorney’s actual time spent for travel, round trip, whether local or out-of-town.
ix. Outside Counsel shall not charge the City for general diary or status file reviews. Similarly, Outside Counsel shall not charge the City for file review if an event does not precipitate a file review (such as a telephone conference or receipt of correspondence) or does not result in the creation of any tangible work product. The City will not pay for the review of a file by any individual who is merely supervising the work of another law firm employee. The City considers such supervision to be part of the firm’s overhead and already contained in the hourly rate structure. The City will not authorize payment for a billing charge that states “file review” without more detail as to the purpose.
The City will not pay for time spent by newly assigned attorneys or paralegals to familiarize themselves with an assigned matter on which staffing has changed while the matter is in progress. If, however, the change in staff was made at the request of the Corporation Counsel, the City will pay reasonable costs associated with reviewing the files.
x. The City will not pay for “block billed entries,” which is a line item with a single time charge for multiple activities or disbursements. A time charge must accompany each fee activity, and Outside Counsel must itemize each disbursement entry. If numerous tasks are undertaken in one day, each task must be separately identified with a specified time for performing that task, i.e., a telephone call, a meeting, and legal research.
xi. If there is consistent billing of more than 7 hours in a given day or more than 150 hours per month by a single timekeeper on a given matter, that level of billing activity must be justified.
The City expects that Outside Counsel will not:
Page 11 of 16
Page 16 of 21
A11. Page 135 of 574 Overstaff City matters; Shift assigned personnel, except when absolutely necessary; Charge for learning time of newly assigned attorneys when a shift of personnel is warranted; Authorize premature or peripheral legal or factual research; Hold non-substantive internal “conferences” about City matters; Charge for routinely reviewing, abstracting or summarizing documents and depositions, absent specific agreements otherwise; Handle specific tasks through persons who are either over-qualified (e.g. routine document review by a senior attorney) or under- qualified (e.g. taking of a key expert deposition by an associate); Charge more than once for projects used in previous City case for which the Outside Counsel billed the City.
Examples of activities that a paralegal should generally perform are:
Preparing first drafts of basic forms and documents; Ordering searches such as title or legal records searches; Ordering public records; Organizing and re-organizing file materials, including separating and cataloging responses to requests for production of documents; Indexing file materials; Inventorying documents; Preparing subpoenas or notices of depositions, appearances, jury demands, general interrogatories, general requests for production, and other routine litigation documents; Preparing enclosure or transmittal letters; Abstracting depositions; and Summarizing records or document productions.
The City will not pay an hourly or flat rate or fee for work that is secretarial, clerical or administrative in nature, irrespective of the skill or seniority of the person performing the task. Examples of such secretarial, clerical, or administrative work include:
Scheduling meetings and appointments; Making travel arrangements; Maintaining calendars; Reorganizing files; Date-stamping or Bates-stamping documents; Faxing documents; Photocopying documents; Proofreading documents; Scanning or coding documents;
Page 12 of 16
Page 17 of 21
A11. Page 136 of 574 Pick-up or delivery of documents and records; Preparing documents for mailing or shipping; Ordering vendor services and providing instructions to vendors, including court reporters; Processing vendor bills; Collating; Data processing; Office filing; Filing documents with the court or other agency; Organizing files for storage; Updating lists; Copying and binding documents; Preparing invoices and negotiating billing questions; Opening and closing files; Locating addresses, email addresses and phone numbers.
E. Experts and consultants
The selection and retention of appraisers, experts, investigators, consultants and similar type expenses must be coordinated with and approved by the Corporation Counsel or his/her designee. Each of these services must receive prior approval from the Corporation Counsel or his/her designee and also have a written agreement stating: the scope of the engagement, the nature of services, schedule of costs, and payment procedures. Any proposed retention or engagement anticipated to exceed $30,000 shall require approval of the City Council.
The City will pay the actual cost of the acquisition of specific materials by appraisers, experts and consultants if the Corporation Counsel or his/her designee approves such expenses in advance. Such costs should be included in the written agreement above.
F. Expense Charges:
The City will reimburse Outside Counsel for out-of-pocket expenses that have received prior approval by the Corporation Counsel or his/her designee or are otherwise reimbursable as stated herein. These disbursements require appropriate documentation and must be included on the invoice for the matter. Such disbursements could include court reporter costs, transcripts, filing fees, reasonable travel expenses, photocopies and the like.
Unless otherwise covered by a specific written agreement in advance, the City will pay for separately itemized expenses and disbursements only as follows:
Page 13 of 16
Page 18 of 21
A11. Page 137 of 574 Messenger Services: The City will reimburse Outside Counsel for actual charges for deliveries (including overnight express) that are necessary in the interest of speed and reliability. The City does not expect all documents to be hand-delivered or sent by overnight express. All decisions about modes of delivery, from hand delivery to electronic transmission, must be made with due regard for need, economy and good sense.
Court Reporters: The City will reimburse Outside Counsel for actual costs incurred for court reporters and transcripts. Outside Counsel should obtain the lowest possible charge for court reporting fees, including any possible volume discounts. The City will pay for only one copy of a transcript.
Local Travel: For travel more than 25 miles round trip, the City will reimburse Outside Counsel mileage for the use of personal cars at the prevailing IRS rate or the actual cost of taxicabs, buses, or trains necessitated by the City’s business that are not part of the attorneys’ or employees’ commuting costs during regular business hours. The City will reimburse Outside Counsel for actual costs incurred for travel more than 25 miles round trip such as toll charges and parking fees.
Out-of-Town Travel: Outside Counsel must receive prior approval for all out-of-town travel. The City will approve out-of-town travel by more than one attorney in only limited circumstances. Outside Counsel should obtain the lowest possible rates for out-of-town travel. The City will only reimburse Outside Counsel for coach or economy rates. The City will reimburse Outside Counsel for reasonable hotel and meal charges incurred. The City will reimburse for rental cars of intermediate class or less if deemed the most economical method of transportation. The City will not pay for incidentals or other personal expenses incurred in conjunction with such travel (e.g., movies, entertainment, alcohol, dry cleaning).
The City will not pay for the following charges, unless prior approval has been obtained in writing from the Corporation Counsel.
Secretarial, clerical or word processing services (normal, temporary or overtime); Administrative services (including file creation, file organization and maintenance, conflict checks, directing staff, and personnel training); Accounting services; Photocopy expenses at more than $0.12 per page black and white, $1.00 per page color; Facsimile charges; Photocopy costs in excess of $100 for a single job;
Page 14 of 16
Page 19 of 21
A11. Page 138 of 574 Irregular size copies, copy jobs that require binding/indexing, or other custom work in excess of $100 for a single job; Printing or laser printing; Telephone expenses; Cellular, blackberry, mobile phone or data charges; Office supplies; Charges for business meals or refreshments (unless related to out-of- town travel); Meals and transportation charges attributed to overtime work; Local travel expenses incurred for travel under 25 miles round trip; In-house messenger services; Purchase of equipment such as copiers, fax machines, computers, software, postal machines, scanning equipment, CD writers, etc. Rental of equipment such as projectors, etc. for use during trial or litigation must be discussed with the Corporation Counsel to determine necessity for such equipment. Reimbursement for rental of equipment for litigation or trial will only be made with prior approval in writing from the Corporation Counsel or his/her designee; Online research subscription charges; Charges associated with preparing a bill or negotiating disputes over bills; Library books, periodicals, expert treatises, etc.; Case management or litigation software or systems; Database consultants, database creation/maintenance, or technical support; Storage fees; and Secretaries, librarians, law clerks, billing clerks, data processors, or summer associates.
Under no circumstances will the City reimburse the following basic overhead expenses, considered part of Outside Counsel’s doing business:
Rent (including temporary office space), utilities, office supplies; Firm conference room charges; Internet service fees; File storage charges; Professional association fees; Attendance at seminars, CLE programs and conferences; Group outings; Client entertainment; and Interest on outstanding invoices.
The City has the right to examine and audit all of your firm’s billings for any work charges to the City, disbursements and all of the supporting data
Page 15 of 16
Page 20 of 21
A11. Page 139 of 574 for those billings. This includes the right to examine and audit the corresponding legal file.
Page 16 of 16
Page 21 of 21
A11. Page 140 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Hugh DuBose, Assistant City Attorney Subject: Resolution 120-R-19, Referendum for Nonpartisan Elections Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Resolution 120-R-19, which will add a referendum question on whether the City should hold partisan or nonpartisan elections to the ballot of the March 17, 2020 election.
Council Action: For Action
Summary: The City needs to hold a referendum for the Citizens to decide whether to hold partisan or nonpartisan elections. While the the City has held nonpartisan elections in the past, the Illinois Election Code and Constitution require a referendum for a municipality to switch from a partisan to a nonpartisan election. Following a thorough search of public records and media records conducted by the City Clerk’s Office, Evanston Public Library, and the Law Department, City Staff cannot locate a referendum that implemented nonpartisan elections in the City of Evanston. Further, the Illinois Election Commission’s records show Evanston has not held a referendum to hold nonpartisan election. The Illinois Election Commission General Counsel Office further confirmed (a) that a referendum is necessary to switch to a non- partisan system; and (b) grandfathering in under current election practices is not authorized by state law. If approved, Resolution 120-O-19 would add a referendum question to the ballot of the March 17, 2020 election for the citizens of Evanston to decide whether the City should hold partisan or nonpartisan election. Under the Illinois Election Code, municipalities, generally, hold partisan elections. Article 7 of the Illinois Election Code, entitled “the Making of Nominations by Political Parties,” Section 1(a) states:
Except as otherwise provided in this Article, the nomination of all candidates for all elective State, congressional, judicial, and county officers, State's Attorneys (whether elected from a single county or from more than one county), city, village, and incorporated town and municipal officers, trustees of sanitary districts, township
A12. Page 141 of 574 officers in townships of over 5,000 population coextensive with or included wholly within cities or villages not under the commission form of government, precinct, township, ward, and State central committeepersons, and delegates and alternate delegates to national nominating conventions by all political parties, as defined in Section 7-2 of this Article 7, shall be made in the manner provided in this Article 7 and not otherwise. 10 ILCS 5/7-1 (Emphasis Added)
The “manner provided” for in Article 7 is nomination of candidates by political parties; therefore, under the Illinois Election Code, the default mechanism to elect candidates in the City of Evanston (the “City”) is for political parties to nominate candidates for each election.
Exceptions for Illinois Home Rule Municipalities
Illinois Home Rule Municipalities have the discretion to change the manner in which municipalities elect their officers. Article VII, section 6(f), of the Illinois Constitution of 1970 provides:
“(f) A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.”
In Boytor v. City of Aurora, 81 Ill. 2d 308, 410 N.E.2d 1 (1980), the Illinois Supreme Court addressed the issue and held that a municipality may choose by referendum to conduct its elections on a nonpartisan basis.” Boyer at 313-314.
Submitting a Public Question to a Referendum
The Illinois Election Code requires the City to put a public question to a referendum to allow its citizens to vote on whether to change from partisan elections to nonpartisan elections. Section 28-7 states, “[i]n any case in which Article VII…authorizes any action to be taken by or with respect to any unit of local government…by or subject to approval by referendum, any such public question shall be initiated in accordance with this Section.” 10 ILCS 5/28-7. The City is a municipality, which qualifies as a unit of local government, and switching from partisan to nonpartisan elections is authorized by Article VII of the Illinois Constitution; thus, the City must hold a referendum submitting a public question to the electorate to change from a partisan to nonpartisan election.
The City has two options to initiate a public question. First, City Council can initiate the public question by passing a resolution. Second, the public can submit a petition to add a public question. A petition must be “signed by a number of qualified electors equal to or greater than at least 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election.” 10ILCS 5/28-7. If City Council initiates the referendum by
Page 2 of 5
A12. Page 142 of 574 resolution, it must “be adopted not less than 79 days before a regularly scheduled election to be eligible for submission on the ballot at such election.” 10 ILCS 5/28-2. Petitions and resolutions also should not schedule referendums more than one (1) year from the date of passage or certification.
the resolution is silent on which election the public question is to be presented, then “the public question shall be submitted to referendum at the next regular election occurring not less than 92 days after the filing of the petition.” 10 ILCS 5/28-2(e). The next “regular election” in Illinois is the Presidential Primary on March 17, 2020. The Illinois Election Code defines a “regular election” as “the general, general primary, consolidated and consolidated primary elections regularly scheduled in Article 2A…” 10 ILCS 5/1-3(2). The Illinois Schedule of Consolidated Elections (in Article 2A) states, “In even-numbered years, the general election shall be held on the first Tuesday after the first Monday of November; and an election to be known as the general primary election shall be held on the third Tuesday in March.” 10 ILCS 5/2A-1.1(a). Finally, the Illinois Election code confirms that a municipality may hold a referendum as part of a Presidential primary stating, “At any election established in Section 2A-1.1, public questions may be submitted to voters pursuant to this Code and any special election otherwise required or authorized by law or by court order may be conducted pursuant to this Code.” 10 ILCS 5/2A-1.2(f). Therefore, the Presidential Primary on March 17, 2020 is the next “regular election” at which the City of Evanston can hold a referendum.
The Law Department has confirmed with the Cook County Board of Election that the last day for City Council to vote on the resolution triggering a referendum for a March 17, 2020, primary election is December 30, 2019. Additionally, the City must certify the referendum by January 9, 2019, in order for the referendum to appear on the ballot.
Attachments: Resolution 120-R-19 Nonpartisan Election Referendum
Page 3 of 5
A12. Page 143 of 574 10/29/2019 120-R-19
A RESOLUTION
Instructing the City Clerk to Submit, for the March 17, 2020 Ballot, a Referendum to Hold Non-Partisan Elections in Evanston
WHEREAS, Under Article 7 of the Illinois Election Code, municipalities
generally hold partisan elections; and
WHEREAS, the City of Evanston is a home rule municipality under Article
VII of the 1970 Illinois Constitution; and
WHEREAS, The City of Evanston has the authority under its home rule
powers to implement nonpartisan elections if a nonpartisan public question is approved
in a referendum; and
WHEREAS, the City has conducted a majority of its prior elections as
nonpartisan elections; and
WHEREAS, City residents have not yet approved a referendum
implementing nonpartisan elections in the City as required by Article VII, section 6(f), of
the Illinois Constitution of 1970; and
WHEREAS, the residents of the City must approve a referendum
establishing nonpartisan elections for the City to continue holding nonpartisan elections;
and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS:
Page 4 of 5
A12. Page 144 of 574 120-R-19
SECTION 1: The foregoing recitals are found as fact and incorporated
herein by reference.
SECTION 2: The City Clerk is hereby instructed to submit a referendum
to the proper election authorities for the March 17, 2020 ballot, for all legal voters
residing in the City of Evanston, to vote upon the following question:
Shall the City’s offices of mayor, city alderman, and city clerk be elected in nonpartisan elections and, if necessary, non-partisan primaries commencing with the election to be held in 2020 and thereafter?
SECTION 3: Said referendum shall be a binding referendum pursuant to
Article VII of the Illinois Constitution of 1970 and the Illinois Election Code.
SECTION 4: Said referendum shall be conducted, in all respects, in
accordance with the provisions of the Illinois Election Code pertaining to the conduct of
the March 17, 2020 election, and with the Ordinance providing for the pertinent
publications, ballots, polling places, and election judges relating to such election.
SECTION 5: This Resolution shall be in full force and effect from and
after its passage and approval in the manner provided by law.
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Adopted: ______, 2019
- 2 -
Page 5 of 5
A12. Page 145 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Jessica Hyink, Transportation & Mobility Coordinator CC: Johanna Leonard, Community Development Director Subject: Resolution 121-R-19, Authorizing the City Manager to Execute an Agreement with Motivate International, Inc. for the Divvy Bicycle Program Date: November 11, 2019
Recommended Action: Staff recommends the City Council adoption of Resolution 121-R-19, Authorizing the City Manager to execute an agreement with Motivate International, Inc., for a period of 5 years to expand the Evanston Divvy Bikeshare Program ("Divvy Program") and to remove the financial cost to the City.
Funding Source: Staff anticipates the budgeted amount for Divvy expenses will be cost neutral for the length of the contract.
Council Action: For Action
Summary: On September 17, 2018, City Council approved the authorization of the City Manager to negotiate a three (3) year contract extension with the operator of the Divvy Program. Since that time, Divvy was acquired by Lyft and staff has completed further negotiations and established an Amended and Restated Agreement ("Agreement"). Negotiated items of the Agreement include:
1. Reduction of 2019 costs to meet the City's goal of a cost neutral Divvy Program in 2019; 2. Elimination of Divvy Program expenses in the new Agreement; 3. Revenue share in an amount equal to 5% of the excess of user revenues over $250,000 each calendar year;
A13. Page 146 of 574 4. Ninety (90) electric assist bicycles with "lock-to" functionality (capable of being locked to a Divvy station or bicycle parking infrastructure); 5. Bicycle upgrades to existing Divvy Program bicycles as needed; 6. Software upgrades to modernize the Divvy user experience; and 7. Integration of the Program with the Ventra card to allow users to initiate a rental with a transit card.
The negotiated items will result in a significant investment by Motivate into the Evanston Program, therefore Motivate is asking for a five (5) year Agreement, with a five year extension option, to ensure these costs can be recovered. Moreover, a five year Agreement will provide additional time for Motivate to expand Evanston-based ridership and for the City to expand the Divvy for Every Evanstonian subsidy program.
The benefits of the Program include first and last mile connections to transit, reduction of greenhouse gas emissions, and a more equitable access to a community asset, as the lock- to electric assist bicycles will be able to reach all of Evanston.
Background: The Divvy Program launched in late June of 2016. The Program was made possible through a grant from the Illinois Department of Transportation provided in 2015. The City matched this grant with $80,000 in 2015 as part of a larger growth of the Divvy bike network in Chicago and Oak Park. Sponsorships and station advertisement from Northwestern University, NorthShore University HealthSystem, Valli Produce, and Presence Saint Francis have helped in the initial set-up of the stations.
Evanston currently has 14 Divvy stations distributed throughout Evanston. The locations are designed to serve as part of the larger network of Divvy and are located near large employers and points of interest (Evanston Township High School and Northwestern University) and CTA and Metra stations.
Equity: On August 23, 2018, the City launched the Divvy for Every Evanstonian program to provide $5.00 Divvy memberships to income qualifying residents. Evanston residents ages 16 and older with an annual household income at or below 185 percent of the Federal Poverty Guidelines or who receive SNAP, WIC, LIHEAP or public housing benefits now qualify for the discounted annual memberships. All annual memberships include unlimited rides of 45 minutes or less anywhere within Divvy's network. The Divvy network includes stations at grocery stores and other shopping destinations, train stations, business districts, Evanston Township High School, and Northwestern University. Having lock-to electric assisted bicycles within the Program would expand the reach of the Divvy for Every Evanstonian program.
Legislative History: Resolution 87-R-14 Accepting Participation in the Divvy Bike Share Expansion and Authorizing the City Manager to Negotiate an Intergovernmental Agreement with City of Chicago to Implement the Program Staff recommends City Council adoption of a cost match in the amount of $80,000 to match funding provided by the State of Illinois Department of Transportation is budgeted for FY 2015 in the Parking Fund Account BU: 505.19.7005.62603.
Page 2 of 27
A13. Page 147 of 574
Resolution 5-R-16 – aExecute and to Manager n Negotiate the Authorizing City Intergovernmental Agreement with the City of Chicago for the operation of Divvy Bike Stations in Evanston.
Resolution 14-R-16 – Authorizing the City Manager to Execute an Operator Agreement with Motivate International, Inc. for the operation of the Divvy Bike Share System in the City of Evanston.
On September 17, 2018, the City Council approved as Business of the City by Motion to authorize the City Manager to enter into a three (3) year contract extension with the program operator of Divvy Bikes and to purchase three (3) Divvy stations.
Attachments: Resolution 121-R-19 MTV Evanston Amended and Restated Program Agreement
Page 3 of 27
A13. Page 148 of 574 10/30/2019
121-R-19
A RESOLUTION
Authorizing the City Manager to Execute an Amended and Restated Program Agreement with Motivate International, Inc.
NOW BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: The City Manager is hereby authorized and directed to sign
the Amended and Restated Program Agreement (the “Agreement”) by and between the
City and Motivate International, Inc. (“Motivate”) for a term that expires on January 24,
2023, and also includes a five (5) year option for Motivate to extend the contract. The
Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.
SECTION 2: The City Manager is hereby authorized and directed to
negotiate any additional conditions or terms of the Agreement with Motivate as may be
determined to be in the best interest of the City.
SECTION 3: This resolution shall be in full force and effect from and after
its passage and approval, in the manner provided by law.
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Adopted: ______, 2019
Page 4 of 27
A13. Page 149 of 574 121-R-19
EXHIBIT 1
Proposed AGREEMENT with
- 2 -
Page 5 of 27
A13. Page 150 of 574 AMENDED AND RESTATED AGREEMENT
FOR
EVANSTON BIKE SHARE PROGRAM
This AMENDED AND RESTATED AGREEMENT (this “Agreement”) is entered into by and between Motivate International Inc., a Delaware corporation, having an office at 185 Berry Street, Suite 5000, San Francisco, CA 94107 (“Motivate”) and the City of Evanston, a municipal corporation and home rule unit of local government existing under the Constitution of the State of Illinois, acting through its City Manager’s Office at Evanston, Illinois (“City”). Motivate and City are referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the City and Motivate entered into that Operator Agreement dated as of March 2016 (“Original Program Agreement”) whereby Motivate undertook to operate a bicycle share program in the municipal boundaries of Evanston (the “Program”); and
WHEREAS, Motivate has successfully operated the Program since its launch; and
WHEREAS, the Parties desire to extend the term of the Original Program Agreement and amend it in certain respects and by this Agreement the Parties amend, restate, supersede and replace the Original Program Agreement in its entirety;
WHEREAS, the City desires a bike share system that is interoperable, at all times, with the Chicago Program (as defined below);
WHEREAS, the City has passed all resolutions necessary to authorize it to enter into this agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:
1. DEFINITIONS
Defined Terms. As used herein, the terms below have the following meanings. Any of such terms, unless the context otherwise requires, may be used in the singular or plural, depending upon the reference.
“Bikeshare System” means a program offering a fleet of ten (10) or more bicycles (including non-electric bicycles, electric bicycles, or both) to users on a self-service basis which involves use of property under jurisdiction or ownership of the City.
“Chicago Program” means the portion of the Divvy bicycle share program operated in the City of Chicago that is interoperable with the Program.
Page 6 of 27
A13. Page 151 of 574 “City” has the meaning set forth in the Recitals.
“Confidential Information” has the meaning set forth in Section 13.1.
“Disclosing Party” has the meaning set forth in Section 13.1.
“Effective Date” has the meaning set forth in Section 2.2.
“Event of Force Majeure” means a delay, suspension or interruption due to strike or other labor unrest; war or act of war (whether an actual declaration of war is made or not); terrorism; insurrection; riot; injunction; acts of legislative, executive, or administrative authorities; fire, flood, earthquake, severe inclement weather or similar act of providence; power failures, electrical power surges or current fluctuations; or other similar causes or events to the extent that such causes or events are beyond the control of Motivate.
“Existing Equipment” means the deployed capital equipment of the Program as of the Effective Date, including bicycles and Stations.
“Indemnified Party” or “Indemnified Parties” has the meaning set forth in Section 12.1.
“Indemnifying Party” has the meaning set forth in Section 12.1.
“Indemnity Claim” has the meaning set forth in Section 12.1
“License” has the meaning set forth in Section 3.1.
“PBSC Equipment” has the meaning set forth in Section 4.1.
“Program” has the meaning set forth in the Recitals.
“Program Revenues” has the meaning set forth in Section 5.1.
“Receiving Party” has the meaning set forth in Section 13.1.
“Station” means a designated area in which users of the Program may end a ride, and which may include equipment to which bicycles are able to be locked.
“Term” has the meaning set forth in Section 2.2.
2. SERVICES; TERM, DELIVERABLES
2.1. Services. Motivate hereby agrees to provide the services related to operating the Program in the City of Evanston as set forth in Attachment A during the Term (the “Services”), subject to the terms and conditions of this Agreement. Motivate shall be responsible for all costs of performing the Services.
2.2. Term. The term will begin on the execution of this Program Agreement (the “Effective Date”) and shall run until January 24, 2023 (the “Initial Term”). Motivate may, at its
Page 7 of 27
A13. Page 152 of 574 sole option by written notice to the City, elect to extend the Agreement for a period of five (5) years if Motivate’s agreement with the City of Chicago to operate the Chicago Program is renewed or extended (such period together with the Initial Term, the “Term”).
2.3. Deliverables. In carrying out the Services, the Operator must prepare or provide to the City various deliverables as further described in Attachment A. The City may reject Deliverables that do not conform to the specifications in this Agreement or reasonably necessary for the purpose for which the City made this Agreement. If Motivate fails to comply with the foregoing standards, the City has thirty (30) days from its discovery of the failure to notify Motivate thereof. If Motivate does not correct the failure, if it is possible to do so, within thirty (30) days after receipt of notice from the City specifying the failure, then the City, by written notice, may treat the failure as material breach.
3. EXCLUSIVITY
3.1 Exclusivity. The City shall enforce all micromobility licensing and permitting restrictions to the full extent permitted by law. The City shall notify Motivate of any changes to its City Code related to the permitting and licensing requirements for micromobility providers forty-five (45) days prior to the effective date of the change. In the event of any such change, or if the City fails to enforce any licensing or permitting restriction in its City Code, then Motivate may terminate this Agreement upon thirty (30) days’ written notice to the City.
3.2 Other Shared Micromobility. If, during the Term, the City desires to license, authorize, or permit an entity other than Motivate or its affiliates to operate a shared micromobility program offering a fleet of ten (10) or more scooters or other micromobility vehicles (including non-electric vehicles, electric vehicles, or both), other than bicycles, to users on a self-service basis which involves use of property under jurisdiction or ownership of the City, then the City shall offer Motivate the right to obtain the first license or permit for such micromobility option. If the City fails to provide Motivate an offer of first refusal, or if Motivate accepts such offer and the City nevertheless licenses, authorizes or permits another micromobility operator to operate a shared micromobility program, then Motivate may terminate this Agreement upon thirty (30) days’ written notice to the City.
4. PROGRAM UPGRADES; OWNERSHIP
4.1. Software Upgrade. Motivate will, at its cost, convert the Program’s existing backend software and from the PBSC platform to Motivate’s backend software, and Motivate will replace any components of the Existing Equipment necessary to effect such conversion, including Station kiosks and dock cassette boards (collectively, the “PBSC Equipment”) during the 2019 riding season. City will transfer the PBSC Equipment to Motivate upon Motivate’s performance of the backend software conversion. Motivate will reasonably cooperate with the City in connection with the City’s transfer of the PBSC Equipment.
4.2. Bicycle Upgrades. During the Term, Motivate may in its reasonable discretion upgrade or replace any bicycle in the Program with a bicycle of equal or greater functionality and condition and dispose of replaced bicycles at its sole cost and in its reasonable discretion.
Page 8 of 27
A13. Page 153 of 574 4.3. E-Bikes. Motivate intends to deploy bicycles with electric assist and “lock-to” (i.e., capable of being locked outside of a Station to traditional bicycle racks or other infrastructure) functionalities in the Chicago Program. Motivate will deploy at least ninety (90) such bikes within the City of Evanston, and Motivate will make commercially reasonable efforts to deploy such bicycles by the end of April 2020. City acknowledges and agrees that because the Program is interoperable with the Chicago Program, subscribers may operate such bicycles within the boundaries of the City and in conjunction with the Program equipment, including the Existing Equipment.
4.4. Ownership. City will retain ownership of Existing Equipment. Motivate will retain ownership of any new bicycles deployed in the Program.
5. PROGRAM REVENUES
5.1. Operating Costs Under Original Program Agreement. Motivate hereby reduces any outstanding invoices from January 1, 2019 to the Effective Date payable by the City to Motivate for operating costs under the Original Program Agreement, to an amount equal to the sum of any amounts received or receivable by City pursuant to City’s sale of sponsorship or advertising on capital equipment and other Program assets during the period from January 1, 2019 to the Effective Date.
5.2. Program Revenues. Subject to Section 5.3, Motivate will collect and retain all revenues generated by the Program, including user revenue and sponsorship revenue (collectively, “Program Revenues”).
5.3. Revenue Share. Within 120 days following the end of each calendar year during the Term, Motivate will pay to the City an amount equal to 5% of the excess of user revenues for such calendar year over $250,000.
5.4. Sponsorship. City hereby grants to Motivate the exclusive rights throughout the Term to (i) sell and place sponsorship and advertising on all capital equipment and other Program assets, and (ii) collect all revenues generated by such sponsorship and advertising activities. On or before the Effective Date, City will assign to Motivate all amounts receivable to City under the NorthShore Hospital Ad Panel Agreement dated [______] between City and NorthShore Hospital after the Effective Date.
6. SUBSCRIPTIONS AND PRICING
6.1. Pricing. Motivate will offer, to members of the public, subscriptions to the Program in forms and at pricing to such subscribers consistent with those offered in the Chicago Program. Motivate shall notify the City of any price changes no fewer than fifteen (15) days prior to the effective date of the change.
Page 9 of 27
A13. Page 154 of 574 7. INTELLECTUAL PROPERTY
7.1. Copyright. The copyright to any work developed under this Agreement by Motivate will be the exclusive property of Motivate. Motivate does not convey to City, nor does City obtain, any copyright to any works owned by Motivate.
7.2. Patent. If during the Term Motivate creates for use in the Program any patentable items, processes or inventions (other than any intellectual property of Motivate existing as of the Effective Date), then Motivate shall own such patentable item, process or invention as its Intellectual Property. Motivate does not convey to City, nor does City obtain, any right to any patentable items, processes or inventions utilized or owned by Motivate.
7.3. Use of Data. All data generated by the Program will be owned by Motivate. Motivate will grant City a non-exclusive, royalty-free, irrevocable, perpetual license to use, for non-commercial purposes and on a real-time basis (including to publish on the City’s website), all data generated by the Program, other than (a) personally-identifiable information that can identify individual users, their addresses, their credit card information or other personal information about users, and (b) trade secret or proprietary data or information including Motivate’s Confidential Information.
7.4. Publication. Motivate will publish aggregate Program ridership data on a monthly basis. Non-personally identifiable Program data will be made accessible online in General Bikeshare Feed Specification (GBFS) in JSON and XML format.
8. REPRESENTATIONS AND WARRANTIES
8.1. Motivate. Motivate hereby represents and warrants that:
8.1.1. Motivate has full power and authority to enter into and perform this Agreement in accordance with its terms and does not require the consent of any third party that has not been secured, and all requisite action has been taken by Motivate in connection with entering into this Agreement and that no further consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority or other party is required;
8.1.2. this Agreement is a valid, legally binding obligation of and enforceable against Motivate in accordance with its terms and execution of this Agreement by Motivate will not cause a breach of any other agreement to which Motivate is a party;
8.1.3. Motivate will perform the Services in a good and workmanlike manner, in conformance with this Agreement, and in accordance with customary professional and/or industry standards;
8.1.4. Motivate warrants that each of Motivate’s employees assigned to perform the Services have the proper skill, training, and background to be able to perform the Services in a competent, timely, and professional manner and that all Services will be so performed;
8.2. City. City hereby represents and warrants that:
Page 10 of 27
A13. Page 155 of 574 8.2.1. City has full power and authority to enter into and perform this Agreement in accordance with its terms and does not require the consent of any third party that has not been secured, and all requisite action has been taken by City in connection with entering into this Agreement and that no further consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental authority or other party is required;
8.2.2. this Agreement is a valid, legally binding obligation of and enforceable against City in accordance with its terms and execution of this Agreement by City will not cause a breach of any other agreement to which City is a party;
8.2.3. City will perform its obligations hereunder in a good and workmanlike manner, in conformance with this Agreement, and in accordance with customary professional and/or industry standards; and
8.2.4. City maintains insurance with coverage types and amounts reasonably necessary to satisfy its obligations and liabilities in connection with this Agreement and the Program.
9. TERMINATION
9.1. Failure or Breach. If either Party materially breaches this Agreement, then the non-breaching Party will give the breaching Party written notice of such breach and 90 days to cure such breach. If the breaching Party fails to cure such breach by the expiration of such 90- day period, then the non-breaching Party will have the right to give the breaching Party a written notice of termination, including the date when the termination will be effective, which date shall be at least 30 days after the date of such notice.
9.2. Chicago Program. The following shall constitute material breaches of this Agreement: (a) the Program’s being incompatible with the Chicago Program for more than thirty (30) days, or (b) Motivate’s ceasing to hold an agreement with the City of Chicago to operate the Chicago Program.
9.3. Contest. If the breaching Party in good faith contests any such breach, then such termination will be suspended pending the outcome of such contest in accordance with the Dispute Resolution Process.
9.4. Sole Remedies. Notwithstanding anything to the contrary herein, the sole remedy of City against Motivate for breach of this Agreement, excluding a breach of Article XII, or for failure to provide the Services satisfactorily, is to terminate this Agreement in accordance with Article IX. In no event will Motivate be liable for damages of any kind for breach of this Agreement, other than a breach of Article XII, or for failure to provide the Services satisfactorily.
10. DISPUTE RESOLUTION
10.1. In the event of a dispute between the Parties, such dispute will be addressed and resolved in accordance with the following (the “Dispute Resolution Process”): Except for a claim relating to intellectual property or breach of confidentiality provisions, the parties, through
Page 11 of 27
A13. Page 156 of 574 their respective project managers, will attempt to settle any dispute arising from this Agreement through consultation and good faith negotiation. If the project managers are unable to resolve the issue, the parties will declare a 30-day resolution period in which the issue will be escalated to the City Manager, or his designee, and to the President of Motivate, or his designee. The parties agree to timely respond to reasonable requests for information required to establish facts related to the dispute that they are not prohibited by law or policy to produce. At the end of the 30-day period, the a party shall give notice to the other party of disputes or claims the noticing believes cannot be resolved before the noticing party files any claim with a court of proper jurisdiction.
11. INSURANCE
11.1. Motivate must provide and maintain at Motivate’s own expense, during the term of this Agreement and any time period following expiration if Motivate is required to return and perform any of the Services or additional Services under this Agreement, the insurance coverages and requirements specified in Exhibit C of this Agreement, insuring all operations related to this Agreement.
12. INDEMNIFICATION AND LIMITATION OF LIABILITY
12.1. Precautions. Motivate and the City shall take all reasonable precautions to protect all persons and the property of the City and others from damage, loss or injury caused by operations of Motivate or its subcontractors under this Agreement.
12.2. Indemnification. Motivate shall defend, indemnify and hold City and its commissioners, officers and employees (each, an “Indemnified Party,” and collectively, “Indemnified Parties”) harmless, to the fullest extent permitted by law, from any and all claims of, or judgments for, a third-party for (i) damages on account of any injuries or death to such third-party or damage to any property of such third-party, or (ii) economic, pecuniary or financial losses of such third-party, together with costs and expenses to which such Indemnified Party may be subjected on account of such claims or judgments, to the extent arising out of the negligence or intentional misconduct by Motivate or its subcontractors or a violation of law by Motivate or its subcontractors (collectively, “Operator Actions”); provided, however, that Motivate shall not be responsible for any negligence of Indemnified Parties or their respective agents or contractors or for any damages caused by Indemnified Parties or their respective agents or contractors (together with matters covered by the following sentence, “Indemnified Party Actions”). In addition, and notwithstanding anything to the contrary in the foregoing, Motivate’s obligations under this paragraph shall not apply to liability to the extent arising from Motivate’s complying with the directives or requirements of the City. Insofar as the facts or law relating to any claim would preclude an Indemnified Party from being completely indemnified by Motivate, such Indemnified Party shall be partially indemnified by Motivate.
12.3. Intellectual Property Indemnification. Motivate shall defend, indemnify and hold the Indemnified Parties harmless from any and all claims (even if the allegations of the lawsuit are without merit) or judgments for damages and from costs and expenses to which the Indemnified Parties may be subject to or which the Indemnified Parties may suffer or incur allegedly arising out of or in connection with any infringement by Motivate of any copyright, trade secrets, trademark or patent rights or any other similar intellectual property right of any
Page 12 of 27
A13. Page 157 of 574 third party by Motivate or its subcontractors in the performance of this Agreement. Motivate shall defend, indemnify, and hold the Indemnified Parties harmless regardless of whether or not the alleged infringement arises out of compliance with the Agreement’s scope of services/scope of work. Insofar as the facts or law relating to any claim would preclude an Indemnified Party from being completely indemnified by Motivate, such Indemnified Party shall be partially indemnified by Motivate.
12.4. Indemnification Procedure. Upon receipt by an Indemnified Party of actual notice of a proceeding against such Indemnified Party in respect of a matter for which such Indemnified Party is entitled to indemnification under this Article 12 (a “Proceeding”), such Indemnified Party shall notify Motivate with respect thereto. In addition, an Indemnified Party shall notify Motivate after any Proceeding is commenced (by way of service with a summons or other legal process giving information as to the nature and basis of the claim) against such Indemnified Party. Failure to promptly notify Motivate shall relieve Motivate from any liability that Motivate may have on account of this indemnity to the extent Motivate has been prejudiced by such failure. Motivate shall assume the defense of a Proceeding, including the employment of counsel reasonably satisfactory to such Indemnified Party and the payment of the fees and expenses of such counsel, in which event, except as provided below, Motivate shall not be liable for the fees and expenses of any other counsel retained by such Indemnified Party in connection with such Proceeding. In any such Proceeding in which Motivate assumes the defense, such Indemnified Party shall have the right to participate in such Proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) Motivate and such Indemnified Party have mutually agreed in writing to the retention of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include Motivate and such Indemnified Party and representation of both parties by the same counsel would, in the reasonable opinion of counsel to Motivate, be inappropriate due to actual or potential differing interests between Motivate and such Indemnified Party, in which case the reasonable fees and expenses of counsel for an Indemnified Party shall be borne by Motivate, provided that such Indemnified Party’s selection of counsel has been approved by Motivate, which approval shall not be unreasonably withheld or delayed. Motivate will not settle any Proceeding to which such Indemnified Party is a party without the consent of such Indemnified Party unless such settlement includes an unconditional release of such Indemnified Party from all claims made against such Indemnified Party in connection with such Proceeding without any admission of liability or wrongdoing. Notwithstanding anything to the contrary in this Article 12, if any judgment or settlement establishes that the personal injury, property damage or financial loss underlying any Proceeding arose from Indemnified Party Actions, then such Indemnified Party shall reimburse Motivate for the legal fees and costs incurred by Motivate in defending such Indemnified Party, or if such personal injury, property damage or financial loss arose from both Operator Actions and Indemnified Party Actions, then such Indemnified Party shall reimburse Motivate for such Indemnified Party’s share of Motivate’s legal fees and costs based such Indemnified Party’s share of the liability for such personal injury, property damage or financial loss.
12.5. No Right of Action. The provisions of this Agreement shall not be deemed to create any right of action in favor of third parties
Page 13 of 27
A13. Page 158 of 574 12.6. Limitation of Liability. To the maximum extent permitted by any applicable law, in no event will any Party be liable to the other Party in any manner whatsoever for any indirect, incidental, special, consequential, exemplary, punitive or aggravated damages, losses or liabilities (including, without limitation, any loss of profit or loss of goodwill) howsoever caused arising out of the obligations hereunder or otherwise relating to or in connection with this Agreement, whether in contract, tort (including negligence) or any other statutory or common law basis, notwithstanding that such Party has, or its directors, officers, employees, subcontractors, suppliers or agents have, been advised of the possibility of such damages, losses or liabilities.
13. MISCELLANEOUS
13.1. Confidentiality. Subject to the terms and conditions herein and all laws, each Party (a “Receiving Party”) agrees that it shall not, directly or indirectly, use, make available, sell, disclose, disseminate, or otherwise communicate to any person, in whole or in part, other than in the course of such Party’s performance of its obligations hereunder, either during the Term or any time thereafter, any Confidential Information. The foregoing shall not apply to any information that: (i) was known to the public prior to its disclosure by the Receiving Party; or (ii) the Receiving Party is required to disclose by law, regulation or legal process. As used herein, “Confidential Information” means with respect to each Party, the finances, agreements, business operations, trade secrets, plans, proceedings, market strategies, media and promotional activities or other non-public information of the Party disclosing such information (the “Disclosing Party”), whether disclosed orally, in writing, or through another medium, by the Disclosing Party’s officers, employees, agents or other persons.
13.2. Governing Law. This Agreement will be governed exclusively by the internal laws of the United States and of the State of Illinois applicable to contracts made, accepted and performed wholly within said State, without regard to application of principles of conflict of laws.
13.3. Survival. All provisions of this Agreement that by their terms survive the expiration or any termination of this Agreement, together with all other provisions of this Agreement that may be reasonably construed as surviving the expiration or any termination of this Agreement, will survive the expiration or any termination of this Agreement.
13.4. Notices. Except as otherwise provided herein, all notices, requests, demands and other communications which are required or may be given under this Agreement will be provided in the manner set forth in this section. Notice to a Party will be delivered to the attention of the person listed below, or to such other person or persons as may hereafter be designated by that Party in writing. Notice will be in writing sent by e-mail or regular first class mail. In the case of e-mail communications, valid notice will be deemed to have been delivered upon sending, provided the sender obtained an electronic confirmation of delivery. E-mail communications will be deemed to have been received on the date of such transmission, provided such date was a business day and delivered prior to 4:00 p.m. CT. Otherwise, receipt of e-mail communications will be deemed to have occurred on the following business day. In the case of regular mail notice, notice will be deemed to have been delivered on the mailing date and received five business days after the date of mailing.
Page 14 of 27
A13. Page 159 of 574 If to City: City of Evanston 2100 Ridge Avenue Evanston, IL 60201 Attn: City Manager
If to Motivate: Motivate International Inc. 185 Berry Street, Suite 5000 San Francisco, CA 94107 Attn: LBS Legal Email: [email protected]
13.5. Entire Agreement; Amendments and Waivers. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. No supplement, modification or waiver of this Agreement will be binding unless executed in writing by the Party to be bound thereby. No waiver of the provisions of this Agreement, or any breach thereof, will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, or will be deemed or will constitute a waiver of any other provision hereof (whether or not similar), nor will such waiver constitute a continuing waiver unless otherwise expressly provided.
13.6. Counterparts; Severability. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may rely upon a scanned copy of any Party’s signature as an original for all purposes. In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, will, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement or any other such instrument and the remaining provisions will remain in full force and effect. To the extent permitted by applicable law, any such provision will be restricted in applicability or reformed to the minimum extent required for such provision to be enforceable. This provision will be interpreted and enforced to give effect to the original written intent of the Parties prior to the determination of such invalidity or unenforceability.
13.7. Construction; Incorporation. The headings of the articles, sections, and paragraphs of this Agreement are inserted for convenience only and will not be deemed to constitute part of this Agreement or to affect the construction hereof. All sections and article references are to this Agreement, unless otherwise expressly provided. As used in this Agreement, (a) “hereof”, “hereunder”, “herein” and words of like import will be deemed to refer to this Agreement in its entirety and not just a particular section of this Agreement, and (b) unless the context otherwise requires, words in the singular number or in the plural number will each include the singular number or the plural number, words of the masculine gender will include the feminine and neuter, and, when the sense so indicates, words of the neuter gender will refer to any gender. The Parties acknowledge and agree that: (i) this Agreement is the result of negotiations between the Parties and will not be deemed or construed as having been drafted by any one Party, (ii) each Party and its counsel have reviewed and negotiated the terms and provisions of this Agreement (including, without limitation, any exhibits and schedules attached hereto) and have contributed
Page 15 of 27
A13. Page 160 of 574 to its revision, (iii) the rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be employed in the interpretation of this Agreement, and (iv) the terms and provisions of this Agreement will be construed fairly as to both Parties and not in favor of or against either Party, regardless of which Party was generally responsible for the preparation of this Agreement.
13.8. Relationship of the Parties. Motivate is an independent contractor and neither Motivate nor its employees will, under any circumstances, be considered employees, servants, or agents of City, nor will City or its agents or employees be considered employees, servants, or agents of Motivate. At no time during the Term or otherwise will Motivate, its employees, or agents, represent to any person or entity that Motivate and its employees are acting on behalf of, or as an agent of, City or any of its employees. City will not withhold payments to Motivate for any federal or state unemployment taxes, federal or state income taxes, Social Security tax, or any other amounts for benefits to Motivate. City will not provide to Motivate any insurance coverage or other benefits, including Workers’ Compensation, normally provided by City for its employees. This Agreement does not constitute and will not be construed as constituting a partnership or joint venture or grant of a franchise between the Parties.
13.9. Cooperation. The Parties agree to execute such further instruments and to take such further action as may reasonably be necessary or helpful to carry out the intent of this Agreement.
13.10. Failure or Delay in Performance. Motivate will not be held responsible for failure to perform the duties and responsibilities imposed by this Agreement if such failure is due to Event of Force Majeure, beyond the control of Motivate, that make performance impossible or illegal, unless otherwise specified in this Agreement; provided that Motivate (in order to not be held responsible for failure to perform) will have given City written notification of such Event of Force Majeure as soon as reasonably practicable after the occurrence of such Event of Force Majeure.
13.11. Assignment. Neither Party may assign, transfer, convey, sublet, or otherwise dispose of any award, or any or all of its rights, obligations, or interests under this Agreement without the prior written consent of the other Party; provided, however, that Motivate may assign this Agreement to an affiliate of Motivate without City’s consent.
13.12. Publicity. Subject to the terms hereof, Motivate may make press releases, public statements and responses to media inquiries regarding this Agreement and the Program with City’s prior approval, which approval shall not be unreasonably withheld; provided, however that, (a) in the event of any operational matters pertaining to the Program that are time-sensitive and outside of the usual course (such as closing for weather), Motivate will have the right to make announcements to subscribers and on the Program website/mobile application regarding such matters without the prior approval of City, (b) Motivate will have the right to publish information regarding performance under this Agreement, or of the results and accomplishments attained in such performance, and (c) nothing contained herein will limit Motivate’s right, in the performance of its obligations hereunder, to make announcements and issue statements to promote the Program, Program-related events (e.g. new station opening) and promotions for the purpose of promoting the Program.
Page 16 of 27
A13. Page 161 of 574 13.13. Northwestern University.
13.13.1. Within thirty (30) days of executing this agreement, Motivate agrees to meet with Northwestern University to discuss a mutually agreeable plan for bicycle distribution and/or geo-fenced parking locations for on Northwestern’s Campus.
13.13.2. Motivate will coordinate with Northwestern University to establish geo-fenced parking locations for electric-assist bicycles on the Campus.
13.13.3. Motivate will meet annually with Northwestern to review ridership, station locations, and any other improvements to the Program related to operating on Northwestern University’s Campus.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY.]
Page 17 of 27
A13. Page 162 of 574 IN WITNESS WHEREOF, Motivate and City have executed this Agreement as of the date last set forth below.
MOTIVATE:
MOTIVATE INTERNATIONAL INC.
By: Date: Name: Title:
CITY:
CITY OF EVANSTON
By: Date: Name: Title:
Page 18 of 27
A13. Page 163 of 574 ATTACHMENT A
Description of Services
1. Description of Services. Motivate will operate and maintain the Program according to the description of Services set forth in this Attachment. Motivate shall provide all technical expertise, qualified personnel, equipment, tools, and material to safely and competently accomplish all of the Services.
1.1 Project Management. The Program shall have the same Project Managers as the Chicago Program. The City Project Manager shall serve as the primary point of contact for Motivate with respect to this Agreement. The Motivate Project Manager shall have overall responsibility for day-to-day management and administration of the Services provided under this Agreement and shall serve as the primary contact for the City with respect to this Agreement. Where specifically stated in this Agreement, Motivate shall obtain from the City Project Manager prior written approval of specified activities. However, it shall be the responsibility of Motivate to manage the details of the execution and performance of the Services under this Agreement. The Motivate Project Manager shall, at the reasonable request of City, attend any meeting of the management personnel of the City related to this Agreement, the Program or the Services.
1.2 Staffing. Motivate must, upon receiving a fully executed copy of this Agreement, assign and maintain during the term of this Agreement and any extension of it a staff of competent personnel that is fully equipped, licensed as appropriate, available as needed, and qualified to perform the Services in this Agreement.
2. The Program. The Program comprises the following two components: Stations and Bicycles (which include bicycles with electric assist functionality).
2.1 All components of the Program shall retain interoperability with the Chicago Program.
2.2 All software to operate the Program shall retain interoperability with the Chicago Program.
2.3 Motivate will maintain, and include the Program in, the website created pursuant to the Chicago Program.
2.4 Motivate will include the Program in its operation of the call center required by the Chicago Program.
3. Equipment Deployment.
3.1 Motivate will inspect and store all new equipment prior to deployment.
3.2 Motivate will be responsible for deployment of all equipment.
Page 19 of 27
A13. Page 164 of 574 3.3 Motivate shall deploy ninety (90) bicycles with electric assist functionality, as described in Section 4.3 of the Agreement, in Evanston.
3.4 Motivate shall work with Northwestern University to deploy a mutually agreed upon number of bikes on its campus to support student ridership.
3.5 Motivate shall work with the City to ensure bicycles, including bicycles with electric assist functionality, are located in an efficient and equitable manner.
4. Subscriber Information/Relations.
4.1 Age Requirement for Program Subscribers. Subscriptions will only be issued to individuals 16 years of age and older.
4.2 Bicycle Rental Agreement. Motivate shall use the same user agreement for the Program as Motivate uses for the Chicago Program.
4.3 Divvy for Everyone – Evanston. Motivate shall continue to offer affordable and accessible pricing to qualifying residents while the Program is in operation by managing, funding, and operating the Divvy for Everyone – Evanston (D4EE) program. Motivate and the City shall mutually agree upon eligibility requirements for the D4EE program.
5. Operations
5.1 Continuous Operation and Management. Except as otherwise stated herein, and subject to scheduled downtime, the Program will commence operating on the Effective Date and will remain in operation 24 hours per day, 365 days per year.
5.2 Inspection and Maintenance.
(1) Motivate will, at all times, follow and comply with the manufacturer’s requirements, warranties, and recommendations for assembly, maintenance, storage and repair of all Program equipment.
(2) Motivate will perform regular maintenance checks for each bicycle, with deficient elements repaired or replaced as necessary.
(3) Motivate will clean each Station of dirt and, debris
(4) Motivate will remove conspicuous graffiti promptly after notification.
(5) Motivate will remove conspicuous accumulations of litter from Stations promptly after notification.
5.3 Snow Removal: Recognizing that each snow event will differ in duration, start and end times as well as level of customer activity, the following describes the actions that will be undertaken:
Page 20 of 27
A13. Page 165 of 574 (1) Motivate will clean any accumulation of snow or ice from Motivate Stations within forty eight (48) hours after a storm if there is an accumulation of four (4) inches or more of snow or 1 inch of ice.
(2) On an ongoing basis, the solar panels will be cleaned or brushed off. This is imperative as they are very sensitive to sunlight.
(3) Motivate regularly visits the stations in order to perform routine maintenance and cleaning and to rebalance the number of bicycles parked at each station. During the winter months these regular visits will also include routine checks for snow and ice accumulation.
(4) Staff will only be dispatched to clean the stations when it is safe to do so. Each member will be required to wear all safety gear including traffic vests for high visibility.
(5) Each vehicle will be provided with shovels, brooms and traffic cones to complete the required tasks. This list must be confirmed by staff before departing the yard.
(6) Snow removed from the stations will not be piled onto the roadway or onto the cleared pedestrian path.
(7) A minimum clear path of four (4) feet width will be maintained on all sidewalks. Snow removed from Motivate stations will not be placed in an area that obstructs entrances or exits to/from adjacent buildings or access to above-ground utilities/services/street furniture in the right-of-way.
(8) Snow removed from stations on Parks property will not be piled onto Park pathways or obstruct access to the Park or Park facilities.
(9) Procedures during light snowfalls (less than four (4) inches)
(a) During ongoing operations, staff would visit the stations and clean the stations as required using heavy brooms or shovels. The area around the station will be closed off with pylons during snow removal.
(b) An area, four (4) feet wide around the station, will be maintained clear of snow.
(c) The solar panels, stations and ground area will be cleaned as part of the visit.
(10) Procedures during heavy snowfalls (greater than four (4) inches)
(a) During heavy snowfalls, the system will be temporarily shut down if it is anticipated to be a snow fall of more than four (4) inches. Once the snow
Page 21 of 27
A13. Page 166 of 574 subsides and it is safe for staff to be on the roads, the following will occur:
(1) Stations and solar panels will be cleaned using heavy brooms or shovels. The area around the station will be closed off with pylons during snow removal activities.
(2) An area, four (4) feet wide around the station, will be maintained clear of snow.
(3) Every station must be visited and inspected before the system will be reopened.
5.4 Distribution of Bicycles. Motivate will re-distribute bicycles within the Program service area throughout the day during each day of operation. All bicycles placed in service will be in acceptable operating condition. Motivate shall work with the City to ensure bicycles, including bicycles with electric assist functionality, are redistributed in an efficient and equitable manner.
5.5 Motivate’s Call Center. Motivate will provide to all subscribers, and the public at large, the toll-free telephone number and other contact information for Motivate’s customer service center. The customer service center for the Chicago Program shall also provide service to the Program.
5.6 Comments and Complaints. Motivate will establish and maintain during the Term prompt and efficient procedures for handling complaints from the public for which Motivate receives a notification. Such procedures will be consistent with all applicable laws, rules and regulations and the provisions of this section.
5.7 Program Website. Motivate will maintain a Program website.
5.8 Motivate Staffing Levels. Motivate, at all times, will provide sufficient staff to efficiently and promptly provide the services set forth in this Agreement.
5.9 Transit Integration. Motivate will commence integrating with the Ventra card in 2019 to allow users to initiate a rental with a transit card.
5.10 Relocation, Resizing, and/or Reconfiguration of Stations.
(1) By Motivate. In the event that Motivate wishes to remove, relocate, resize, and/or reconfigure any Station, other than those Stations whose locations are fixed pursuant to the terms of a grant or sponsorship agreement, due to under-utilization or lack of profitability, Motivate may remove, relocate, resize, and/or reconfigure the Station subject to City approval and permitting requirements. All Program stations will remain in Evanston.
(2) By City. If City requires that a Station or parts thereof be relocated to accommodate unexpected commuting patterns, construction or other reasons, then at the request of City, Motivate will adjust the placement or configuration of up to two Stations per year at no
Page 22 of 27
A13. Page 167 of 574 cost. For Station relocation or configuration beyond two Stations, City will compensate Motivate as set forth in Attachment B to this Agreement.
(3) By Private Property Owner. Private property owners or contractors doing private construction on public or private property may request that a Station or parts thereof be relocated to accommodate such construction or other reasons. At the request of the property owner, Motivate will adjust the placement or configuration of a Station. The property owner will compensate Motivate as set forth in in Attachment B to this Agreement. Motivate will invoice and collect payment from a private property owner prior to any such moves.
5.11 Interruption of Service.
(4) Intentional Interruption of Service. If, at any time, Motivate intends, or is required, to temporarily interrupt all or a portion of the service, for any reason beyond Motivate’s reasonable control, including, without limitation, weather, safety, or other event or circumstance where continued service would be unsafe, unavailable, impractical, or impossible, then Motivate will notify City at least 24 hours before the interruption of service.
(5) Unintentional Interruption of Service. If, at any time, a Program malfunction or an event or circumstance occurs where continuous service would be unsafe or unavailable for reasons beyond Motivate’s reasonable control, and this causes or will cause a temporary interruption of service, then Motivate will immediately notify City.
6. Reporting. On a monthly basis, the Operator shall provide final reports including the following minimum metrics:
6.1 Performance Metrics:
(1) YTD Count of active registered members by type at the end of the reporting month
(2) YTD Count of unique casual memberships initiated at the end of the reporting month
(3) Number of new members by type who signed up during the reporting month, by week/month
(4) Number of cancellations and/or expirations of registered members by type during the reporting month
6.2 Ridership:
(1) Trips per day by member type
(2) Total trips per month and YTD per member type
(3) Average number of trips per day of week and hour of the day for weekdays and weekends during the reporting month
Page 23 of 27
A13. Page 168 of 574 (4) Average duration of trips by member type
(5) Average and total length of trips (Straight line distance) by member type
(6) Total and average calories burned per week/month by member type. Based on calculation using total and average trip durations.
(7) Carbon offset per week/month. Based on calculation using total miles traveled (straight line distance)
(8) Average carbon offset per member by type for the month. Based on “total members/total carbon offset”
6.3 Financial Performance:
(1) Operating revenues
Page 24 of 27
A13. Page 169 of 574 ATTACHMENT B
Fee Schedule for Station Relocation, Resizing and/or Reconfiguration
SCENARIO #1 - TEMPORARY CLOSURE OF STATION
Station remains in place but all bikes are removed and docks are covered with hoods; bike share users cannot check out or return bikes to the station.
Station Closure Fee = $500 flat fee + $15 per dock, per day of closure Example for a 31 dock station, for a 2 day closure: $500 + {$15 * 31 * 2} = $1,430.00
SCENARIO #2 - TEMPORARY CLOSURE WITH FULL REMOVAL OF STATION
Entire station and all bikes are removed for the duration of project; station and all bikes will be returned upon completion of project.
Station Removal Fee = $2,000 flat fee + $25 per dock, per day of closure Example for a 31 dock station, for a 2 day removal: $2,000 + {$25 * 31 * 2} = $3,550.00
SCENARIO #3 - TEMPORARY RELOCATION OF A STATION
Entire station and all bikes are removed and relocated to a new location for the duration of the work. In situations where a safe and suitable temporary location cannot be accommodated, a full removal of the station may be necessary and the fees for station removal (below) will be incurred instead. For active construction and for special events only.
Station Relocation Fee = $2,000 flat fee + $15 per dock removal fee Example for a 31 dock station: $2,000 + {$15 * 31} = $2,465.00
Any station that will be permanently relocated will come at a charge of $4,000.
Page 25 of 27
A13. Page 170 of 574 EXHIBIT C
Insurance Requirements and Evidence of Insurance
The Operator must provide and maintain at Operator’s own expense, until Agreement completion and during the time period following completion if Operator is required to perform any additional work, the insurance coverages and requirements specified below, insuring all operations related to the Agreement.
A. INSURANCE TO BE PROVIDED
1) Workers Compensation and Employers Liability Workers Compensation Insurance, as prescribed by applicable law covering all employees who are to provide work under this Contract and Employers Liability coverage with limits of not less than $500,000 each accident, illness or disease.
2) Commercial General Liability (Primary and Umbrella) Commercial General Liability Insurance or equivalent with limits of not less than $2,000,000 per occurrence for bodily injury, personal injury, and property damage liability. Coverages must include the following: All premises and operations, products/completed operations explosion, collapse, underground, separation of insureds, defense, and contractual liability (not to include Endorsement CG 21 39 or equivalent). The City is to be named as an additional insured via blanket endorsement on a primary, non-contributory basis for any liability arising directly or indirectly from the work.
Subcontractors performing work for the Operator must maintain limits of not less than $1,000,000 with the same terms herein.
3) Automobile Liability (Primary and Umbrella) When any motor vehicles (owned, non-owned and hired) are used in connection with work to be performed, the Operator must provide Automobile Liability Insurance with limits of not less than $2,000,000 per occurrence for bodily injury and property damage. The City is to be named as an additional insured via blanket endorsement on a primary, non-contributory basis.
Subcontractors performing work for the Operator must maintain limits of not less than $1,000,000 with the same terms herein.
4) Property All Risk The Operator must maintain All Risk Property Insurance at full replacement cost covering all loss, damage or destruction to the machinery, equipment, bicycles, stations and/or any facility/property (if applicable) including improvements and betterments. The City of Evanston is to be named as an additional insured via blanket endorsement and loss payee. The Operator is responsible for all loss or damage to City property and to personal property of Operator (including bicycles, materials, equipment, stations, fixtures and contents) that are part of this Agreement.
Page 26 of 27
A13. Page 171 of 574 B. ADDITIONAL REQUIREMENTS The Operator must furnish the City of Evanston, 2100 Ridge Avenue, Evanston, IL 60201, original Certificates of Insurance, or such similar evidence, to be in force on the date of this Agreement, and Renewal Certificates of Insurance, or such similar evidence, if the coverages have an expiration or renewal date occurring during the term of this Contract. The receipt of any certificate does not constitute agreement by the City that the insurance requirements in the Agreement have been fully met or that the insurance policies indicated on the certificate are in compliance with all Contract requirements. The failure of the City to obtain certificates or other insurance evidence from Operator is not a waiver by the City of any requirements for the Operator to obtain and maintain the specified coverages. The Operator must advise all insurers of the Contract provisions regarding insurance. Non-conforming insurance does not relieve Operator of the obligation to provide insurance as specified herein. Nonfulfillment of the insurance conditions may constitute a violation of the Agreement, and the City retains the right to stop work until proper evidence of insurance is provided, or the Agreement may be terminated.
Any deductibles or self-insured retentions on referenced insurance coverages must be borne by Operator. The Operator hereby waives and agrees to require their insurers to waive their rights of subrogation against the City, its employees, elected officials, agents, or representatives.
The coverages and limits furnished by Operator in no way limit the Operator's liabilities and responsibilities specified within the Contract or by law.
Any insurance or self insurance programs maintained by the City do not contribute with insurance provided by the Operator under the Agreement.
The required insurance to be carried is not limited by any limitations expressed in the indemnification language in this Agreement or any limitation placed on the indemnity in this Agreement given as a matter of law.
The Operator must require all subcontractors to provide the insurance required herein, or Operator may provide the coverages for subcontractors. All subcontractors are subject to the same insurance requirements of Operator unless otherwise specified in this Agreement.
If Contractor or subcontractor desires additional coverages, the party desiring the additional coverages is responsible for the acquisition and cost.
Page 27 of 27
A13. Page 172 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Erika Storlie, Interim City Manager Subject: Resolution 123-R-19, Authorizing the Interim City Manager to Execute a Lease Agreement with Illinois State Representative, Robyn Gabel, for office space in the Civic Center Date: November 11, 2019
Recommended Action: Staff 123Resolution adoption Council-R - City City the authorizing recommends 19, of Manager to execute a lease agreement with Robyn Gabel, Illinois State Representative for the 18th District, for office space in the Civic Center. The lease will be for a one year term (December 1, 2019 to November 30, 2020) at a rental rate of $5,335/per year ($444.58/per month).
Council Action: For Action
Summary: Illinois State Representative, Robyn Gabel, seeks to enter into a one-year lease agreement with the City of Evanston to provide office space for her and her staff. The total rent is $5,335 for the one-year term. The rent was based on $11 per square foot and the total square footage for the two rooms is as follows:
Room 2600 - 340 square feet ($11 per square foot - $3,740); and Room 2650 - 145 square feet ($11 per square foot - $1,595)
The lease includes two one-year options to renew and includes two phone lines for an additional $60 per month.
Attachments: Resolution 123-R-19 Civic Center Lease Twelve Months Robin Gabel Resolution 123-R-19 Exhibit - Lease for Robyn Gabel
A14. Page 173 of 574 10/30/2019 123-R-19
A RESOLUTION
Authorizing the Interim City Manager to Enter into a Twelve Month Lease Agreement with Illinois Representative Robyn Gabel for Rooms 2600 and 2650 at the Lorraine H. Morton Civic Center
WHEREAS, the City of Evanston (“City”) owns certain real
property, including the property commonly known as the Lorraine H. Morton
Civic Center at 2100 Ridge Avenue, Evanston, Illinois; and
WHEREAS, the City leases office space in the Civic Center to
non-profit organizations and Robyn Gabel, an Illinois Representative for the
18th District, seeks to lease space in the Civic Center; and
WHEREAS, the City and Robyn Gabel desire to enter into lease
agreement for a twelve month term with two one-year options to renew the
lease; and
WHEREAS, the City Council finds it to be in the best interest of
the City to lease Civic Center office space to Robyn Gabel, and to negotiate
and execute a lease agreement with Robyn Gabel,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COUNTY OF COOK, STATE OF ILLINOIS:
SECTION 1: The Interim City Manager is hereby authorized and
directed to sign, and the City Clerk hereby authorized and directed to attest on
behalf of the City of Evanston, a lease for twelve months for Rooms 2600 and
2650 by and between the City and Robyn Gabel in the Lorraine H. Morton Civic
Page 2 of 14
A14. Page 174 of 574 123-R-19
Center. The lease shall be for the following period: December 1, 2019 through
November 30, 2020 and provide two one-year options to renew the lease. The
lease shall be in substantial conformity with the lease marked as Exhibit 1,
attached hereto and incorporated herein by reference.
SECTION 2: The City Manager is hereby authorized and directed
to negotiate any additional terms and conditions of the leases as may be
determined to be in the best interests of the City.
SECTION 3: Resolution 123-R-19 shall be in full force and effect
from and after its passage and approval in the manner provided by law.
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Adopted: ______, 2019
~2~
Page 3 of 14
A14. Page 175 of 574 123-R-19
EXHIBIT 1
LEASE AGREEMENT
~3~
Page 4 of 14
A14. Page 176 of 574 LEASE AGREEMENT
THIS LEASE ("Lease") is by and between CITY OF EVANSTON, an Illinois municipal corporation and a home rule unit of the State of Illinois (the "Landlord") and ROBYN GABEL, an Illinois Representative in the 18th District (the "Tenant") for a certain commercial office space located on the second floor of the Civic Center, 2100 Ridge Avenue, Evanston, Illinois 60201.
In consideration of the rents, covenants and conditions hereafter set forth, the Landlord and Tenant hereby agree as follows:
1. BASIC LEASE PROVISIONS. In addition to the other terms which are elsewhere defined in this Lease, the following words and phrases, whenever used in this Lease, shall have the meanings set forth in this Section 1.
(a) Date of Lease: December 1, 2019
(b) Landlord: The City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201
(c) Tenant: Illinois Representative Robyn Gabel for the 18th District
(d) Premises: Suites 2600 and 2650 2100 Ridge Avenue Evanston, Illinois 60201
(e) Possession Date: November 30, 2020
(f) Lease Term: 12 months (ending November 30, 2020)
(g) Base Rent: $444.58/per month ($5,335 total for the Term)
(h) Renewal: Option for two (2) one-year renewals, no Council approval necessary provided Tenant not in default of any Lease terms.
(i) Delivery of Premises: Landlord will deliver the Premises to Tenant no later than the Possession Date in “broom-clean” state with all building systems functional and in good condition and repair, except as provided herein.
(j) Real Estate Taxes Landlord will be responsible for the payment of the real and Operating estate taxes (if applicable) and the costs of owning, operating, maintaining, and repairing the Building and Premises. The Landlord will not be responsible for
1
Page 5 of 14
A14. Page 177 of 574 maintaining or repairing Tenant improvements, fixtures and personal property within the Premises.
(k) Utilities: Landlord will provide Tenant with two (2) telephone lines at $30 per line ($60 total). Landlord will be responsible for the payment of ALL remaining utilities, including internet access (1 static IP level), electricity, gas and water and other related expenses. If applicable, the Tenant shall be responsible for any and all cell phone charges and television charges for use at the Premises. The Tenant is permitted to use the Landlord’s copy machine and will reimburse the Landlord for said use per month at the rate of $.10/per page.
(l) Permitted Use: Operation of an office space.
(m) Security Deposit: No Deposit Required
(n) Hazard Insurance: Landlord to procure fire and hazard insurance on the Premises.
(o) Tenant Insurance: Tenant to carry commercial liability insurance and insure all equipment, and personal property, limits defined in Paragraph 7.
(p) Signage: Tenant may install its signage at its own expense, to be approved by Landlord and such approval not to be reasonably withheld.
(q) Improvements: The Parties agree and acknowledge that any and all work necessary to move Tenant into Premise shall be at the sole cost and expense of Tenant. The Landlord will provide desks and chairs for use by the Tenant. No other office furniture or other items will be provided for use by the Tenant.
2. PREMISES. Landlord does hereby lease and rent to Tenant, and Tenant does hereby lease, take and rent from Landlord the Premises. The Landlord will cause the halls, corridors, and other parts of the building adjacent to the Premises to be lighted, cleaned and generally cared for, accidents and unavoidable delays excepted. Landlord will provide heat and air-conditioning for the Premises when required by outside temperature. Tenant shall comply with such rules and regulations of the City of Evanston Civic Center for the necessary, proper, and orderly care of the building in which the Premises are located. No modifications, alterations, additions, installations, or renovations, except decorating, shall be undertaken by the Tenant without first obtaining the written permission from the Landlord for items costing more than $2,500.00, such approval not to be unreasonably withheld. The cost of all alterations and additions, if applicable, shall be borne by the Tenant and shall remain for the benefit of Landlord. The Tenant is granted
2
Page 6 of 14
A14. Page 178 of 574 access to the Premises Monday – Friday from 9 a.m. to 10 p.m., Saturday from 8 a.m. to 5 p.m., and no access on Sunday. The Tenant shall have use of the adjacent parking, common areas, loading dock access, within reason, and use of the bathroom facilities.
3. PERMITTED USE. The sole permitted use that Tenant shall use the Premises shall be for general office use and support services of the Tenant (the “Permitted Use”). Tenant shall not use the Premises for any other purpose except the Permitted Use without the prior written approval of Landlord. All applicable laws, ordinances, and City policies shall be observed by the Parties in and around the Premises. The City of Evanston Municipal Code provisions are herein incorporated by reference and made a part of this Lease.
4. TERM. The term of this Lease (the ‘Term”) shall be for a period of one (1) year commencing on December 1, 2019 (the “Possession Date”) and ending on November 30, 2020 (the “Expiration Date”). After the Lease is terminated, the Tenant shall leave the Premises in broom clean condition and shall turn over any and all keys to the City Manager or his or her designee. Subject to Section 8 herein, and excluding damage by fire or other casualty and action of Landlord, Tenant shall pay for any and all damage to the interior of the Premises beyond normal wear and tear and shall do so within thirty (30) days of invoicing by the City. If the Tenant desires to renew the Lease for another term, the Tenant shall give Landlord sixty days written notice of said intention to elect to exercise said option to renew. Lease renewal is subject to approval by the City and Tenant cannot be in default.
5. RENT. Tenant agrees to pay Landlord or Landlord’s agent as rental for the Premises, the monthly Base Rent ($444.58) plus the phone line charges ($60), for a total monthly payment of $504.58, which is due under the terms of this Lease on the 1st day of each month. The first payment due under this Lease Agreement is due and payable on or before December 1, 2019. Payments shall be made payable to: City of Evanston and mailed to: City of Evanston, Attn: Finance Division, 2100 Ridge Avenue, Evanston, IL 60201.
6. NO LIENS. Tenant shall not permit to be created nor to remain undischarged any lien, encumbrance or charge to become, a lien or encumbrance or charge upon the Premises by any of Tenant’s creditors or resulting from leasehold improvements. If any lien or notice of lien on account of an alleged debt of Tenant or any notice of contract by a party engaged by Tenant or Tenant’s contractor to work in the Premises shall be filed against the Premises, Tenant shall, within sixty (60) days after notice of the filing thereof, cause the same to be discharged of record by payment, deposit or bond or obtain title insurance over the same. If Tenant shall fail to cause such lien or notice of lien to be discharged by either paying the amounts claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings or obtain title insurance over the same, Landlord shall be entitled, if Landlord so elects, to defend any prosecution of an action for foreclosure of such lien and any money reasonably paid by Landlord and all reasonable costs and expenses, including attorneys’ fees, reasonably incurred by Landlord in connection therewith, together with interest thereon and shall be paid by Tenant to Landlord within thirty (30) days following Tenant’s receipt of Landlord’s written demand. In the event Tenant diligently contests any such claim of lien, Tenant agrees to indemnify, defend, and hold harmless Landlord from any and all reasonable out of pocket costs, liability and damages, including attorneys’ fees resulting therefrom, and, if requested, upon demand, Tenant agrees to immediately deposit with Landlord cash or surety bond in form and with a company reasonably
3
Page 7 of 14
A14. Page 179 of 574 satisfactory to Landlord in an amount equal to the amount of such contested claim.
7. TENANT INSURANCE OBLIGATIONS. Tenant shall, at the time of signing the Lease and during the entire term hereof, keep in full force and effect a Comprehensive General Liability policy in the amount of Five Hundred Thousand and no/100 Dollars ($500,000.00) with respect to the Premises, with provisions reasonably acceptable to Landlord, and the activities of Tenant in the Premises. The Tenant shall furnish copies of a Certificate of Insurance with the Landlord named as an additional insured with an insurance company acceptable to the Landlord. The Tenant shall furnish, when requested, a certified copy of the policy to the Landlord. An insurance company having less than an “A” Policyholder’s Rating by the Alfred M. Best Company will not be considered acceptable.
8. PERSONAL PROPERTY AND WAIVER OF SUBROGATION. Tenant shall be responsible for insuring all or its own personal property and equipment of Tenant, and equipment located on the Premises. Notwithstanding anything to the contrary contained herein, the Landlord and Tenant shall not be liable to the other for any loss or damage caused by water damage or any of the risks that are or could be covered by a standard all risk hazard insurance policy with an extended coverage endorsement, or for any business interruption, and there shall be no subrogated claim by one party’s insurance carrier against the other party’s carrier arising out of any such loss.
9. QUIET ENJOYMENT. Landlord hereby covenants and agrees that if Tenant shall perform all the covenants and agreements on Tenant’s part to be performed, Tenant shall at all times during the Term have the quiet enjoyment and possession of the Premises.
10. CERTAIN RIGHTS RESERVED TO LANDLORD. In addition to those rights identified above, Landlord reserves the following rights:
(a) to decorate, remodel, repair, alter or otherwise prepare the Premises for re- occupancy if Tenant should permanently vacate the Premises during or prior to the last sixty (60) days of the Term or any part thereof;
(b) to retain keys to the Premises;
(c) to take any and all measures, including, without limitation, inspections, repairs, and alterations to all or any part of the Premises, as may be necessary or desirable for the safety, protection or preservation of the Premises or Landlord's Interests or as may be necessary or desirable in the operation of the commercial portions of the Premises; and
Landlord may enter upon the Premises with reasonable notice to tenant and may exercise any or all of the foregoing rights hereby reserved without being deemed guilty of an eviction or disturbance of Tenant’s use or possession and without being liable in any manner to Tenant. Landlord agrees that it shall not interfere with the Tenant's use and occupancy unless Landlord determines in its reasonable discretion that such interference is necessary.
11. DEFAULT REMEDIES.
4
Page 8 of 14
A14. Page 180 of 574 (a) Any one of the following events shall be deemed to be an event of default hereunder by Tenant subject to Tenant's right to cure:
(1) Tenant shall fail to pay rent within ten (10) days, at the time and place when and where due;
(2) Tenant shall fail to maintain the insurance coverage as set forth herein;
(3) Tenant shall fail to comply with any term, provision, condition or covenant of this Lease or Service Agreement, other than the payment of Rent, and shall not cure, or commence the good faith cure of any such failure, within thirty (30) days after written notice to the Tenant of such failure, provided that if such cure cannot be effected within 30 days, Tenant shall not be in default hereunder so long as Tenant commences such cure or has requested bids for such cure within 45 days and diligently pursues the completion and in good faith and Tenant does subsequently cure said default within 60 days; and
(4) Tenant shall make a general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts as they become due or shall file a petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent, or shall file a petition in any proceeding seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting, or fail timely to contest, the material allegations of a petition filed against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or any material part of it’s properties.
(b) Upon the occurrence of any event of default, Landlord shall have the option to pursue any one or more of the following remedies subject to the laws of the State of Illinois and the Tenants right to cure:
(1) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, but if Tenant fails to do so, Landlord may, without further notice and without prejudice to any other remedy Landlord may have for possession or arrearages in Rent or damages for breach of contract, enter upon the Premises and expel or remove Tenant and its effects, by force, if necessary, without being liable to prosecution or any claim for damage herefore; and Tenant agrees to Indemnify Landlord for all loss and damage which Landlord may suffer by reason of such lease termination, whether through inability to re-let the Premises, or through decrease in Rent, or otherwise. In the event of such termination, Landlord may, at its option, declare the entire amount of the Rent which would become due and payable during the remainder of the Term to be due and payable immediately, in which event Tenant agrees to pay the same at once, together with all Rent theretofore due, provided, however, that such payments shall not constitute a penalty or forfeiture or liquidated damages, but shall merely constitute payment in advance of the Rent for the remainder of the Term.
5
Page 9 of 14
A14. Page 181 of 574
(2) Landlord may recover from Tenant upon demand all of Landlord's costs, charges and expenses, including the fees and costs of counsel, agents and others retained by Landlord which have been incurred by Landlord in enforcing Tenant's obligations hereunder, subject to Landlord prevailing on its claims.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of any other remedy herein provided or available to Landlord at law or in equity, or constitute a forfeiture or waiver of any Rent due hereunder or of any damages suffered by Landlord.
12. INDEMNITY. Tenant agrees that the mayor, department and divisions officials, officers, agents, attorneys, and employees of the Landlord shall not be liable for any claim of any kind or in any amount for any injury to or death or persons or damage to property of Tenant or any other person. Tenant shall indemnify and hold Landlord harmless from all liability whatsoever, and from all losses, costs and expenses (including without limitation attorneys' fees and expenses) incurred or suffered as a result of or related to any real or claimed damage or injury related to Tenant's negligence, gross negligence, or acts of intentional misconduct. In the event that Tenant is named as a defendant in any legal proceeding arising from any acts of gross negligence or intentionally wrongful acts of Landlord for any injury or any claimed damage occurring at the Premises, then Landlord shall indemnify and hold Tenant harmless from all liability whatsoever, and from all losses, costs and expenses (including without limitation attorneys' fees and expenses) incurred or suffered as a result of or related to any real or claimed damage or injury provided that a) Landlord is named as a defendant in the legal proceeding; b) the claim arises from acts of gross negligence or intentional misconduct by the Landlord; c) not the Tenant’s own gross negligence or intentional misconduct; and d) the claim is unrelated to Tenant's use and occupancy of the Premises, subject to Section 8 herein.
13. LIABILITY FOR ACTS OR NEGLECT. Subject to Section 8 hereof, and excluding damage by fire or casualty, if any damage to the Premises, or any part thereof, results from any. act or neglect of Tenant or its invitees or other guests, agents, customers, invitees or other guests of it’s customers, or employees, independent contractors, or the like, Tenant shall immediately repair the same; provided, however, that Landlord may, at its option, repair such damage and Tenant shall, upon demand by the Landlord, reimburse the Landlord forthwith for the total cost of such repairs. All personal property belonging to Tenant shall be at the sole risk of the Tenant and such other person only and the Landlord shall not be liable for damage, theft or misappropriation thereof.
14. DESTRUCTION OR DAMAGE. In the event of destruction of or damage to, the Premises by fire or other casualty, Landlord shall use the proceeds of its insurance to promptly rebuild and restore the Premises to their condition immediately prior to such destruction or damage. Landlord shall rebuild and restore the Premises to the condition of the Premises that existed on the Possession Date. In the event that the proceeds have been applied to indebtedness secured by any mortgage on the Premises, or are otherwise unavailable or the proceeds of insurance are not sufficient to pay for the cost of rebuilding or restoration, and Landlord elects not to make an equivalent amount of funds available to rebuild and restore the Premises, then Landlord or Tenant may terminate this Lease and the Parties rights hereunder and the Parties shall be released of its obligations and this Lease shall cease and terminate as of the date the
6
Page 10 of 14
A14. Page 182 of 574 other Party receives written notice of such election, and neither party hereto shall have any further obligation to the other.
15. CONDEMNATION.
(a) If the whole or any part of the demised Premises shall be taken by any public authority under the power of eminent domain, the Lease term shall cease as of the day of possession shall be taken by such authority if such is of the entire demised Premises and any rents shall be prorated as of said date. If the entire premises are not taken, but such taking is more than 20% of the Premises the Tenant shall have the option to terminate this lease. If the taking is less then 20% and such taking would cost the Tenant monies to reconfigure/ restructure the Premises or make it not practical to continue said business, tenant shall have the option to terminate the lease upon 30 days written notice to Landlord.
(b) All compensation awarded for any taking under the power of eminent domain, whether in whole or in part of the demised premises shall be the property of the landlord, however, the landlord shall not be entitled to any award made expressly to the tenant for the taking of the tenant's business value, furniture, fixtures or leasehold improvements (exclusive of the Landlord's contributions).
16. ATTORNEYS' FEES AND EXPENSES. If at any time during the Term of this Lease either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease, or any default hereunder, each party shall pay its own attorneys fees and costs.
17. ENTIRE AGREEMENT. This Lease contains the entire agreement of the parties with respect to the Premises and no representations or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. No failure of Landlord to exercise any power given Landlord hereunder or to insist upon strict compliance by Tenant of any obligation hereunder, and no custom or practice at variance with the terms hereof, shall constitute a waiver of Landlord's right to demand strict compliance with the terms hereof.
18. TIME. Time is of the essence of this Lease, and of each term, condition and provision hereof.
19. HOLDING OVER. Upon termination of this Lease, by lapse of time or otherwise, Tenant shall surrender the Premises (and all keys thereto) in the same condition as at commencement of the Term, excepting only reasonable wear and tear and loss by insured casualty. If Tenant remains in possession after expiration of the Term, Tenant agrees to yield up immediate and peaceable possession to Landlord, and if failing to do so, in connection with the expiration of the Term or any termination hereof by the Parties, the Tenant shall pay the sum of fifty and no/100 Dollars ($50.00) per day, for the time such possession is withheld. The Landlord or its legal representative at any time after the expiration of the Term, without notice,
7
Page 11 of 14
A14. Page 183 of 574 to re-enter the Premises, and to expel, remove and put the Tenant or any person(s) occupying the said Premises, using such force as may be necessary, and to repossess and enjoy the Premises again as before this Lease, without prejudice to any remedies which might otherwise be used for arrears of rent or breach of covenants; or in cases the said Premises shall be abandoned, deserted, or vacated and remain unoccupied fifteen days consecutively, the Tenant hereby authorizes and requests the Landlord to re-enter the Premises and remove all property found therein, regardless of ownership, place them in some regular storage warehouse or other suitable storage, at Tenant’s expense, for no more than forty-five days, and to proceed to re-rent the Premises at the Landlord’s option and discretion and apply all money so received after paying the expenses of removal toward the rent accruing under this Lease. This request shall not be construed as requiring compliance therewith on the part of the Landlord. If the Tenant shall fail to pay the rent at the times, place and in the manner above provided, and the same shall remain unpaid ten (10) business days after the day whereon the same should be paid, the Landlord by reason thereof shall be authorized to declare the term ended and the Tenant hereby agrees that the Landlord, its agents or assigns may begin suit for possession and/or rent. In the event of re-entry and removal of the articles found on the Premises and personally owned by Tenant or others, the Tenant hereby authorizes and requests the Landlord to sell the same at public or private sale within fifteen (15) days after storage time period provided above. The proceeds of said sale shall be applied to the expenses of storage, removal, sale expenses and back due rent.
20. ASSIGNMENT AND SUBLETTING. This Lease shall bind and inure to the benefit of each of the parties, their respective heirs, successors, and assigns; provided however, that Tenant shall not assign its interest under this lease or sublet all or any portion of the Premises without first obtaining Landlord's prior written consent in writing, which consent will not be unreasonably withheld. No assignment or sublease shall relieve Tenant of its obligation to pay rent or perform other obligations required by this lease unless Landlord agrees in writing at the time the assignment is made, and no consent to one assignment or subletting shall be consent to any further assignment or subletting. Notwithstanding the foregoing, Tenant shall have the right to assign this Lease or sublet the Premises to any parent, subsidiary, or affiliate of Tenant, including any successor to Tenant by merger.
21. SEVERABILITY. If any term, covenant or condition of this Lease or the application thereof to any person or circumstance shall be determined to be invalid or unenforceable to any extent, neither the remainder of this Lease nor the application of such term, covenant or condition to any other person or circumstance shall be affected thereby, and each term, covenant or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law.
22. TENANT SIGNAGE. Tenant agrees that any signage installed on the Premises will comply in all respects with applicable governmental requirements and Tenant will obtain and pay the cost of any required sign permits. Any and all signage, bulletins, posters must be reviewed and approved by the Landlord, prior to Tenant posting the same.
23. GOVERNING LAW AND TIME LIMITATION. This Lease shall be construed and enforced in accordance with the laws of the State of Illinois. All disputes relating to the interpretation and enforcement of the provisions of this Lease shall be resolved exclusively by the federal or state court located in Cook County, Illinois, and the parties hereto hereby submit to
8
Page 12 of 14
A14. Page 184 of 574 the jurisdiction and venue of the court for such purpose.
24. NOTICES. Notices sent to the Landlord, should be mailed to the address set forth in Paragraph 1(b) of this Lease and notice to the Tenant should be mailed to the address set forth in Paragraph 1(c) of this Lease. A mailed notice must be sent via certified mail, return receipt requested and effective three (3) business days after deposit in the U.S. Mail. Notice given by overnight courier is effective upon delivery.
25. REPRESENTATIONS OF LANDLORD. Landlord hereby represents to Tenant that: (a) Landlord is the owner of the Premises and no mortgage or similar instrument affects the Premises; and (b) to the Landlord’s knowledge, the Premises may lawfully be used for the Permitted Use under applicable laws.
[SIGNATURES ON FOLLOWING PAGE]
9
Page 13 of 14
A14. Page 185 of 574 IN WITNESS WHEREOF, both of said Landlord and Tenant have caused this Lease to be fully executed as of the later date indicated below by the duly authorized officer or manager of each of the respective parties.
Landlord
City of Evanston, a home rule unit of local government located in Cook County, Illinois
By:
Name:
Tenant
Illinois State Representative, Robyn Gabel
By:
Name:
10
Page 14 of 14
A14. Page 186 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Katheryn Boden, Economic Development Specialist CC: Johanna Leonard, Director of Community Development; Paul Zalmezak, Economic Development Manager Subject: Ordinance 117-O-19, Approving First Amendment to Tax Increment Redevelopment Ridge and Howard the Project and Plan for Redevelopment Project Area Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 117-O-19, approving First Amendment to Tax Increment Redevelopment Plan and Project for the Howard and Ridge Redevelopment Project Area.
Council Action: For Introduction
Summary: The City Council approved the creation of the Howard Ridge Tax Increment Financing (TIF) district on January 26, 2004. The TIF district will expire with the final collection of revenues on December 31, 2027. The existing boundary, shaded in the attached map, runs along the southern boundary of Evanston from Ridge Avenue on the west to the CTA tracks on the east. Staff is recommending approval of First Amendment to the TIF which will result in the expansion of the Howard Ridge TIF District.
The expanded area extends west of Ridge Avenue to 1415 Howard (just east of Ashland Avenue) the for potential provide properties underutilized several incorporating which redevelopment redevelopment during the remaining life of the TIF district. Immediate opportunities include the vacant Dairy Queen (911 Howard St.) site, which is under contract for a proposed affordable senior housing development by Evergreen Real Estate Group and CJE Senior Life. The map of the proposed amended TIF district is also attached.
A15. Page 187 of 574 Recognizing this opportunity, on March 28, 2019 the City Council authorized the approval of a contract with Kane McKenna & Associates (KMA) to determine if the proposed expansion area qualifies under State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment Act.
Working with city staff, KMA completed the attached First Amendment to the Howard Ridge TIF Redevelopment Plan & Project and the TIF Qualification & Designation reports. For several months, KMA conducted the onsite analysis of the properties to determine the TIF physical qualification factors and studied the economic data provided by Cook County and city staff. KMA also assisted staff convene the Joint Review Board (JRB) meeting on September 25, 2019 and the public hearing on October 28, 2019, as well as the associated newspaper notices and public mailings.
The qualification studies, reports, public notices, mailings, JRB meeting, and public hearing process follow the guidelines outlined by the State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment Act. The final step in the process is the City Council agreeing to amend the TIF by adopting the three ordinances, attached.
Additional information aboutnances, the existing Howard Ridge TIF district, ordi redevelopment plan, and annual reports can be found at the following link: https://www.cityofevanston.org/business/tif-districts.
Legislative History: On September 25, 2019 the Joint Review Board unanimously approved an advisory, non- binding recommendation to the City Council. The City Council fulfilled the obligations of the TIF Act by convening a public hearing on October 28, 2019.
Attachments: Ordinance 117-O-19 Approving First Amendment Howard and Ridge Redevelopment Plan First Amendment to Howard and Ridge TIF District Project With Exhibits First Amendment to Howard and Ridge TIF District Eligibility Report Proposed TIF Expansion Boundary Map
Page 2 of 76
A15. Page 188 of 574 9/21/2019
117-O-19
AN ORDINANCE OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, APPROVING FIRST AMENDMENT TO TAX INCREMENT REDEVELOPMENT PLAN AND PROJECT FOR THE HOWARD AND RIDGE REDEVELOPMENT PROJECT AREA
WHEREAS, the City of Evanston (“City”) is a home rule municipality
organized under the laws of the State of Illinois; and
WHEREAS, the General Assembly of the State of Illinois has provided by
law the Illinois Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-1 et
seq. (“Act”), to assist in the financing of certain improvements in areas in the City which
meet the requirements therein; and
WHEREAS, the City, pursuant to Ordinance Numbers 2-O-04 and 3-O-04
adopted on January 26, 2004, established the City’s Howard and Ridge Tax Increment
Financing District (“Original TIF District”) relative to the redevelopment project area,
legally described in EXHIBIT A attached hereto and made part hereof (“Original
Redevelopment Project Area”), approved a redevelopment plan and project in relation
to the Original TIF District (“Original Redevelopment Plan and Project”) and adopted tax
increment financing for the Original TIF District; and
WHEREAS, the City desires to add certain parcels of property to the
Original Redevelopment Project Area, said parcels of property being legally described
in EXHIBIT B attached hereto and made part hereof (“Added Parcels”); and
WHEREAS, pursuant to Section 11-74.4-5 of the Act, the Mayor and City
Council of the City (the "Corporate Authorities") called a public hearing relative to
amending the Original Redevelopment Project Area and Original Redevelopment Plan
Page 3 of 76
A15. Page 189 of 574 117-O-19
and Project to add the Added Parcels to the Original Redevelopment Project Area
(“First Amended Redevelopment Project Area”) and the Original Redevelopment Plan
and Project (“First Amended Redevelopment Plan and Project”) under the Act for
October 28, 2019; and
WHEREAS, due notice with respect to such hearing was given pursuant
to Section 11-74.4-5 of the Act, said notice being given to taxing districts and to the
Department of Commerce and Economic Opportunity of the State of Illinois by certified
mail on September 10, 2019, by publication on ______, 2019, and
______, 2019, and by certified mail to taxpayers within the Area on
October 7, 2019; and
WHEREAS, the City has heretofore convened a joint review board as
required by, and in all respects in compliance with, the provisions of the Act; and
WHEREAS, the Corporate Authorities have reviewed the information
concerning such factors presented at the public hearing and have reviewed other
studies and are generally informed of the conditions in the proposed First Amended
Redevelopment Project Area that could cause the First Amended Redevelopment
Project Area to be confirmed as a "conservation area" as defined in the Act; and
WHEREAS, the Corporate Authorities have reviewed the conditions
pertaining to lack of private investment in the proposed First Amended Redevelopment
Project Area to determine whether private development would take place in the
proposed First Amended Redevelopment Project Area as a whole without the adoption
of the proposed First Amended Redevelopment Plan and Project; and
WHEREAS, the Corporate Authorities have reviewed the conditions
pertaining to real property in the proposed First Amended Redevelopment Project Area
to determine whether contiguous parcels of real property and improvements thereon in
Page 4 of 76
A15. Page 190 of 574 the proposed First Amended Redevelopment Project Area would be substantially
benefited by the proposed Project improvements; and
WHEREAS, the Corporate Authorities have reviewed the proposed First
Amended Redevelopment Plan and Project and also the existing comprehensive plan
for development of the City as a whole to determine whether the proposed First
Amended Redevelopment Plan and Project conform to the comprehensive plan of the
City.
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of
the City of Evanston, Cook County, Illinois, as follows:
SECTION 1. Findings. That the Corporate Authorities of the City of
Evanston hereby make the following findings:
a. The First Amended Redevelopment Area is
legally described in EXHIBIT C attached hereto and incorporated
herein as if set out in full by this reference. The general street
location for the First Amended Redevelopment Area is described in
EXHIBIT D attached hereto and incorporated herein as if set out in
full by this reference. The map of the First Amended
Redevelopment Area is depicted on EXHIBIT E attached hereto
and incorporated herein as if set out in full by this reference.
b. There exist conditions that cause the First
Amended Redevelopment Area to be subject to designation as a
redevelopment project area under the Act and to be confirmed as a
“conservation area” as defined in Section 11-74.4-3(b) of the Act.
c. The Added Parcels, on the whole, has not
been subject to growth and development through investment by
Page 5 of 76
A15. Page 191 of 574 117-O-19
private enterprise and would not reasonably be anticipated to be
developed without the adoption of the First Amended
Redevelopment Plan and Project.
d. The First Amended Redevelopment Plan and Project. conform to
the comprehensive plan for the development of the City as a whole,
as reflected in the City’s zoning map.
e. As set forth in the First Amended
Redevelopment Plan and Project, it is anticipated that all
obligations incurred to finance redevelopment project costs, if any,
as defined in the First Amended Redevelopment Plan and Project,
shall be retired within twenty-three (23) years after the Area is
designated.
f. The Added Parcels are contiguous to one
another and the Original Redevelopment Project Area, and only
those contiguous parcels of real property and improvements
thereon that will be substantially benefited by the proposed Project
improvements are included in the proposed Area.
SECTION 2. Plan and Project Approved. That the First Amended
Redevelopment Plan and Project, which were the subject matter of the public hearing
held on October 28, 2019, are hereby adopted and approved. A copy of the First
Amended Redevelopment Plan and Project is set forth in EXHIBIT F attached hereto
and incorporated herein as if set out in full by this reference.
SECTION 3. Invalidity of Any Section. That if any section, paragraph, or
provision of this Ordinance shall be held to be invalid or unenforceable for any reason,
Page 6 of 76
A15. Page 192 of 574 the invalidity or unenforceability of such section, paragraph, or provision shall not affect
any of the remaining provisions of this Ordinance.
SECTION 4. Superseder and Effective Date. All ordinances, resolutions,
motions, or orders in conflict herewith shall be, and the same hereby are, repealed to
the extent of such conflict, and this Ordinance shall be in full force and effect
immediately upon its passage by the Corporate Authorities and approval as provided by
law. The following attachments are incorporated herein by reference.
AYES ______NAYS ______ABSENT ______
Introduced:______, 2019 Approved:
Adopted:______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Page 7 of 76
A15. Page 193 of 574 Page 8 of 76
A15. Page 194 of 574 EXHIBIT A
ORIGINAL REDEVELOPMENT PROJECT AREA LEGAL DESCRIPTION
Page 9 of 76
A15. Page 195 of 574 117-O-19
EXHIBIT B
ADDED PARCELS LEGAL DESCRIPTION
Page 10 of 76
A15. Page 196 of 574 EXHIBIT C
FIRST AMENDED REDEVELOPMENT PROJECT AREA LEGAL DESCRIPTION
Page 11 of 76
A15. Page 197 of 574 117-O-19
EXHIBIT D
The Redevelopment Project Area (the "RPA") RPA is generally bounded on the north by various parcels that front Howard Street and Chicago Avenue, on the east by the City of Evanston's (the "City") boundaries and the Chicago Transit Authority (CTA) Red Line, on the south by City boundaries and on the west by Ashland Avenue. The RPA contains mixed residential uses, retail/commercial properties and institutional uses.
Page 12 of 76
A15. Page 198 of 574 EXHIBIT E
MAP OF
FIRST AMENDED REDEVELOPMENT PLAN AND PROJECT
Page 13 of 76
A15. Page 199 of 574 117-O-19
EXHIBIT F
FIRST AMENDED REDEVELOPMENT PLAN AND PROJECT
Page 14 of 76
A15. Page 200 of 574 Alderman ______moved and Alderman ______
seconded the motion that said ordinance as presented and read by the City Clerk be
adopted.
After a full discussion thereof including a public recital of the nature of the matter
being considered and such other information as would inform the public of the nature of
the business being conducted, the Mayor directed that the roll be called for a vote upon
the motion to adopt said ordinance as read.
Upon the roll being called, the following Alderman voted AYE: ______
______
______
The following Alderman voted NAY: ______
______
Whereupon the Mayor declared the motion carried and said ordinance adopted,
approved and signed the same in open meeting and directed the City Clerk to record
the same in full in the records of the Mayor and City Council of the City of Evanston,
Cook County, Illinois, which was done.
Other business not pertinent to the adoption of said ordinance was duly
transacted at the meeting.
Upon motion duly made, seconded and carried, the meeting was adjourned.
______City Clerk
Page 15 of 76
A15. Page 201 of 574 Page 16 of 76
A15. Page 202 of 574 STATE OF ILLINOIS) ) SS COUNTY OF COOK )
CERTIFICATION OF ORDINANCE AND MINUTES
I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the City of Evanston, Cook County, Illinois (the “City”), and that as such official I am the keeper of the records and files of the Mayor and City Council of the City (the “Corporate Authorities”).
I do further certify that the foregoing is a full, true and complete transcript of that portion of the minutes of the meeting of the Corporate Authorities held on the __ day of ______, 2019, insofar as same relates to the adoption of an ordinance entitled:
AN ORDINANCE of the City of Evanston, Cook County, Illinois, Approving First Amendment To Tax Increment Redevelopment Plan And Project For The Howard and Ridge Redevelopment Project Area .
a true, correct and complete copy of which said ordinance as adopted at said meeting appears in the foregoing transcript of the minutes of said meeting.
I do further certify that the deliberations of the Corporate Authorities on the adoption of said ordinance were conducted openly, that the vote on the adoption of said ordinance was taken openly, that said meeting was held at a specified time and place convenient to the public, that notice of said meeting was duly given to all of the news media requesting such notice; that an agenda for said meeting was posted at the location where said meeting was held and at the principal office of the Corporate Authorities at least 48 hours in advance of the holding of said meeting; that said agenda described or made specific reference to said ordinance; that said meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the Corporate Authorities have complied with all of the provisions of said Act and said Code and with all of the procedural rules of the Corporate Authorities.
IN WITNESS WHEREOF, I hereunto affix my official signature and the seal of the City, this _____ day of November, 2019.
______City Clerk
(SEAL)
Page 17 of 76
A15. Page 203 of 574 Draft Dated July 22, 2019
FIRST AMENDMENT TO THE CITY OF EVANSTON HOWARD AND RIDGE TIF DISTRICT REDEVELOPMENT PLAN AND PROJECT NO. 5
Prepared Jointly by:
City of Evanston and Kane, McKenna and Associates, Inc.
Original Redevelopment Plan and Project: January 27, 2004 First Amendment to Redevelopment Plan and Project: ______, 2019
Page 18 of 76
A15. Page 204 of 574
The City of Evanston’s (hereinafter the “City”) Howard and Ridge TIF Redevelopment Plan and Project is hereby amended as described herein. The amendatory language contained herein constitutes the First Amendment to the TIF Redevelopment Plan and Project adopted in 2004.
1) Section I “Introduction” on page 1, the first through third paragraphs are to be replaced with the following: “The RPA, as amended, is generally bounded by tax parcels that front Howard Street and Chicago Avenue to the north, Ashland Avenue on the west, the City boundaries on the south and on the east.
The areas generally located to the west of Ridge Avenue are included as part of the First Amendment to the RPA. The RPA includes mixed uses consisting of residential (multi- family/apartments), retail/commercial properties, and institutional uses.
2) Section I “Introduction” on page 4, the first paragraph, references a boundary map in Exhibit 2. The boundary map as amended, is now included in Exhibit 2 attached hereto.
3) Section II “Redevelopment Project Legal Description” on page 6 is to be replaced with an amended Exhibit 1.
4) Section IV. “Evidence of the Lack of Development and Growth Within the RPA and Assessment of Fiscal Impact on Affected Taxing Districts”, Section A. “Evidence of the Lack of Development and Growth Within the RPA”, on page 8, a new paragraph is added at the bottom of the page:
“The RPA as amended consists of older buildings and properties located west of Ridge Avenue. Concerns relating to the marketability of current uses, along with the ability to compete in the wider market place, have served as the basis for the expansion of the RPA in order to increase investment and job creation along Howard Street.”
5) Section V “TIF Qualification Factors Existing in the Redevelopment Project Area” on page 11, is amended to add a new second paragraph after Findings: Exhibit 4 also includes a First Amendment to the Howard and Ridge TIF Qualification/Designation Report for the properties west of Ridge Avenue. The first paragraph after “Eligibility Survey” is amended to include “and June, 2019” after “March of 2003”.
6) Section VI.E. The “Redevelopment Project” page 14 to 19, entitled “City of Evanston Redevelopment Project, Estimated Project Costs” is hereby deleted and replaced with the following:
1
Page 19 of 76
A15. Page 205 of 574
“Eligible Redevelopment Project Costs. Under the TIF Act, redevelopment project costs mean and include the sum total of all reasonable or necessary costs incurred or estimated to be incurred as well as any such costs incidental to the Plan. (Private investments, which supplement “Redevelopment Project Costs,” are expected to substantially exceed such redevelopment project costs.) Eligible costs permitted by the Act and pertaining to this Plan include:
(1) Professional Service Costs – Costs of studies, surveys, development of plans, and specifications, implementation and administration of the redevelopment plan including but not limited to staff and professional service costs for architectural, engineering, legal, financial, planning or other services, provided however that no charges for professional services may be based on a percentage of the tax increment collected; except that no contracts for professional services, excluding architectural and engineering services, may be entered into if the terms of the contract extend beyond a period of 3 years. After consultation with the municipality, each tax increment consultant or advisor to a municipality that plans to designate or has designated a redevelopment project area shall inform the municipality in writing of any contracts that the consultant or advisor has entered into with entities or individuals that have received, or are receiving, payments financed by tax increment revenues produced by the redevelopment project area with respect to which the consultant or advisor has performed, or will be performing, service for the municipality. This requirement shall be satisfied by the consultant or advisor before the commencement of services for the municipality and thereafter whenever any other contracts with those individuals or entities are executed by the consultant or advisor;
The cost of marketing sites within the Redevelopment Project Area to prospective businesses, developers, and investors;
Annual administrative costs shall not include general overhead or administrative costs of the municipality that would still have been incurred by the municipality if the municipality had not designated a Redevelopment Project Area or approved a redevelopment plan;
In addition, redevelopment project costs shall not include lobbying expenses;
(2) Property Assembly Costs – Costs including but not limited to acquisition of land and other property (real or personal) or rights or interests therein, demolition of buildings, site preparation, site improvements that serve as an engineered barrier addressing ground level or below ground environmental contamination, including, but not limited to parking lots and other concrete or asphalt barriers, and the clearing and grading of land;
(3) Improvements to Public or Private Buildings – Costs of rehabilitation, reconstruction, repair, or remodeling of existing public or private buildings, fixtures, and leasehold improvements; and the cost of replacing an existing public building if pursuant to the implementation of a redevelopment project the existing public building is to be demolished to use the site for private investment or devoted to a different use requiring private investment;
2
Page 20 of 76
A15. Page 206 of 574
(4) Public Works – Costs of the construction of public works or improvements, except that redevelopment project costs shall not include the cost of constructing a new municipal public building principally used to provide offices, storage space, or conference facilities or vehicle storage, maintenance, or repair for administrative, public safety, or public works personnel and that is not intended to replace an existing public building as provided under paragraph (3) of subsection (q) of Section 11-74.4-3 unless either (i) the construction of the new municipal building implements a redevelopment project that was included in a redevelopment plan that was adopted by the municipality prior to November 1, 1999 or (ii) the municipality makes a reasonable determination in the redevelopment plan, supported by information that provides the basis for that determination, that the new municipal building is required to meet an increase in the need for public safety purposes anticipated to result from the implementation of the redevelopment plan;
(5) Job Training – Costs of job training and retraining projects, including the cost of "welfare to work" programs implemented by businesses located within the redevelopment project area;
(6) Financing Costs – Costs including but not limited to all necessary and incidental expenses related to the issuance of obligations and which may include payment of interest on any obligations issued hereunder including (a) interest accruing during the estimated period of construction of any redevelopment project for which such obligations are issued and for a period not exceeding 36 months thereafter and (b) reasonable reserves related thereto;
(7) Capital Costs – To the extent the municipality by written agreement accepts and approves the same, all or a portion of a taxing district's capital costs resulting from the redevelopment project necessarily incurred or to be incurred within a taxing district in furtherance of the objectives of the redevelopment plan and project;
(8) School-Related Costs – An elementary, secondary, or unit school district's increased costs attributable to assisted housing units located within the Redevelopment Project Area for which the developer or redeveloper receives financial assistance through an agreement with the municipality or because the municipality incurs the cost of necessary infrastructure improvements within the boundaries of the assisted housing sites necessary for the completion of that housing as authorized by the Act, and which costs shall be paid by the municipality from the Special Tax Allocation Fund when the tax increment revenue is received as a result of the assisted housing units and shall be calculated annually.1 Certain library district costs may also be paid as provided for in the Act.
1 The calculation is as follows: (A) for foundation districts, excluding any school district in a municipality with a population in excess of 1,000,000, by multiplying the district's increase in attendance resulting from the net increase in new students enrolled in that school district who reside in housing units within the redevelopment project area that have received financial assistance through an agreement with the municipality or because the municipality incurs the cost of necessary infrastructure improvements within the boundaries of the housing sites necessary for the completion of that housing as authorized by the Act since the designation of the redevelopment project area by the most recently available per capita tuition cost as defined in Section 10-20.12a of the School Code less any increase in general State aid as defined in Section 18-8.05 of the School Code attributable to these added new students subject to the following annual limitations: (i) for unit school districts with a district average 1995-96 Per Capita Tuition Charge of less than $5,900, no more than 25% of the total amount of property tax increment revenue produced by those housing units that have received tax increment finance assistance under the Act; (ii) for elementary school districts with a district average 1995-96 Per Capita Tuition Charge of less than $5,900, no more than 17% of the total amount of property tax increment revenue produced by those housing units that have received tax increment finance assistance under the Act; and (iii) for secondary school districts with a district average 1995-96 Per Capita Tuition Charge of less than $5,900, no more than 8% of the total amount of property tax increment revenue produced by those housing units that have received tax
3
Page 21 of 76
A15. Page 207 of 574
(9) Relocation Costs – To the extent that a municipality determines that relocation costs shall be paid or is required to make payment of relocation costs by federal or State law or in order to satisfy subparagraph (7) of subsection (n) of the Act;
(10) Payment in lieu of taxes;
(11) Other Job Training – Costs of job training, retraining, advanced vocational education or career education, including but not limited to courses in occupational, semi-technical or technical fields leading directly to employment, incurred by one or more taxing districts, provided that such costs (i) are related to the establishment and maintenance of additional job training, advanced vocational education or career education programs for persons employed or to be employed by employers located in a Redevelopment Project Area; and (ii) when incurred by a taxing district or taxing districts other than the municipality, are set forth in a written agreement by or among the municipality and the taxing district or taxing districts, which agreement describes the program to be undertaken, including but not limited to the number of employees to be trained, a description of the training and services to be provided, the number and type of positions available or to be available, itemized costs of the program and sources of funds to pay for the same, and the term of the agreement. Such costs include, specifically, the payment by community college districts of costs pursuant to Sections 3-37, 3-38, 3-40 and 3-40.1 of the Public Community College Act and by school districts of costs pursuant to Sections 10-22.20a and 10-23.3a of The School Code;
(12) Developer Interest Cost – Interest cost incurred by a redeveloper related to the construction, renovation or rehabilitation of a redevelopment project provided that:
(A) such costs are to be paid directly from the Special Tax Allocation Fund established pursuant to the Act; (B) such payments in any one year may not exceed 30% of the annual interest costs incurred by the redeveloper with regard to the redevelopment project during that year; (C) if there are not sufficient funds available in the Special Tax Allocation Fund to make the payment then the amounts so due shall accrue and be payable when sufficient funds are available in the Special Tax Allocation Fund; (D) the total of such interest payments paid pursuant to the Act may not exceed 30% of the total (i) cost paid or incurred by the redeveloper for the redevelopment project plus (ii) redevelopment project costs excluding any property assembly costs and any relocation costs incurred by a municipality pursuant to the Act;
increment finance assistance under the Act. (B) For alternate method districts, flat grant districts, and foundation districts with a district average 1995- 96 Per Capita Tuition Charge equal to or more than $5,900, excluding any school district with a population in excess of 1,000,000, by multiplying the district's increase in attendance resulting from the net increase in new students enrolled in that school district who reside in housing units within the redevelopment project area that have received financial assistance through an agreement with the municipality or because the municipality incurs the cost of necessary infrastructure improvements within the boundaries of the housing sites necessary for the completion of that housing as authorized by the Act since the designation of the redevelopment project area by the most recently available per capita tuition cost as defined in Section 10-20.12a of the School Code less any increase in general state aid as defined in Section 18-8.05 of the School Code attributable to these added new students subject to the following annual limitations: (i) for unit school districts, no more than 40% of the total amount of property tax increment revenue produced by those housing units that have received tax increment finance assistance under the Act; (ii) for elementary school districts, no more than 27% of the total amount of property tax increment revenue produced by those housing units that have received tax increment finance assistance under the Act; and (iii) for secondary school districts, no more than 13% of the total amount of property tax increment revenue produced by those housing units that have received tax increment finance assistance under the Act. (C) For any school district in a municipality with a population in excess of 1,000,000, additional provisions apply.
4
Page 22 of 76
A15. Page 208 of 574
(E) the cost limits set forth in subparagraphs (B) and (D) of paragraph shall be modified for the financing of rehabilitated or new housing units for low-income households and very low-income households, as defined in Section 3 of the Illinois Affordable Housing Act. The percentage of 75% shall be substituted for 30% in subparagraphs (B) and (D). (F) Instead of the eligible costs provided by subparagraphs (B) and (D), as modified by this subparagraph, and notwithstanding any other provisions of the Act to the contrary, the municipality may pay from tax increment revenues up to 50% of the cost of construction of new housing units to be occupied by low-income households and very low-income households as defined in Section 3 of the Illinois Affordable Housing Act. The cost of construction of those units may be derived from the proceeds of bonds issued by the municipality under the Act or other constitutional or statutory authority or from other sources of municipal revenue that may be reimbursed from tax increment revenues or the proceeds of bonds issued to finance the construction of that housing. The eligible costs provided under this subparagraph (F) shall be an eligible cost for the construction, renovation, and rehabilitation of all low and very low-income housing units, as defined in Section 3 of the Illinois Affordable Housing Act, within the Redevelopment Project Area. If the low and very low-income units are part of a residential redevelopment project that includes units not affordable to low and very low-income households, only the low and very low-income units shall be eligible for benefits under subparagraph (F).2
The TIF Act prohibits certain costs. Unless explicitly stated herein, the cost of construction of new privately-owned buildings shall not be an eligible redevelopment project cost. In addition, the TIF Act prohibits costs related to retail development that results in the closing of nearby facilities of the same retailers. Specifically, none of the redevelopment project costs enumerated in the TIF Act shall be eligible redevelopment project costs if those costs would provide direct financial support to a retail
2 The standards for maintaining the occupancy by low-income households and very low-income households, as defined in Section 3 of the Illinois Affordable Housing Act, of those units constructed with eligible costs made available under the provisions of this subparagraph (F) of paragraph (11) shall be established by guidelines adopted by the municipality. The responsibility for annually documenting the initial occupancy of the units by low- income households and very low-income households, as defined in Section 3 of the Illinois Affordable Housing Act, shall be that of the then current owner of the property. For ownership units, the guidelines will provide, at a minimum, for a reasonable recapture of funds, or other appropriate methods designed to preserve the original affordability of the ownership units. For rental units, the guidelines will provide, at a minimum, for the affordability of rent to low and very low-income households. As units become available, they shall be rented to income-eligible tenants. The municipality may modify these guidelines from time to time; the guidelines, however, shall be in effect for as long as tax increment revenue is being used to pay for costs associated with the units or for the retirement of bonds issued to finance the units or for the life of the redevelopment project area, whichever is later.
5
Page 23 of 76
A15. Page 209 of 574
“CITY OF EVANSTON HOWARD AND RIDGE REDEVELOPMENT PROJECT ESTIMATED PROJECT COSTS
Program Actions/Improvements Estimated Costs (A)
1. Utility Improvements including, but not limited to $ 3,000,000 water, storm, sanitary sewers, the service of public facilities, public parking facilities and road and streetscape improvements
2. Demolition, Site Preparation, Environmental Cleanup 2,500,000 and Related Costs
3. Land Acquisition, Assembly Costs and Relocation Costs 2,500,000
4. Rehabilitation Programs 1,500,000
5. Developer Interest Costs and Affordable Housing Related Costs Pursuant to the Act 3,500,000
6. Planning, Legal, Engineering, Administrative and Other Professional Service Costs 1,500,000
7. School District Tuition Costs per the TIF Act 1,000,000
8. Public facilities and Taxing District Capital Improvements Pursuant to the Act 1,000,000
9. Training and Workforce Development 1,000,000
TOTAL ESTIMATED PROJECT COSTS $17,500,000
NOTES:
a. All costs are shown in 2019 dollars and do not include additional costs to be incurred in future financing (e.g., bond issuance costs, interest payments on obligations and related expenses) or inflationary increases that may be realized. b. Private redevelopment costs and investments are in addition to the above. c. The total estimated Redevelopment Project Costs shall not be increased by more than 5% after adjustment for inflation from the date of this Redevelopment Plan Amendment. d. TIF revenues may be expended into or from any contiguous Redevelopment Project Area. e. Adjustments may be made in line items within the total, either increasing or decreasing line item costs for redevelopment.”
6
Page 24 of 76
A15. Page 210 of 574
6) Section VI.F. “Redevelopment Project” page 20, “Sources of Funds to Pay Redevelopment Costs Eligible Under Illinois TIF Statute” is amended to add a new sentence at the end of paragraph 3.
“The First Amendment to the RPA base equalized assessed valuation is expected to be the 2018 tax year”.
7) Section VI.H. “Redevelopment Project” page 21, “Most Recent Equalized Assessed Valuation (EAV) of Properties in the Redevelopment Project Area” is amended to read in its entirety as follows:
“The total base year equalized assessed valuation for the original Redevelopment Project Area is $5,978,279. The First Amendment to the Plan and Project EAV is estimated to increase the base year EAV by approximately $5,438,356.”
8) Section VII. “Description and Scheduling of Redevelopment Project” page 22, “Redevelopment Project is amended to add two new paragraphs at the end of the page.
“School Tuition and Capital Costs: The City may fund eligible school district and capital costs pursuant to the requirements of the TIF Act.
“Affordable Housing Funding: The City may fund up to 50% of the cost of construction of new housing units for units to be occupied by low income or very low-income households as defined by Section 3 of the Illinois Affordable Housing Act and pursuant to the requirements of the TIF Act.”
9) Section VI.I. “Redevelopment Project” page 23, Section V, Subsection I entitled “Anticipated Equalized Assessed Valuation (EAV)” is amended to delete the existing subsection and adding the following thereto:
“Upon completion of the anticipated private development of the Redevelopment Project Area over the remaining TIF period, it is estimated that the equalized assessed valuation (EAV) of the property within the amended Redevelopment Project Area will be approximately $20,000,000 to $22,000,000.”
10) Exhibit 1, entitled “Legal Description”, is deleted and is replaced by an amended Exhibit 1 attached hereto and made part hereof.
11) Exhibit 2, entitled “Boundary Map”, is deleted and replaced by an amended Exhibit 2 attached hereto and made part hereof.
12) Exhibit 3, entitled “Existing/Land Use Map”, is deleted and replaced by an amended Exhibit 3 attached hereto and made part hereof.
7
Page 25 of 76
A15. Page 211 of 574
13) Exhibit 4, entitled “Proposed Land Use Map” is deleted and replaced by an amended Exhibit 4 attached hereto and made part hereof.
14) Exhibit 5, entitled “TIF Qualification/Designation Report is amended to add the “First Amendment to the City of Evanston Howard and Ridge TIF” attached hereto and made part hereof.
8
S:\Client Folders\Evanston\Howard Ridge TIF Amendment 2019\Reports\First Amendment to Howard and Ridge TIF District Project 08.15.19.docx
Page 26 of 76
A15. Page 212 of 574
EXHIBIT 1
LEGAL DESCRIPTION, AS AMENDED
Page 27 of 76
A15. Page 213 of 574
LEGAL DESCRIPTION (HOWARD & RIDGE TIF FIRST AMENDMENT):
THAT PART OF THE NORTH HALF OF SECTION 30, TOWNSHIP 41 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT OF INTERSECTION OF THE SOUTH LINE OF THE NORTHWEST QUARTER OF SAID SECTION 30 AND THE WESTERLY RIGHT-OF-WAY LINE OF RIDGE AVENUE EXTENDED SOUTHERLY TO SAID SOUTH LINE; THENCE NORTHWESTERLY ALONG SAID WESTERLY RIGHT-OF-WAY LINE TO THE NORTHEAST CORNER OF LOT 1 IN GRANT AND GRANT’S HOWARD RIDGE SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED DECEMBER 30, 1927 AS DOCUMENT NO. 9884598; THENCE EASTERLY ALONG A STRAIGHT LINE TO THE NORTHWESTERLY CORNER OF LOT 15 IN BLOCK 7 OF BRUMMEL AND CASE HOWARD TERMINAL SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED JANUARY 21, 1916 AS TORRENS DOCUMENT NO. 56151, SAID NORTHWESTERLY CORNER BEING A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF SAID RIDGE AVENUE; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 15 AND LOTS 16 THRU 31 OF SAID BLOCK 7, INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 31; THENCE EASTERLY ALONG A STRAIGHT LING, TO THE NORTHWEST CORNER OF LOT 19 IN BLOCK 8 OF SAID BRUMMEL AND CASE HOWARD TERMINAL SUBDIVISION; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 19 AND LOTS 20 THRU 24 OF SAID BLOCK 8, INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 24, SAID NORTHEAST CORNER ALSO BEING THE NORTHWEST CORNER OF ZEISEL’S CONSOLIDATION ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 18, 1972 AS TORRENS DOCUMENT NO. 2655165; THENCE CONTINUING EASTERLY ALONG THE NORTHERLY LINE OF SAID ZEISEL’S CONSOLIDATION TO THE NORTHEAST CORNER OF SAID ZEISEL’S CONSOLIDATION, SAID NORTHEAST CORNER BEING A POINT ON THE NORTH LINE OF LOT 28 IN SAID BLOCK 8; THENCE CONTINUING EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 28 AND LOTS 29 THRU 41 OF SAID BLOCK 8 INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 41; THENCE EASTERLY ALONG A STRAIGHT LINE, TO THE NORTHWEST CORNER OF LOT 1 IN BLOCK 1 OF NILES HOWARD TERMINAL ADDITION ACCORDING TO THE PLAT THEREOF RECORDED MARCH 22, 1916 AS DOCUMENT NO. 5829212; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 1 AND LOTS 2 THRU 9 OF SAID BLOCK 1, INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 9; THENCE EASTERLY ALONG A STRAIGHT LINE, TO THE NORTHWEST CORNER OF LOT 1 IN BLOCK 2 OF SAID NILES HOWARD TERMINAL ADDITION; THENCE EASTERLY ALONG THE NORTHERLY LINE, OF SAID LOT 1 AND LOTS 2 THRU 9 OF SAID BLOCK 2, INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 9; THENCE EASTERLY ALONG A STRAIGHT LINE, TO THE NORTHWEST CORNER OF LOT 1 IN BLOCK 3 OF SAID NILES HOWARD TERMINAL ADDITION; THENCE EASTERLY ALONG THE NORTHERLY LINE, OF SAID LOT 1 AND LOTS 2 THRU 7 OF SAID BLOCK 3 INCLUSIVE, TO THE NORTHEAST CORNER OF SAID LOT 7, SAID NORTHEAST CORNER BEING A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF THE CHICAGO AND NORTHWESTERN RAILROAD; THENCE SOUTHEASTERLY ALONG SAID WESTERLY RIGHT-OF-WAY LINE, TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF HOWARD STREET; THENCE EASTERLY ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF SAID CHICAGO AND NORTHWESTERN RAILROAD; THENCE NORTHWESTERLY ALONG SAID EASTERLY RIGHT-OF-WAY LINE, TO A POINT ON THE NORTH LINE OF THE SOUTH 6.25 CHAINS OF THE NORTHEAST QUARTER OF SAID SECTION 30; THENCE EASTERLY ALONG SAID NORTHERLY LINE, TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF CHICAGO AVENUE (A.K.A. CLARK STREET); THENCE SOUTHEASTERLY ALONG SAID WESTERLY
Page 28 of 76
A15. Page 214 of 574
EXHIBIT 2
BOUNDARY MAP, AS AMENDED
Page 29 of 76
A15. Page 215 of 574
Page 30 of 76
A15. Page 216 of 574
EXHIBIT 3
EXISTING LAND USE MAP, AS AMENDED
Page 31 of 76
A15. Page 217 of 574
Page 32 of 76
A15. Page 218 of 574
EXHIBIT 4
PROPOSED LAND USE MAP, AS AMENDED
Page 33 of 76
A15. Page 219 of 574
Page 34 of 76
A15. Page 220 of 574
EXHIBIT 5
FIRST AMENDMENT TO THE CITY OF EVANSTON HOWARD AND RIDGE TIF QUALIFICATION/DESIGNATION REPORT
Page 35 of 76
A15. Page 221 of 574 Draft Dated 07/22/19
CITY OF EVANSTON TIF QUALIFICATION/DESIGNATION REPORT FIRST AMENDMENT TO THE HOWARD AND RIDGE TIF DISTRICT
A study to determine whether certain properties could qualify as a conservation area as set forth in the definitions of the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-3, et. seq., as amended and as described herein.
Prepared For: City of Evanston, Illinois
Prepared By: Kane, McKenna and Associates, Inc.
July, 2019
Page 36 of 76
A15. Page 222 of 574
CITY OF EVANSTON TIF QUALIFICATION REPORT FIRST AMENDMENT TO THE HOWARD AND RIDGE TIF DISTRICT
TABLE OF CONTENTS
SECTION TITLE PAGE
I. Introduction and Background 1
II. Qualification Criteria Used 3
III. The Amended Area 7
IV. Methodology of Evaluation 8
V. Qualification of Amended Area and Findings of Eligibility 9
VI. Summary of Findings and Overall Assessment of Qualification 13
EXHIBIT 1
Proposed Amended TIF Boundary Map
EXHIBIT 2
Amended TIF Parcels
Page 37 of 76
A15. Page 223 of 574
I. INTRODUCTION AND BACKGROUND
In the context of planning for the first amendment to the Howard and Ridge TIF District within the boundaries described in the map attached hereto as Exhibit 1 (the “Amended TIF” or the “Amended Area”), the City of Evanston (the “City”) has authorized the study of the proposed amendments to the redevelopment project area within the boundaries described in the map attached hereto (the “RPA” or “TIF District”) to determine whether the amended Area qualifies for consideration as a Tax Increment Financing District (the “TIF”). Kane, McKenna and Associates, Inc. (“KMA”), has agreed to undertake the study of the Amended Area.
The entire RPA as amended is generally bounded on the south by the City boundaries and Howard Street, on the east by the City boundaries and the CTA Red Line, on the north by frontage properties adjacent to Howard Street, and on the west by Ashland Avenue.
The Amended Area in aggregate, exhibits signs of deterioration, lack of community planning, deleterious layout, and obsolescence which has resulted in piecemeal development and recently declining Equalized Assessed Values (EAV). Many structures are functionally obsolete due to age and current market conditions and underutilized buildings are present as well. Site preparation and land assembly may also be necessary in order to reconfigure parcels and improvements for more modern uses and various other commercial/retail/residential mixed uses. The qualification factors discussed within this Report qualify the Amended Area as a “conservation area", as that term is hereinafter defined pursuant to 65 ILCS 5/11-74.4-3 et. seq., as amended.
Several of the properties included in the RPA have evidenced deterioration of structures and site improvements. In order for redevelopment to occur, a coordinated and enhanced effort from the City is needed. It is important for the City to make improvements, where available, in order to preserve the tax base, maintain and increase sales tax revenues, provide supportive amenities for the development with the Amended Area and retain and create jobs. In particular, the underutilized parcels will require coordination relating to potential reuse and redevelopment of these properties within the Amended Area.
The majority of the site improvements within the Amended Area were found to have varying degrees of deterioration. Deterioration was also noted in surface lots, drives, and right of ways. In addition, the total Equalized Assessed Value of the Amended Area has grown at a rate less than the balance of the City for four (4) of the last five (5) years and has lagged Consumer Price Index (CPI) for three (3) of the past five (5) years as well.
It is believed by the City that the Amended Area can be a candidate for redevelopment if the obstacles discussed in this report can be mitigated. Further, it is believed that the use of TIF can mitigate these negative obstacles that currently impede redevelopment and contribute to the overall rejuvenation of the larger Howard Street area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
1
Page 38 of 76
A15. Page 224 of 574
OBJECTIVES
The City seeks to identify workable solutions and to encourage redevelopment of parcels and right-of-ways within the RPA. (Note: this would include the existing RPA and the Amended Area). To achieve these objectives, the City proposes the following guidelines:
o Encourage compatible, well designed development in the RPA with an emphasis on quality site design and building orientation, and site improvements as outlined by City guidelines;
o Encourage job growth within the RPA;
o Coordinate redevelopment in and around the RPA and the adjacent neighborhood; and
o Redevelop properties within the RPA as part of a coordinated effort to revitalize and enhance mixed-use, residential, and commercial properties.
The City has made a determination that it is highly desirable to promote the redevelopment of the Amended Area and the City believes adverse conditions will worsen without an implementation plan for redevelopment. The City intends to create and implement a redevelopment plan in order to restore, stabilize and then increase the community’s tax base.
Given the existing condition of the amended area properties and the required coordination for a variety of uses, the City is favorably disposed toward supporting redevelopment efforts. However, the City has determined that redevelopment should occur through the benefit and guidance of comprehensive economic planning. Through this coordinated effort, the entire RPA is expected to improve. Development barriers, inherent with current conditions, which impede economic growth under existing market standards, are expected to be eliminated.
The City has determined that redevelopment currently planned for the RPA is feasible only with public finance assistance. The creation and utilization of the amendments to the TIF are intended by the City to help provide the assistance required to eliminate conditions detrimental to successful redevelopment.
The use of TIF relies upon induced private redevelopment in the entire RPA creating higher real estate value, which would otherwise decline without such investment, leading to increased property taxes compared to the previous land use (or lack of use). In this way, the existing tax base for all tax districts is protected and a portion of future increased taxes are pledged to attract the needed private investment.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
2
Page 39 of 76
A15. Page 225 of 574
II. QUALIFICATION CRITERIA USED
With the assistance of City representatives, Kane, McKenna and Associates, Inc. examined the Amended Area beginning in May, 2019 and continuing to the date of this report, and reviewed information collected for the area to determine the presence or absence of appropriate qualifying factors listed in the Illinois “Tax Increment Allocation Redevelopment Act”, 65 ILCS 5/11-74.4-1 et. seq., as amended (hereinafter referred to as the “Act”). The relevant sections of the Act are found below.
The Act sets out specific procedures which must be adhered to in designating a redevelopment project area. By definition, a “redevelopment project area” is:
“an area designated by the municipality, which is not less in the aggregate than 1 ½ acres and in respect to which the municipality has made a finding that there exist conditions which cause the area to be classified as an industrial park conservation area or a blighted area or a conservation area, or a combination of both blighted areas and conservation areas.”
Conservation Area
The Act defines a “conservation area” as follows:
“Conservation area” means any improved area within the boundaries of a redevelopment project area located within the territorial limits of the municipality in which 50% or more of the structures in the area have an age of 35 years or more. Such an area is not yet a blighted area but because of a combination of 3 or more of the following factors may be considered as a “conservation area”:
(A) Dilapidation: An advanced state of disrepair or neglect of necessary repairs to the primary structural components of building or improvements in such a combination that a documented building condition analysis determines that major repair is required or the defects are so serious and so extensive that the buildings must be removed.
(B) Obsolescence: The condition or process of falling into disuse. Structures become ill-suited for the original use.
(C) Deterioration: With respect to buildings, defects including, but not limited to, major defects in the secondary building components such as doors, windows, porches, gutters and downspouts and fascia. With respect to surface improvements, that the condition of roadways, alleys, curbs, gutters, sidewalks, off-street parking and surface storage areas evidence deterioration, including, but limited to, surface cracking, crumbling, potholes, depressions, loose paving material and weeds protruding through paved surfaces.
(D) Presence of Structures Below Minimum Code Standards: All structures that do not meet the standards of zoning, subdivision, building, fire and other governmental codes applicable to property, but not including housing and property maintenance codes.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
3
Page 40 of 76
A15. Page 226 of 574
(E) Illegal Use of Individual Structures: The use of structures in violation of applicable federal, State, or local laws, exclusive of those applicable to the presence of structures below minimum code standards.
(F) Excessive Vacancies: The presence of buildings that are unoccupied or under- utilized and that represent an adverse influence on the area because of the frequency, extent or duration of the vacancies.
(G) Lack of Ventilation, Light, or Sanitary Facilities: The absence of adequate ventilation for light or air circulation in spaces or rooms without windows, or that require the removal of dust, odor, gas, smoke or other noxious airborne materials. Inadequate natural light and ventilation means the absence of skylights or windows for interior spaces or rooms and improper window sizes and amounts by room area to window area ratios. Inadequate sanitary facilities refers to the absence or inadequacy of garbage storage and enclosure, bathroom facilities, hot water and kitchens and structural inadequacies preventing ingress and egress to and from all rooms and units within a building.
(H) Inadequate Utilities: Underground and overhead utilities such as storm sewers and storm drainage, sanitary sewers, water lines and gas, telephone and electrical services that are shown to be inadequate. Inadequate utilities are those that are: (i) of insufficient capacity to serve the uses in the redevelopment project area; (ii) deteriorated, antiquated, obsolete or in disrepair; or (iii) lacking within the redevelopment project area.
(I) Excessive Land Coverage and Overcrowding of Structures and Community Facilities: The over-intensive use of property and the crowding of buildings and accessory facilities onto a site. Examples of problem conditions warranting the designation of an area as one exhibiting excessive land coverage are: (i) the presence of buildings either improperly situated on parcels or located on parcels of inadequate size and shape in relation to present-day standards of development for health and safety and (ii) the presence of multiple buildings on a single parcel. For there to be a finding of excessive land coverage, these parcels must exhibit one or more of the following conditions: insufficient provision for light and air within or around buildings, increased threat of spread of fire due to the close proximity of buildings, lack of adequate or proper access to a public right-of-way, lack of reasonably required off-street parking or inadequate provision for loading service.
(J) Deleterious Land-Use or Layout: The existence of incompatible land-use relationships, buildings occupied by inappropriate mixed-uses or uses considered to be noxious, offensive or unsuitable for the surrounding area.
(K) Environmental Clean-Up: The proposed redevelopment project area has incurred Illinois Environmental Protection Agency or United States Environmental Protection Agency remediation costs for, or a study conducted by an independent consultant recognized as having expertise in environmental remediation has determined a need for the clean-up of hazardous waste, hazardous substances or underground storage tanks
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
4
Page 41 of 76
A15. Page 227 of 574
required by State or federal law, provided that the remediation costs constitute a material impediment to the development or redevelopment of the redevelopment project area.
(L) Lack of Community Planning: The proposed redevelopment project area was developed prior to or without the benefit or guidance of a community plan. This means that the development occurred prior to the adoption by the municipality of a comprehensive or other community plan or that the plan was not followed at the time of the area’s development. This factor must be documented by evidence of adverse or incompatible land-use relationships, inadequate street layout, improper subdivision, parcels of inadequate shape and size to meet contemporary development standards or other evidence demonstrating an absence of effective community planning.
(M) The total equalized assessed value of the proposed redevelopment project area has declined for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated, or is increasing at an annual rate that is less than the balance of the municipality for three (3) of the last five (5) calendar years, for which information is available or increasing at an annual rate that is less than the Consumer Price Index for All Urban Consumers published by the United States Department of Labor or successor agency for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated.
(2) If vacant, the sound growth of the redevelopment project area is impaired by a combination of two (2) or more of the following factors, each of which is (i) present, with that presence documented, to a meaningful extent so that a municipality may reasonably find that the factor is clearly present within the intent of the Act and (ii) reasonably distributed throughout the vacant part of the redevelopment project area to which is pertains:
(A) Obsolete platting of vacant land that results in parcels of limited or narrow size or configurations of parcels of irregular size or shape that would be difficult to develop on a planned basis and in a manner compatible with contemporary standards and requirements, or platting that failed to create rights-of-ways for streets or alleys or that created inadequate right-of-way widths for streets, alleys, or other public rights-of-way or that omitted easements for public utilities.
(B) Diversity of ownership of parcels of vacant land sufficient in number to retard or impede the ability to assemble the land for development.
(C) Tax and special assessment delinquencies exist or the property has been the subject of tax sales under the Property Tax Code within the last five (5) years.
(D) Deterioration of structures or site improvements in neighboring areas adjacent to the vacant land.
(E) The area has incurred Illinois Environmental Protection Agency or United States Environmental Protection Agency remediation costs for, or a study conducted by an
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
5
Page 42 of 76
A15. Page 228 of 574
independent consultant recognized as having expertise in environmental remediation has determined a need for the clean-up of hazardous waste, hazardous substances or underground storage tanks required by State or federal law, provided that the remediation costs constitute a material impediment to the development or redevelopment of the redevelopment project area.
(F) The total equalized assessed value of the proposed redevelopment project area has declined for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated or is increasing at an annual rate that is less than the balance of the municipality for three (3) of the last five (5) calendar years for which information is available or is increasing at an annual rate that is less than the Consumer Price Index for All Urban Consumers published by the United States Department of Labor or successor agency for three (3) of the last (5) calendar years prior to the year in which the redevelopment project area is designated.
(3) If vacant, the sound growth of the redevelopment project area is impaired by one of the following factors that (i) is present, with that presence documented to a meaningful extent so that a municipality may reasonably find that the factor is clearly present within the intent of the Act and (ii) is reasonably distributed throughout the vacant part of the redevelopment project area to which is pertains:
(A) The area consists of one or more unused quarries, mines or strip mine ponds.
(B) The area consists of unused rail yards, rail tracks or railroad rights-of-way.
(C) The area, prior to its designation, is subject to chronic flooding that adversely impacts on real property in the area as certified by a registered professional engineer or appropriate regulatory agency.
(D) The area consists of an unused or illegal disposal site containing earth, stone, building debris or similar materials that were removed from construction, demolition, excavation or dredge sites.
(E) Prior to the effective date of this amendatory Act of the 91st General Assembly, the area is not less than fifty (50) nor more than one hundred (100) acres and 75% of which is vacant (notwithstanding that the area has been used for commercial agricultural purposes within five (5) years prior to the designation of the redevelopment project area), and the area meets at least one of the factors itemized in paragraph one (1) of this subsection, the area has been designated as a town or City center by ordinance or comprehensive plan adopted prior to January 1, 1982 and the area has not been developed for that designated purpose.
(F) The area qualified as a conservation area immediately prior to becoming vacant, unless there has been substantial private investment in the immediately surrounding area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
6
Page 43 of 76
A15. Page 229 of 574
III. THE AMENDED AREA
The area of study consists of retail/commercial, improved lots and mixed-use property located within the Amended Area.
The Amended Area includes all parcels in the area generally bounded by Ashland Avenue to the west, the City boundaries to the south, Ridge Avenue to the east, and the frontage parcels north of Howard Street to the north. The Study Area as a whole consists of fifty-three (53) tax parcels.
In evaluating the improved properties within the Amended Area, KMA completed its analysis based on the “conservation area” criteria cited in 65 ILCS 5/11-74-3(a)(1) (the “Conservation Area Definition”). The Conservation Area Definition states that at least fifty percent (50%) or more of the area’s structures must be over thirty-five (35) years in age and there must be three (3) of the thirteen (13) qualification factors contained in the TIF Act must be present for a finding of a conservation area. KMA, with the assistance of City staff, has identified six (6) qualification factors that are distributed throughout the area. Please refer to the table below for more detail.
Maximum Minimum Possible Factors Needed Qualifying Factors Present in the Amended Factors per to Qualify per Area Statute Statute
13 3 6
Obsolescence Deterioration of Structures/Improvements Inadequate Utilities Deleterious Layout Lack of Community Planning Lagging or Declining EAV
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
7
Page 44 of 76
A15. Page 230 of 574
IV. METHODOLOGY OF EVALUATION
In evaluating the Amended Area potential qualification as a redevelopment project area pursuant to the Act, the following methodology was utilized:
1) Site surveys of the Amended Area were undertaken by representatives from KMA. Site surveys were completed for each parcel within the area.
2) Exterior evaluations of structures, noting deterioration or obsolescence, as well as vacancies or other conditions were completed.
3) The area was studied in relation to review of available planning reports, aerial photographs, Sidwell maps, local history (discussions with City staff), and an evaluation of area-wide factors that have affected the area’s development where possible (e.g., lack of community planning, uncoordinated development, etc.). KMA reviewed the area in its entirety. City redevelopment goals and objectives for the area were also reviewed.
4) Individual structures were initially photographed and surveyed only in the context of checking, to the best and reasonable extent available, criteria factors of specific structures on particular parcels. Underutilized portions of the Amended Area were examined within a similar context.
5) The Amended Area was examined to assess the applicability of the different factors required for qualification for TIF designation under the Act. Evaluation was made by reviewing the information and determining how each measured when evaluated against the relevant factors.
Improved land within the Amended Area was examined to determine the applicability of the age factor and the thirteen (13) different conservation area factors for qualification of designation as a redevelopment project area pursuant to the Act.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
8
Page 45 of 76
A15. Page 231 of 574
V. QUALIFICATION OF AMENDED AREA/FINDINGS OF ELIGIBILITY
As a result of KMA’s evaluation of each parcel and the area as a whole within the Amended Area to the RPA, and an analysis of each of the eligibility factors summarized in Section II, the following factors are presented to support qualification of the amendments to the RPA as a “conservation” area.
A. CONSERVATION AREA FACTORS
The Amended Area is found to qualify as a “conservation area” under the Conservation Area Definition.
THRESHOLD FACTOR
Age
Based upon KMA site surveys, City, and Cook County data, seventy-three percent (73%) of the structures in the Amended Area were found to be thirty-five (35) years of age or greater.
OTHER CONSERVATION AREA FACTORS (MUST INCLUDE THREE OR MORE ADDITIONAL FACTORS)
1. Lagging or Declining EAV
Pursuant to the qualifying factors listed in the Act, the total equalized assessed value of proposed RPA has declined for at least three (3) of the last five (5) years prior to the year in which the redevelopment project area is designated or is increasing at an annual rate that is less than the Consumer Price Index (CPI) for All Urban Consumers published by the United States Department of Labor for at least three (3) of the past five (5) calendar years. The following analysis demonstrates that the RPA has satisfied the criteria, in that it has exhibited declining equalized assessed values for four (4) of the past five (5) that have lagged the balance of the City and has lagged the CPI in three (3) of the past five (5) years as well. Please refer to the table below for further detail.
2018 2017 2016 2015 2014 2013 Total EAV for Area $5,438,356 $5,634,720 $5,188,964 $4,769,153 $4,943,112 $4,932,689 Annual Change -3.48% 8.59% 8.80% -3.52% 0.21% Balance of City 2,715,142,558 2,734,425,400 2,665,222,805 2,191,252,372 2,239,626,862 2,196,764,349 EAV Annual Change -0.71% 2.60% 21.63% -2.16% 1.95% CPI 2.40% 2.10% 1.30% 0.10% 1.60%
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
9
Page 46 of 76
A15. Page 232 of 574
2. Deterioration of Structures and Site Improvements
Pursuant to the Act, deterioration can be evidenced in major or secondary building defects. For example, such defects include, but are not limited to, deterioration, building components such as windows, porches, fascia, gutters and doors. In addition, deterioration can also be evidenced with respect to surface improvements in defects that include, but are not limited to, surface cracking, crumbling, potholes, depressions, loose paving material and protrusion of weeds through the paved surfaces of roadways, alleys, curbs, sidewalks, off-street parking and surface storage areas.
Deterioration was present in multiple forms in over eighty percent (80%) of the area’s tax parcels. With respect to surface improvements within the Amended Area, deterioration was found to be prevalent in many roadways, driveways and parking lots. Off-street parking areas also evidence deterioration including, but not limited to, surface cracking, potholes, depressions and loose paving materials.
Various degrees of deterioration were identified for the majority of the parcels within the RPA. According to on-site inspections performed by KMA and documented by site surveys and photographic analysis, some of the site improvements and structures contained the following signs of deterioration:
Cracked and damaged concrete paving surfaces Minor deterioration evidenced in exterior trim or facades; and Presence of potholes and cracked pavement throughout lots with respect to surface improvements
3. Obsolescence. The Act states that obsolescence is the condition or process of falling into disuse or structures that have become ill-suited for their original use. Due to age of the structures and changes in both City regulations and market conditions, obsolescence would be present. As stated above, 73% of the buildings are over 35 years old. The presence of aging structures as well as decline in valuation contribute to the economic obsolescence of the properties building conditions are unattractive, have dated appearances, and are showing signs of deterioration.
The location of the CVS, the bank facility, and office buildings are not optimally located due to needs for parking and buffering to adjacent uses and/or configuration of parcels for larger redevelopment uses consistent with market conditions.
Challenges related to the age and characteristics of existing building inventory, parking, and traffic circulation all impact existing or proposed uses within the Amended Area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
10
Page 47 of 76
A15. Page 233 of 574
Single family home uses located north of the Amended Area lack of buffering to adjacent commercial uses.
4. Deleterious Layout. As noted in Section II, a municipality can make a finding of deleterious layout or land use when there exists either (a) incompatible land-use relationships, (b) buildings occupied by inappropriate mixed-uses or uses considered to be noxious, or (c) uses offensive or unsuitable for the surrounding area.
To the extent that public off-street parking does exist in close proximity to businesses, in many cases that parking is situated in positions with limited visual access to potential patrons. Many stores or commercial uses have not been or cannot be re-oriented to where the customers enter within a few feet of where their vehicles may be parked. Parking in a commercial district must be (or perceived as) simple, trouble-free, and safe. In short, people want to park directly in front of where they want to shop or secure a service. Traditional older, urban shopping or community areas typically cannot offer this as readily as today’s modern retail and service malls and this tends to contribute to the problem of deleterious layout and land use.
Certain buildings located along north of Howard Street exhibit lack of off-street parking as well as limited set backs.
The majority of commercial structures have greater land coverage than would be suitable or acceptable for today’s development standards. There exists a higher proportion of the zero lot line parcels more common in the decades prior to construction of modern shopping area. This condition is manifested most significantly in the lack of on-site parking facilities for many of the commercial structures. Lack of on-site parking acts as a detriment to healthy private sector redevelopment efforts.
Merchants and service providers operating in many of the structures are reliant on restricted on- street parking, to serve the needs of patrons. This puts them at a competitive disadvantage with their counterparts located in locations with additional parking.
Another determinant in the deleterious land use and layout relates to the following incompatible land use relationships:
Ability to manage traffic flow and volumes along Howard Street and ancillary streets. Improvements to parking related signage and circulation. Integration with adjacent uses.
These issues contribute to the deleterious land use and layout condition.
Another issue contributing to deleterious land use and layout relates to inconsistent building setbacks and land uses.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
11
Page 48 of 76
A15. Page 234 of 574
There remains an ongoing issue with instances of single-family homes and residential on the periphery of the area which are located on sites in close proximity to commercial uses. In most situations, there is little buffer between such land uses.
5. Lack of Community Planning. The TIF Act indicates that this factor is present if the proposed redevelopment project area was developed prior to or without the benefit or guidance of a community plan. This means that the development occurred prior to the adoption by the municipality of a comprehensive or other community plan or that the plan was not followed at the time of the area’s development. This factor must be documented by evidence of adverse or incompatible land-use relationships, inadequate street layout, improper subdivision, parcels of inadequate shape and size to meet contemporary development standards or other evidence demonstrating an absence of effective community planning.
Much of the area (almost 50% of the structures) were developed prior to the City’s adoption of its first comprehensive plan in 1972. Structures were developed prior to the current market conditions that have shifted since the date of their initial construction and market demands have changed in relation to older uses.
The characteristics of age and layout contribute to the presence of land use relationships that demonstrate the lack of community planning.
Much of the area development was largely piece meal in nature due to size of parcels and marketplace conditions at the time of initial development. Current conditions that result include poor traffic circulation, inefficient ingress/egress locations, parcel layouts that do not meet modern development standards, and an imbalance of parking which encourages the design of confusing parking lot layouts which are problematic to both motorists and pedestrians. Furthermore, there is conflict between commercial uses and residential uses over time as evidenced by their close proximity and the lack of buffering between these uses.
This is not to say that improvements did not take place over the years, but that they were implemented without the guidance of an updated and modern master plan directed toward long- term benefit for the Amended Area. A lack of such efforts has contributed to the evolution of factors currently present within the Amended Area.
6. Inadequate Utilities. This factor is defined to be present based on “Inadequate utilities are those that are: (i) of insufficient capacity to serve the uses in the redevelopment project area; (ii) deteriorated, antiquated and obsolete or in disrepair; or (iii) lacking within the redevelopment project area.”
The existing water mains and sewer mains are estimated to have been constructed in the 1920s. Water mains are in “poor” condition with sewer mains in “fair” condition per discussions with City staff. Future improvements to both systems are proposed in order to address flow and condition of existing materials. Future redevelopment may also require relocation of utilities depending on location or type of project.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
12
Page 49 of 76
A15. Page 235 of 574
VI. SUMMARY OF FINDINGS AND OVERALL ASSESSMENT OF QUALIFICATION
The following is a summary of relevant qualification findings as it relates to consideration of the Amended Area by the City as a TIF District.
1. The amended and original areas are contiguous and greater than 1½ acres in size.
2. As described herein the Amended Area will qualify as a “conservation area”. Further, the conservation factors present throughout the Amended Area as documented herein, are present to a meaningful extent and are distributed throughout the Amended Area. A more detailed analysis of the qualification findings is outlined in this report.
3. All property in the RPA including the amended and original areas would substantially benefit by the proposed redevelopment project improvements.
4. The sound growth of taxing districts applicable to the area, including the City, has been impaired by the factors found present in the area.
5. The RPA would not be subject to redevelopment without the investment of public funds, including property tax increment.
These findings, in the judgment of KMA, provide the City with sufficient justification to consider the first amendment to the Howard and Ridge TIF District. There is a need to focus redevelopment efforts relating to business attraction and expansion, and mixed-use development in order to improve and preserve the existing tax base and to contribute to the vibrancy of the wider Howard Street area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
13
S:\Client Folders\Evanston\Howard Ridge TIF Amendment 2019\Reports\First Amendment to Howard and Ridge TIF District Eligibility report 10.14.19.docx Page 50 of 76
A15. Page 236 of 574
EXHIBIT 1
AMENDED TIF BOUNDARY MAP
Page 51 of 76
A15. Page 237 of 574
Page 52 of 76
A15. Page 238 of 574
EXHIBIT 2
AMENDED TIF PARCELS
10252260240000 10252260250000 10252260260000 10252260440000 10252260450000 10252260460000 10252260470000 10252260480000 10252260490000 10252260500000 10252260510000 10252260540000 11301150230000 11301150240000 11301150250000 11301150260000 11301150270000 11301150280000 11301150290000 11301150300000 11301150310000 11301150320000 11301150330000 11301150340000 11301150530000 11301150540000 11301150760000 11301220240000 11301220250000 11301220260000 11301220270000 11301220280000 11301220290000 11301220300000 11301220310000 11301220320000 11301220360000 11301220370000 11301220420000 11301220430000
Page 53 of 76
A15. Page 239 of 574
11301220440000 11301220450000 11301220460000 11301220470000 11301220480000 11301220490000 11301220500000 11301220510000 11301220520000 11301220530000 11301220570000 11301220580000 11301220590000
Page 54 of 76
A15. Page 240 of 574
Page 55 of 76
A15. Page 241 of 574 Draft Dated 07/22/19
CITY OF EVANSTON TIF QUALIFICATION/DESIGNATION REPORT FIRST AMENDMENT TO THE HOWARD AND RIDGE TIF DISTRICT
A study to determine whether certain properties could qualify as a conservation area as set forth in the definitions of the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11-74.4-3, et. seq., as amended and as described herein.
Prepared For: City of Evanston, Illinois
Prepared By: Kane, McKenna and Associates, Inc.
July, 2019
Page 56 of 76
A15. Page 242 of 574
CITY OF EVANSTON TIF QUALIFICATION REPORT FIRST AMENDMENT TO THE HOWARD AND RIDGE TIF DISTRICT
TABLE OF CONTENTS
SECTION TITLE PAGE
I. Introduction and Background 1
II. Qualification Criteria Used 3
III. The Amended Area 7
IV. Methodology of Evaluation 8
V. Qualification of Amended Area and Findings of Eligibility 9
VI. Summary of Findings and Overall Assessment of Qualification 13
EXHIBIT 1
Proposed Amended TIF Boundary Map
EXHIBIT 2
Amended TIF Parcels
Page 57 of 76
A15. Page 243 of 574
I. INTRODUCTION AND BACKGROUND
In the context of planning for the first amendment to the Howard and Ridge TIF District within the boundaries described in the map attached hereto as Exhibit 1 (the “Amended TIF” or the “Amended Area”), the City of Evanston (the “City”) has authorized the study of the proposed amendments to the redevelopment project area within the boundaries described in the map attached hereto (the “RPA” or “TIF District”) to determine whether the amended Area qualifies for consideration as a Tax Increment Financing District (the “TIF”). Kane, McKenna and Associates, Inc. (“KMA”), has agreed to undertake the study of the Amended Area.
The entire RPA as amended is generally bounded on the south by the City boundaries and Howard Street, on the east by the City boundaries and the CTA Red Line, on the north by frontage properties adjacent to Howard Street, and on the west by Ashland Avenue.
The Amended Area in aggregate, exhibits signs of deterioration, lack of community planning, deleterious layout, and obsolescence which has resulted in piecemeal development and recently declining Equalized Assessed Values (EAV). Many structures are functionally obsolete due to age and current market conditions and underutilized buildings are present as well. Site preparation and land assembly may also be necessary in order to reconfigure parcels and improvements for more modern uses and various other commercial/retail/residential mixed uses. The qualification factors discussed within this Report qualify the Amended Area as a “conservation area", as that term is hereinafter defined pursuant to 65 ILCS 5/11-74.4-3 et. seq., as amended.
Several of the properties included in the RPA have evidenced deterioration of structures and site improvements. In order for redevelopment to occur, a coordinated and enhanced effort from the City is needed. It is important for the City to make improvements, where available, in order to preserve the tax base, maintain and increase sales tax revenues, provide supportive amenities for the development with the Amended Area and retain and create jobs. In particular, the underutilized parcels will require coordination relating to potential reuse and redevelopment of these properties within the Amended Area.
The majority of the site improvements within the Amended Area were found to have varying degrees of deterioration. Deterioration was also noted in surface lots, drives, and right of ways. In addition, the total Equalized Assessed Value of the Amended Area has grown at a rate less than the balance of the City for four (4) of the last five (5) years and has lagged Consumer Price Index (CPI) for three (3) of the past five (5) years as well.
It is believed by the City that the Amended Area can be a candidate for redevelopment if the obstacles discussed in this report can be mitigated. Further, it is believed that the use of TIF can mitigate these negative obstacles that currently impede redevelopment and contribute to the overall rejuvenation of the larger Howard Street area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
1
Page 58 of 76
A15. Page 244 of 574
OBJECTIVES
The City seeks to identify workable solutions and to encourage redevelopment of parcels and right-of-ways within the RPA. (Note: this would include the existing RPA and the Amended Area). To achieve these objectives, the City proposes the following guidelines:
o Encourage compatible, well designed development in the RPA with an emphasis on quality site design and building orientation, and site improvements as outlined by City guidelines;
o Encourage job growth within the RPA;
o Coordinate redevelopment in and around the RPA and the adjacent neighborhood; and
o Redevelop properties within the RPA as part of a coordinated effort to revitalize and enhance mixed-use, residential, and commercial properties.
The City has made a determination that it is highly desirable to promote the redevelopment of the Amended Area and the City believes adverse conditions will worsen without an implementation plan for redevelopment. The City intends to create and implement a redevelopment plan in order to restore, stabilize and then increase the community’s tax base.
Given the existing condition of the amended area properties and the required coordination for a variety of uses, the City is favorably disposed toward supporting redevelopment efforts. However, the City has determined that redevelopment should occur through the benefit and guidance of comprehensive economic planning. Through this coordinated effort, the entire RPA is expected to improve. Development barriers, inherent with current conditions, which impede economic growth under existing market standards, are expected to be eliminated.
The City has determined that redevelopment currently planned for the RPA is feasible only with public finance assistance. The creation and utilization of the amendments to the TIF are intended by the City to help provide the assistance required to eliminate conditions detrimental to successful redevelopment.
The use of TIF relies upon induced private redevelopment in the entire RPA creating higher real estate value, which would otherwise decline without such investment, leading to increased property taxes compared to the previous land use (or lack of use). In this way, the existing tax base for all tax districts is protected and a portion of future increased taxes are pledged to attract the needed private investment.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
2
Page 59 of 76
A15. Page 245 of 574
II. QUALIFICATION CRITERIA USED
With the assistance of City representatives, Kane, McKenna and Associates, Inc. examined the Amended Area beginning in May, 2019 and continuing to the date of this report, and reviewed information collected for the area to determine the presence or absence of appropriate qualifying factors listed in the Illinois “Tax Increment Allocation Redevelopment Act”, 65 ILCS 5/11-74.4-1 et. seq., as amended (hereinafter referred to as the “Act”). The relevant sections of the Act are found below.
The Act sets out specific procedures which must be adhered to in designating a redevelopment project area. By definition, a “redevelopment project area” is:
“an area designated by the municipality, which is not less in the aggregate than 1 ½ acres and in respect to which the municipality has made a finding that there exist conditions which cause the area to be classified as an industrial park conservation area or a blighted area or a conservation area, or a combination of both blighted areas and conservation areas.”
Conservation Area
The Act defines a “conservation area” as follows:
“Conservation area” means any improved area within the boundaries of a redevelopment project area located within the territorial limits of the municipality in which 50% or more of the structures in the area have an age of 35 years or more. Such an area is not yet a blighted area but because of a combination of 3 or more of the following factors may be considered as a “conservation area”:
(A) Dilapidation: An advanced state of disrepair or neglect of necessary repairs to the primary structural components of building or improvements in such a combination that a documented building condition analysis determines that major repair is required or the defects are so serious and so extensive that the buildings must be removed.
(B) Obsolescence: The condition or process of falling into disuse. Structures become ill-suited for the original use.
(C) Deterioration: With respect to buildings, defects including, but not limited to, major defects in the secondary building components such as doors, windows, porches, gutters and downspouts and fascia. With respect to surface improvements, that the condition of roadways, alleys, curbs, gutters, sidewalks, off-street parking and surface storage areas evidence deterioration, including, but limited to, surface cracking, crumbling, potholes, depressions, loose paving material and weeds protruding through paved surfaces.
(D) Presence of Structures Below Minimum Code Standards: All structures that do not meet the standards of zoning, subdivision, building, fire and other governmental codes applicable to property, but not including housing and property maintenance codes.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
3
Page 60 of 76
A15. Page 246 of 574
(E) Illegal Use of Individual Structures: The use of structures in violation of applicable federal, State, or local laws, exclusive of those applicable to the presence of structures below minimum code standards.
(F) Excessive Vacancies: The presence of buildings that are unoccupied or under- utilized and that represent an adverse influence on the area because of the frequency, extent or duration of the vacancies.
(G) Lack of Ventilation, Light, or Sanitary Facilities: The absence of adequate ventilation for light or air circulation in spaces or rooms without windows, or that require the removal of dust, odor, gas, smoke or other noxious airborne materials. Inadequate natural light and ventilation means the absence of skylights or windows for interior spaces or rooms and improper window sizes and amounts by room area to window area ratios. Inadequate sanitary facilities refers to the absence or inadequacy of garbage storage and enclosure, bathroom facilities, hot water and kitchens and structural inadequacies preventing ingress and egress to and from all rooms and units within a building.
(H) Inadequate Utilities: Underground and overhead utilities such as storm sewers and storm drainage, sanitary sewers, water lines and gas, telephone and electrical services that are shown to be inadequate. Inadequate utilities are those that are: (i) of insufficient capacity to serve the uses in the redevelopment project area; (ii) deteriorated, antiquated, obsolete or in disrepair; or (iii) lacking within the redevelopment project area.
(I) Excessive Land Coverage and Overcrowding of Structures and Community Facilities: The over-intensive use of property and the crowding of buildings and accessory facilities onto a site. Examples of problem conditions warranting the designation of an area as one exhibiting excessive land coverage are: (i) the presence of buildings either improperly situated on parcels or located on parcels of inadequate size and shape in relation to present-day standards of development for health and safety and (ii) the presence of multiple buildings on a single parcel. For there to be a finding of excessive land coverage, these parcels must exhibit one or more of the following conditions: insufficient provision for light and air within or around buildings, increased threat of spread of fire due to the close proximity of buildings, lack of adequate or proper access to a public right-of-way, lack of reasonably required off-street parking or inadequate provision for loading service.
(J) Deleterious Land-Use or Layout: The existence of incompatible land-use relationships, buildings occupied by inappropriate mixed-uses or uses considered to be noxious, offensive or unsuitable for the surrounding area.
(K) Environmental Clean-Up: The proposed redevelopment project area has incurred Illinois Environmental Protection Agency or United States Environmental Protection Agency remediation costs for, or a study conducted by an independent consultant recognized as having expertise in environmental remediation has determined a need for the clean-up of hazardous waste, hazardous substances or underground storage tanks
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
4
Page 61 of 76
A15. Page 247 of 574
required by State or federal law, provided that the remediation costs constitute a material impediment to the development or redevelopment of the redevelopment project area.
(L) Lack of Community Planning: The proposed redevelopment project area was developed prior to or without the benefit or guidance of a community plan. This means that the development occurred prior to the adoption by the municipality of a comprehensive or other community plan or that the plan was not followed at the time of the area’s development. This factor must be documented by evidence of adverse or incompatible land-use relationships, inadequate street layout, improper subdivision, parcels of inadequate shape and size to meet contemporary development standards or other evidence demonstrating an absence of effective community planning.
(M) The total equalized assessed value of the proposed redevelopment project area has declined for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated, or is increasing at an annual rate that is less than the balance of the municipality for three (3) of the last five (5) calendar years, for which information is available or increasing at an annual rate that is less than the Consumer Price Index for All Urban Consumers published by the United States Department of Labor or successor agency for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated.
(2) If vacant, the sound growth of the redevelopment project area is impaired by a combination of two (2) or more of the following factors, each of which is (i) present, with that presence documented, to a meaningful extent so that a municipality may reasonably find that the factor is clearly present within the intent of the Act and (ii) reasonably distributed throughout the vacant part of the redevelopment project area to which is pertains:
(A) Obsolete platting of vacant land that results in parcels of limited or narrow size or configurations of parcels of irregular size or shape that would be difficult to develop on a planned basis and in a manner compatible with contemporary standards and requirements, or platting that failed to create rights-of-ways for streets or alleys or that created inadequate right-of-way widths for streets, alleys, or other public rights-of-way or that omitted easements for public utilities.
(B) Diversity of ownership of parcels of vacant land sufficient in number to retard or impede the ability to assemble the land for development.
(C) Tax and special assessment delinquencies exist or the property has been the subject of tax sales under the Property Tax Code within the last five (5) years.
(D) Deterioration of structures or site improvements in neighboring areas adjacent to the vacant land.
(E) The area has incurred Illinois Environmental Protection Agency or United States Environmental Protection Agency remediation costs for, or a study conducted by an
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
5
Page 62 of 76
A15. Page 248 of 574
independent consultant recognized as having expertise in environmental remediation has determined a need for the clean-up of hazardous waste, hazardous substances or underground storage tanks required by State or federal law, provided that the remediation costs constitute a material impediment to the development or redevelopment of the redevelopment project area.
(F) The total equalized assessed value of the proposed redevelopment project area has declined for three (3) of the last five (5) calendar years prior to the year in which the redevelopment project area is designated or is increasing at an annual rate that is less than the balance of the municipality for three (3) of the last five (5) calendar years for which information is available or is increasing at an annual rate that is less than the Consumer Price Index for All Urban Consumers published by the United States Department of Labor or successor agency for three (3) of the last (5) calendar years prior to the year in which the redevelopment project area is designated.
(3) If vacant, the sound growth of the redevelopment project area is impaired by one of the following factors that (i) is present, with that presence documented to a meaningful extent so that a municipality may reasonably find that the factor is clearly present within the intent of the Act and (ii) is reasonably distributed throughout the vacant part of the redevelopment project area to which is pertains:
(A) The area consists of one or more unused quarries, mines or strip mine ponds.
(B) The area consists of unused rail yards, rail tracks or railroad rights-of-way.
(C) The area, prior to its designation, is subject to chronic flooding that adversely impacts on real property in the area as certified by a registered professional engineer or appropriate regulatory agency.
(D) The area consists of an unused or illegal disposal site containing earth, stone, building debris or similar materials that were removed from construction, demolition, excavation or dredge sites.
(E) Prior to the effective date of this amendatory Act of the 91st General Assembly, the area is not less than fifty (50) nor more than one hundred (100) acres and 75% of which is vacant (notwithstanding that the area has been used for commercial agricultural purposes within five (5) years prior to the designation of the redevelopment project area), and the area meets at least one of the factors itemized in paragraph one (1) of this subsection, the area has been designated as a town or City center by ordinance or comprehensive plan adopted prior to January 1, 1982 and the area has not been developed for that designated purpose.
(F) The area qualified as a conservation area immediately prior to becoming vacant, unless there has been substantial private investment in the immediately surrounding area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
6
Page 63 of 76
A15. Page 249 of 574
III. THE AMENDED AREA
The area of study consists of retail/commercial, improved lots and mixed-use property located within the Amended Area.
The Amended Area includes all parcels in the area generally bounded by Ashland Avenue to the west, the City boundaries to the south, Ridge Avenue to the east, and the frontage parcels north of Howard Street to the north. The Study Area as a whole consists of fifty-three (53) tax parcels.
In evaluating the improved properties within the Amended Area, KMA completed its analysis based on the “conservation area” criteria cited in 65 ILCS 5/11-74-3(a)(1) (the “Conservation Area Definition”). The Conservation Area Definition states that at least fifty percent (50%) or more of the area’s structures must be over thirty-five (35) years in age and there must be three (3) of the thirteen (13) qualification factors contained in the TIF Act must be present for a finding of a conservation area. KMA, with the assistance of City staff, has identified six (6) qualification factors that are distributed throughout the area. Please refer to the table below for more detail.
Maximum Minimum Possible Factors Needed Qualifying Factors Present in the Amended Factors per to Qualify per Area Statute Statute
13 3 6
Obsolescence Deterioration of Structures/Improvements Inadequate Utilities Deleterious Layout Lack of Community Planning Lagging or Declining EAV
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
7
Page 64 of 76
A15. Page 250 of 574
IV. METHODOLOGY OF EVALUATION
In evaluating the Amended Area potential qualification as a redevelopment project area pursuant to the Act, the following methodology was utilized:
1) Site surveys of the Amended Area were undertaken by representatives from KMA. Site surveys were completed for each parcel within the area.
2) Exterior evaluations of structures, noting deterioration or obsolescence, as well as vacancies or other conditions were completed.
3) The area was studied in relation to review of available planning reports, aerial photographs, Sidwell maps, local history (discussions with City staff), and an evaluation of area-wide factors that have affected the area’s development where possible (e.g., lack of community planning, uncoordinated development, etc.). KMA reviewed the area in its entirety. City redevelopment goals and objectives for the area were also reviewed.
4) Individual structures were initially photographed and surveyed only in the context of checking, to the best and reasonable extent available, criteria factors of specific structures on particular parcels. Underutilized portions of the Amended Area were examined within a similar context.
5) The Amended Area was examined to assess the applicability of the different factors required for qualification for TIF designation under the Act. Evaluation was made by reviewing the information and determining how each measured when evaluated against the relevant factors.
Improved land within the Amended Area was examined to determine the applicability of the age factor and the thirteen (13) different conservation area factors for qualification of designation as a redevelopment project area pursuant to the Act.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
8
Page 65 of 76
A15. Page 251 of 574
V. QUALIFICATION OF AMENDED AREA/FINDINGS OF ELIGIBILITY
As a result of KMA’s evaluation of each parcel and the area as a whole within the Amended Area to the RPA, and an analysis of each of the eligibility factors summarized in Section II, the following factors are presented to support qualification of the amendments to the RPA as a “conservation” area.
A. CONSERVATION AREA FACTORS
The Amended Area is found to qualify as a “conservation area” under the Conservation Area Definition.
THRESHOLD FACTOR
Age
Based upon KMA site surveys, City, and Cook County data, seventy-three percent (73%) of the structures in the Amended Area were found to be thirty-five (35) years of age or greater.
OTHER CONSERVATION AREA FACTORS (MUST INCLUDE THREE OR MORE ADDITIONAL FACTORS)
1. Lagging or Declining EAV
Pursuant to the qualifying factors listed in the Act, the total equalized assessed value of proposed RPA has declined for at least three (3) of the last five (5) years prior to the year in which the redevelopment project area is designated or is increasing at an annual rate that is less than the Consumer Price Index (CPI) for All Urban Consumers published by the United States Department of Labor for at least three (3) of the past five (5) calendar years. The following analysis demonstrates that the RPA has satisfied the criteria, in that it has exhibited declining equalized assessed values for four (4) of the past five (5) that have lagged the balance of the City and has lagged the CPI in three (3) of the past five (5) years as well. Please refer to the table below for further detail.
2018 2017 2016 2015 2014 2013 Total EAV for Area $5,438,356 $5,634,720 $5,188,964 $4,769,153 $4,943,112 $4,932,689 Annual Change -3.48% 8.59% 8.80% -3.52% 0.21% Balance of City 2,715,142,558 2,734,425,400 2,665,222,805 2,191,252,372 2,239,626,862 2,196,764,349 EAV Annual Change -0.71% 2.60% 21.63% -2.16% 1.95% CPI 2.40% 2.10% 1.30% 0.10% 1.60%
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
9
Page 66 of 76
A15. Page 252 of 574
2. Deterioration of Structures and Site Improvements
Pursuant to the Act, deterioration can be evidenced in major or secondary building defects. For example, such defects include, but are not limited to, deterioration, building components such as windows, porches, fascia, gutters and doors. In addition, deterioration can also be evidenced with respect to surface improvements in defects that include, but are not limited to, surface cracking, crumbling, potholes, depressions, loose paving material and protrusion of weeds through the paved surfaces of roadways, alleys, curbs, sidewalks, off-street parking and surface storage areas.
Deterioration was present in multiple forms in over eighty percent (80%) of the area’s tax parcels. With respect to surface improvements within the Amended Area, deterioration was found to be prevalent in many roadways, driveways and parking lots. Off-street parking areas also evidence deterioration including, but not limited to, surface cracking, potholes, depressions and loose paving materials.
Various degrees of deterioration were identified for the majority of the parcels within the RPA. According to on-site inspections performed by KMA and documented by site surveys and photographic analysis, some of the site improvements and structures contained the following signs of deterioration:
Cracked and damaged concrete paving surfaces Minor deterioration evidenced in exterior trim or facades; and Presence of potholes and cracked pavement throughout lots with respect to surface improvements
3. Obsolescence. The Act states that obsolescence is the condition or process of falling into disuse or structures that have become ill-suited for their original use. Due to age of the structures and changes in both City regulations and market conditions, obsolescence would be present. As stated above, 73% of the buildings are over 35 years old. The presence of aging structures as well as decline in valuation contribute to the economic obsolescence of the properties building conditions are unattractive, have dated appearances, and are showing signs of deterioration.
The location of the CVS, the bank facility, and office buildings are not optimally located due to needs for parking and buffering to adjacent uses and/or configuration of parcels for larger redevelopment uses consistent with market conditions.
Challenges related to the age and characteristics of existing building inventory, parking, and traffic circulation all impact existing or proposed uses within the Amended Area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
10
Page 67 of 76
A15. Page 253 of 574
Single family home uses located north of the Amended Area lack of buffering to adjacent commercial uses.
4. Deleterious Layout. As noted in Section II, a municipality can make a finding of deleterious layout or land use when there exists either (a) incompatible land-use relationships, (b) buildings occupied by inappropriate mixed-uses or uses considered to be noxious, or (c) uses offensive or unsuitable for the surrounding area.
To the extent that public off-street parking does exist in close proximity to businesses, in many cases that parking is situated in positions with limited visual access to potential patrons. Many stores or commercial uses have not been or cannot be re-oriented to where the customers enter within a few feet of where their vehicles may be parked. Parking in a commercial district must be (or perceived as) simple, trouble-free, and safe. In short, people want to park directly in front of where they want to shop or secure a service. Traditional older, urban shopping or community areas typically cannot offer this as readily as today’s modern retail and service malls and this tends to contribute to the problem of deleterious layout and land use.
Certain buildings located along north of Howard Street exhibit lack of off-street parking as well as limited set backs.
The majority of commercial structures have greater land coverage than would be suitable or acceptable for today’s development standards. There exists a higher proportion of the zero lot line parcels more common in the decades prior to construction of modern shopping area. This condition is manifested most significantly in the lack of on-site parking facilities for many of the commercial structures. Lack of on-site parking acts as a detriment to healthy private sector redevelopment efforts.
Merchants and service providers operating in many of the structures are reliant on restricted on- street parking, to serve the needs of patrons. This puts them at a competitive disadvantage with their counterparts located in locations with additional parking.
Another determinant in the deleterious land use and layout relates to the following incompatible land use relationships:
Ability to manage traffic flow and volumes along Howard Street and ancillary streets. Improvements to parking related signage and circulation. Integration with adjacent uses.
These issues contribute to the deleterious land use and layout condition.
Another issue contributing to deleterious land use and layout relates to inconsistent building setbacks and land uses.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
11
Page 68 of 76
A15. Page 254 of 574
There remains an ongoing issue with instances of single-family homes and residential on the periphery of the area which are located on sites in close proximity to commercial uses. In most situations, there is little buffer between such land uses.
5. Lack of Community Planning. The TIF Act indicates that this factor is present if the proposed redevelopment project area was developed prior to or without the benefit or guidance of a community plan. This means that the development occurred prior to the adoption by the municipality of a comprehensive or other community plan or that the plan was not followed at the time of the area’s development. This factor must be documented by evidence of adverse or incompatible land-use relationships, inadequate street layout, improper subdivision, parcels of inadequate shape and size to meet contemporary development standards or other evidence demonstrating an absence of effective community planning.
Much of the area (almost 50% of the structures) were developed prior to the City’s adoption of its first comprehensive plan in 1972. Structures were developed prior to the current market conditions that have shifted since the date of their initial construction and market demands have changed in relation to older uses.
The characteristics of age and layout contribute to the presence of land use relationships that demonstrate the lack of community planning.
Much of the area development was largely piece meal in nature due to size of parcels and marketplace conditions at the time of initial development. Current conditions that result include poor traffic circulation, inefficient ingress/egress locations, parcel layouts that do not meet modern development standards, and an imbalance of parking which encourages the design of confusing parking lot layouts which are problematic to both motorists and pedestrians. Furthermore, there is conflict between commercial uses and residential uses over time as evidenced by their close proximity and the lack of buffering between these uses.
This is not to say that improvements did not take place over the years, but that they were implemented without the guidance of an updated and modern master plan directed toward long- term benefit for the Amended Area. A lack of such efforts has contributed to the evolution of factors currently present within the Amended Area.
6. Inadequate Utilities. This factor is defined to be present based on “Inadequate utilities are those that are: (i) of insufficient capacity to serve the uses in the redevelopment project area; (ii) deteriorated, antiquated and obsolete or in disrepair; or (iii) lacking within the redevelopment project area.”
The existing water mains and sewer mains are estimated to have been constructed in the 1920s. Water mains are in “poor” condition with sewer mains in “fair” condition per discussions with City staff. Future improvements to both systems are proposed in order to address flow and condition of existing materials. Future redevelopment may also require relocation of utilities depending on location or type of project.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
12
Page 69 of 76
A15. Page 255 of 574
VI. SUMMARY OF FINDINGS AND OVERALL ASSESSMENT OF QUALIFICATION
The following is a summary of relevant qualification findings as it relates to consideration of the Amended Area by the City as a TIF District.
1. The amended and original areas are contiguous and greater than 1½ acres in size.
2. As described herein the Amended Area will qualify as a “conservation area”. Further, the conservation factors present throughout the Amended Area as documented herein, are present to a meaningful extent and are distributed throughout the Amended Area. A more detailed analysis of the qualification findings is outlined in this report.
3. All property in the RPA including the amended and original areas would substantially benefit by the proposed redevelopment project improvements.
4. The sound growth of taxing districts applicable to the area, including the City, has been impaired by the factors found present in the area.
5. The RPA would not be subject to redevelopment without the investment of public funds, including property tax increment.
These findings, in the judgment of KMA, provide the City with sufficient justification to consider the first amendment to the Howard and Ridge TIF District. There is a need to focus redevelopment efforts relating to business attraction and expansion, and mixed-use development in order to improve and preserve the existing tax base and to contribute to the vibrancy of the wider Howard Street area.
First Amendment to the Howard and Ridge TIF Eligibility Report City of Evanston, Illinois
13
S:\Client Folders\Evanston\Howard Ridge TIF Amendment 2019\Reports\First Amendment to Howard and Ridge TIF District Eligibility report 10.14.19.docx Page 70 of 76
A15. Page 256 of 574
EXHIBIT 1
AMENDED TIF BOUNDARY MAP
Page 71 of 76
A15. Page 257 of 574
Page 72 of 76
A15. Page 258 of 574
EXHIBIT 2
AMENDED TIF PARCELS
10252260240000 10252260250000 10252260260000 10252260440000 10252260450000 10252260460000 10252260470000 10252260480000 10252260490000 10252260500000 10252260510000 10252260540000 11301150230000 11301150240000 11301150250000 11301150260000 11301150270000 11301150280000 11301150290000 11301150300000 11301150310000 11301150320000 11301150330000 11301150340000 11301150530000 11301150540000 11301150760000 11301220240000 11301220250000 11301220260000 11301220270000 11301220280000 11301220290000 11301220300000 11301220310000 11301220320000 11301220360000 11301220370000 11301220420000 11301220430000
Page 73 of 76
A15. Page 259 of 574
11301220440000 11301220450000 11301220460000 11301220470000 11301220480000 11301220490000 11301220500000 11301220510000 11301220520000 11301220530000 11301220570000 11301220580000 11301220590000
Page 74 of 76
A15. Page 260 of 574
Page 75 of 76
A15. Page 261 of 574
Page 262 of 574 of 262 Page A15. Page 76 of 76 of 76 Page
1507 1 5 1 1 0
3 4 1508 4 6 0 1501 1500 1501
Ashland Ave 1 1 1 1 0 4 3 3 1 9
1428 1 3
1425 1427 1 3 1424 1425 9
1421 1420 1421 1420 1 4
1418 1
7 1418 1414 1416 1415 1413 1412 1413 1408 1411 1 3 5
5 1406 1409
1404 1407
1400 D 1403
o
1332 b 1333
s
o
1330 n 1331
S
1328 t 1327 1326 1325 1322 1324 1323
1 1320 1321 3 2 5 1316 1319 1314 1315
1312 1313 1 1 2 1 1 1 1 0 2 4 3 0 8 2 8 1 1 0 2 6 0
Asbury Ave 1 0 1 1 1 3 3 5 1 1 7 4 3 1 9 1 3 1 1 2
1216 1 5 1214 1 2 1
0 1211
1211 1 2 0 1
6 1207 2 0 1 1 1 2 4 0 6
0 1201
Barton Ave 1
1126 3
1125 5
1123 1124 1123 1120
1118 1121
1114 1115 1 1 1
7 1110 1111
1106 1107
1104 1105
1 1100 1035 1 0 1 1032 1033
1028 1029
1029 D o
1024 b 1027 s
1 o
0 n 1 1023 5
1022 S
1018 t 1019
1014 1017
1012 1015
1008 1011
1006 1007 1004 1003 1002 9 9
999 6 6 3 1
R C E T B P 962 a x u r a i t o x 9 9 i i y
i 960 s l l
p 5 5 d r
P 959 t o o 7 9 o i i 958 n n a f a s 1
g g r E 4 d e 957 c 1 1 956
0 d T v S e 3 3 1 1 a
I 2 6 l 1 1 e T 955 F 952 n 4 6 c I
s F D t i t 950
o
o 953 i 5 s n n
t
r 951
i
c R i d g e
A v t e 1 1 1 4 4 1 1 1 3 1 5 2 2 3 5 9 7 1 1 1 3 3 1 9 7 3 833 3 1
0 824
1 831 829
8 824 2
822 823 1 821 820 820 819 819 H 814 816
o 815 812 815 814
w a
r 813
8 812 d
1
0 811 810
S t 807 809 808 807 806 804
804 803 1 1 1 1 1 1 3 3 3 3 1 1 4 4 0 2 4 6 1 2 802 801 802 2 4 8 0 800 800
Elmwood Ave 1 1
751 1 2 9 1 744 1 1
749 2 3 747 742 9 1 745 7 7 3 743 740 3 7 741 9 738 739 7 736 7 3 3 5 3 732 7 7 2 730 3 9 729 1
728 D
727 o
725 1/2 726 b 727 725 s 723 o 723
724 n
721 1/2
721 720 S 721 t 7 7 7 1 1 716 1 8 7 6
7 714 715 7 719 1 1 4 2 713 712 711 709 710 708 711 707 709 1 1 1 1 1 1 1 1 1 3 3 4 4 4 3 3 2 2 1 1 2 6 0 4 6 8 1 0 6 8
705 1 2 1 2 0 703 0 701 Custer Ave 1 1 1 3 1 1 1 1 1 1 1 1 1 1 1 1 1 1 6 1 4 4 4 4 5 2 2 3 3 2 2 3 3 3 4 5 3 5 7 9 1 1 3 7 9 5 7 1 3 5 1 1 1 7 1
633 1 1 1 2 2
631 6 629 1/2 4 6 629 1 1 1 1 1 627 1/2 1 1 1 1 1 1 1 4 4 4 4 5 1 2 2 3
627 3 3 4 2 4 6 8 0 4 0 2 0
625 1/2 4 6 0 625 623 1/2 623
Callan Ave 1 1 1 1 1 3 3 1 1 2 2 1 1 621 1 3 135 2 7 1 3 141 4 4 5 3 9 1
619 2 1 1 7
137 139 4 4 5 7 1 1 1 1 1 1 1 1 3 1 2 2 3 4 4 3 6 6 0 6 0 4 6 609 8 1 607 1 1 1 1 1 1 1 3 4 1 2 2 3 4 4 4 0 4 2 4 2 2 8
Clyde Ave 1 1 1 0 0 1 1 7 1 1 1 1 1 1 1 1 1 2 2 3 3 3 4
565 5 3 5 3 5 7 1 1 1 1 1 1 2 2 3 5 7 1 7 1 5 5 1 1 9 1 4 0 1 3 2 1
1
3
2
0 C
8 h
i
c a
g
o
A v e
525
523
519 4 1 5
333 339 331 337 329 335 327 317 315 321 313 319 311 309 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Katheryn Boden, Economic Development Specialist CC: Johanna Leonard, Director of Community Development; Paul Zalmezak, Economic Development Manager Subject: Ordinance 118-O-19, Designating the First Amended Howard and Ridge Redevelopment Project Area Pursuant to the Tax Increment Allocation Redevelopment Act Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 118-O-19, designating the First Amended Howard and Ridge Redevelopment Project Area Pursuant to the Tax Increment Allocation Redevelopment Act.
Council Action: For Introduction
Summary: The City Council approved the creation of the Howard Ridge Tax Increment Financing (TIF) district on January 26, 2004. The TIF district will expire with the final collection of revenues on December 31, 2027. The existing boundary, shaded in the attached map, runs along the southern boundary of Evanston from Ridge Avenue on the west to the CTA tracks on the east. Staff is recommending approval of First Amendment to the TIF which will result in the expansion of the Howard Ridge TIF District.
The expanded area extends west of Ridge Avenue to 1415 Howard (just east of Ashland Avenue) for the provide which potential underutilized several incorporating properties redevelopment redevelopment during the remaining life of the TIF district. Immediate opportunities include the vacant Dairy Queen (911 Howard St.) site, which is under contract for a proposed affordable senior housing development by Evergreen Real Estate Group and CJE Senior Life. The map of the proposed amended TIF district is also attached.
A16. Page 263 of 574 Recognizing this opportunity, on March 28, 2019 the City Council authorized the approval of a contract with Kane McKenna & Associates (KMA) to determine if the proposed expansion area qualifies under State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment Act.
Working with city staff, KMA completed the attached First Amendment to the Howard Ridge TIF Redevelopment Plan & Project and the TIF Qualification & Designation reports. For several months, KMA conducted the onsite analysis of the properties to determine the TIF physical qualification factors and studied the economic data provided by Cook County and city staff. KMA also assisted staff convene the Joint Review Board (JRB) meeting on September 25, 2019 and the public hearing on October 28, 2019, as well as the associated newspaper notices and public mailings.
The qualification studies, reports, public notices, mailings, JRB meeting, and public hearing process follow the guidelines outlined by the State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment Act. The final step in the process is the City Council agreeing to amend the TIF by adopting the three ordinances, attached.
Additional information aboutrdinances, the existing Howard Ridge TIF district, o redevelopment plan, and annual reports can be found at the following link: https://www.cityofevanston.org/business/tif-districts.
Legislative History: On September 25, 2019 the Joint Review Board unanimously approved an advisory, non- binding recommendation to the City Council. The City Council fulfilled the obligations of the TIF Act by convening a public hearing on October 28, 2019.
Attachments: 118-O-19 Ordinance Designating First Amended Howard and Ridge TIF District
Page 2 of 9
A16. Page 264 of 574 9/21/2019
118-O-19
AN ORDINANCE OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, DESIGNATING THE FIRST AMENDED HOWARD AND RIDGE REDEVELOPMENT PROJECT AREA PURSUANT TO THE TAX INCREMENT ALLOCATION REDEVELOPMENT ACT
WHEREAS, it is desirable and in the best interest of the citizens of the
City of Evanston, Cook County, Illinois (the “City”), for the City to implement tax
increment allocation financing pursuant to the Tax Increment Allocation Redevelopment
Act, Division 74.4 of Article 11 of the Illinois Municipal Code, as amended (the “Act”), for
a proposed amended redevelopment plan and redevelopment project (“First Amended
Redevelopment Plan and Project”) within the municipal boundaries of the City and
within a proposed amended redevelopment project area (“First Amended
Redevelopment Area”) described in Section 1 of this Ordinance; and
WHEREAS, the Corporate Authorities have heretofore by ordinance
approved the First Amended Redevelopment Plan and Project, which First Amended
Redevelopment Plan and Project were identified in such ordinance and were the
subject, along with the First Redevelopment Project Area designation hereinafter made,
of a public hearing held on October 28, 2019, and it is now necessary and desirable to
designate the First Amended Redevelopment Area as a redevelopment project area
pursuant to the Act.
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the
City of Evanston, Cook County, Illinois, as follows:
Page 3 of 9
A16. Page 265 of 574 SECTION 1. Area Designated. That the First Amended Redevelopment
Area, as legally described in EXHIBIT A. attached hereto and incorporated herein as if
set out in full by this reference, is hereby designated as a redevelopment project area
pursuant to Section 11-74.4-4 of the Act. The general street location for the First
Amended Redevelopment Area is described in EXHIBIT B attached hereto and
incorporated herein as if set out in full by this reference. The map of the Area is
depicted on EXHIBIT C attached hereto and incorporated herein as if set out in full by
this reference.
SECTION 2. Invalidity of Any Section. That if any section, paragraph, or
provision of this Ordinance shall be held to be invalid or unenforceable for any reason,
the invalidity or unenforceability of such section, paragraph, or provision shall not affect
any of the remaining provisions of this Ordinance.
SECTION 3. Superseder and Effective Date. That all ordinances,
resolutions, motions, or orders in conflict herewith shall be, and the same hereby are,
repealed to the extent of such conflict, and this Ordinance shall be in full force and
effect immediately upon its passage by the Corporate Authorities and approval as
provided by law.
AYES ______NAYS ______ABSENT ______
Page 4 of 9
A16. Page 266 of 574 Introduced:______, 2019 Approved:
Adopted:______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Page 5 of 9
A16. Page 267 of 574 EXHIBIT A
LEGAL DESCRIPTION FIRST AMENDED REDEVELOPMENT PROJECT AREA
Page 6 of 9
A16. Page 268 of 574 EXHIBIT B
The Redevelopment Project Area (the "RPA") RPA is generally bounded on the north by various parcels that front Howard Street and Chicago Avenue, on the east by the City of Evanston's (the "City") boundaries and the Chicago Transit Authority (CTA) Red Line, on the south by City boundaries and on the west by Ashland Avenue. The RPA contains mixed residential uses, retail/commercial properties and institutional uses.
Page 7 of 9
A16. Page 269 of 574 EXHIBIT C
MAP OF FIRST AMENDED REDEVELOPMENT PROJECT AREA
Page 8 of 9
A16. Page 270 of 574 Page 9 of 9
A16. Page 271 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Katheryn Boden, Economic Development Specialist CC: Johanna Leonard, Director of Community Development; Paul Zalmezak, Economic Development Manager Subject: Ordinance 119-O-19, Adopting Tax Increment Allocation Financing for the First Amended Howard and Ridge Redevelopment Project Area Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 119-O-19, adopting Tax Increment Allocation Financing for the First Amended Howard and Ridge Redevelopment Project Area.
Council Action: For Introduction
Summary: The City Council approved the creation of the Howard Ridge Tax Increment Financing (TIF) district on January 26, 2004. The TIF district will expire with the final collection of revenues on December 31, 2027. The existing boundary, shaded in the attached map, runs along the southern boundary of Evanston from Ridge Avenue on the west to the CTA tracks on the east. Staff is recommending approval of First Amendment to the TIF which will result in the expansion of the Howard Ridge TIF District.
The expanded area extends west of Ridge Avenue to 1415 Howard (just east of Ashland Avenue) for potential the provide which properties underutilized several incorporating redevelopment Immediate district. TIF the life remaining the during redevelopment of opportunities include the vacant Dairy Queen (911 Howard St.) site, which is under contract for a proposed affordable senior housing development by Evergreen Real Estate Group and CJE Senior Life. The map of the proposed amended TIF district is also attached.
Recognizing this opportunity, on March 28, 2019 the City Council authorized the approval of a contract with Kane McKenna & Associates (KMA) to determine if the proposed expansion area qualifies under State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment municipal on focused practice KMA a is Act. consulting economic
A17. Page 272 of 574 development and public finance. The firm has long assisted the City of Evanston with tax increment finance (TIF) advisory services.
Working with city staff, KMA completed the attached First Amendment to the Howard Ridge TIF Redevelopment Plan & Project and the TIF Qualification & Designation reports. For several months, KMA conducted the onsite analysis of the properties to determine the TIF physical qualification factors and studied the economic data provided by Cook County and city staff. KMA also assisted staff to convene the Joint Review Board (JRB) meeting on September 25, 2019 and the public hearing on October 28, 2019, as well as the associated newspaper notices and public mailings.
The qualification studies, reports, public notices, mailings, JRB meeting, and public hearing process follow the guidelines outlined by the State of Illinois statute 65 ILCS 5/11-74.4 – Tax Increment Allocation Redevelopment Act. The final step in the process is the City Council agreeing to amend the TIF by adopting the three ordinances, attached.
Additional information about the existing Howard Ridge TIF district, ordinances, redevelopment plan, the and following link: annual reports can be found at https://www.cityofevanston.org/business/tif-districts.
Legislative History: On September 25, 2019 the Joint Review Board unanimously approved an advisory, non- binding recommendation to the City Council. The City Council fulfilled the obligations of the TIF Act by convening a public hearing on October 28, 2019.
Attachments: 119-O-19 Ordinance Adopting First Amended Howard and Ridge Tax Increment Financing
Page 2 of 8
A17. Page 273 of 574 9/21/2019
119-O-19
AN ORDINANCE OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, ADOPTING TAX INCREMENT ALLOCATION FINANCING FOR THE FIRST AMENDED HOWARD AND RIDGE REDEVELOPMENT PROJECT AREA
WHEREAS, it is desirable and in the best interest of the citizens of the
City of Evanston, Cook County, Illinois (the "City"), for the City to implement tax
increment allocation financing pursuant to the Tax Increment Allocation Redevelopment
Act, Division 74.4 of Article 11 of the Illinois Municipal Code, as amended (the "Act");
and
WHEREAS, the City has heretofore approved an amended redevelopment
plan and project (the “First Amended Redevelopment Plan and Project") as required by
the Act by passage of an ordinance and has heretofore designated an amended
redevelopment project area (the "Frist Amended Redevelopment Project Area") as
required by the Act by the passage of an ordinance and has otherwise complied with all
other conditions precedent required by the Act,
NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of
the City of Evanston, Cook County, Illinois, as follows:
SECTION 1. Tax Increment Financing Adopted. That tax increment
allocation financing is hereby adopted to pay redevelopment project costs as defined in
the Act and as set forth in the First Amended Redevelopment Plan and Project within
the Area as legally described in EXHIBIT A attached hereto and incorporated herein as
if set out in full by this reference. The general street location for the First Amended
Page 3 of 8
A17. Page 274 of 574 Redevelopment Project Area is described in EXHIBIT B attached hereto and
incorporated herein as if set out in full by this reference. The map of the Area is
depicted in EXHIBIT C attached hereto and incorporated herein as if set out in full by
this reference.
SECTION 2. Allocation of Ad Valorem Taxes. That pursuant to the Act,
the ad valorem taxes, if any, arising from the levies upon taxable real property in the
First Amended Redevelopment Project Area by taxing districts and tax rates determined
in the manner provided in Section 11-74.4-9(c) of the Act each year after the effective
date of this Ordinance until the Project costs and obligations issued in respect thereto
have been paid shall be divided as follows:
a. That portion of taxes levied upon each taxable lot, block, tract, or
parcel of real property that is attributable to the lower of the current equalized assessed
value or the initial equalized assessed value of each such taxable lot, block, tract, or
parcel of real property in the First Amended Redevelopment Project Area shall be
allocated to, and when collected, shall be paid by the county collector to the respective
affected taxing districts in the manner required by law in the absence of the adoption of
tax increment allocation financing.
b. That portion, if any, of such taxes that is attributable to the increase
in the current equalized assessed valuation of each lot, block, tract, or parcel of real
property in the First Amended Redevelopment Project Area shall be allocated to, and
when collected, shall be paid to the municipal treasurer, who shall deposit said taxes
into a special fund, hereby created, and designated the "First Amended Howard and
Ridge Redevelopment Project Area Special Tax Allocation Fund" of the City and such
Page 4 of 8
A17. Page 275 of 574 taxes shall be used for the purpose of paying Project costs and obligations incurred in
the payment thereof.
SECTION 3. Invalidity of Any Section. That if any section, paragraph, or
provision of this Ordinance shall be held to be invalid or unenforceable for any reason,
the invalidity or unenforceability of such section, paragraph, or provision shall not affect
any of the remaining provisions of this Ordinance.
SECTION 4. Superseder and Effective Date. That all ordinances,
resolutions, motions, or orders in conflict herewith shall be, and the same hereby are,
repealed to the extent of such conflict, and this Ordinance shall be in full force and
effective immediately upon its passage by the Corporate Authorities and approval as
provided by law.
AYES ______NAYS ______ABSENT ______
Introduced:______, 2019 Approved:
Adopted:______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Page 5 of 8
A17. Page 276 of 574 EXHIBIT A
LEGAL DESCRIPTION FIRST AMENDED REDEVELOPMENT PROJECT AREA
Page 6 of 8
A17. Page 277 of 574 EXHIBIT B
The Redevelopment Project Area (the "RPA") RPA is generally bounded on the north by various parcels that front Howard Street and Chicago Avenue, on the east by the City of Evanston's (the "City") boundaries and the Chicago Transit Authority (CTA) Red Line, on the south by City boundaries and on the west by Ashland Avenue. The RPA contains mixed residential uses, retail/commercial properties and institutional uses.
Page 7 of 8
A17. Page 278 of 574 EXHIBIT C
MAP OF FIRST AMENDED REDEVELOPMENT PROJECT AREA
Page 8 of 8
A17. Page 279 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: David Stoneback, Public Works Agency Director Subject: Ordinance 142-O-19, Amending City-12 - 17, City Code Section 7 Waterworks System "Charges, Rates, Fees and Penalties" Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 142-O-19, amending City Code Section 7-12-17 "Charges, Rates, Fees and Penalties," increasing the water meter charges and water rates by 5.4%. This increase has a corresponding decrease to the sewer rate and is cost-neutral to Evanston residents.
Council Action: For Introduction
Summary: Staff is recommending a 5.4 percent (5.4%) water rate increase beginning January 1, 2020. The existing water rate is billed as a minimum charge for the first 5 units based on water meter size, and a quantity charge for every unit in excess of the first 5 units in the bi-monthly billing period (1 unit = 100 cubic feet or 748 gallons of water).
Effective January 1, 2020, both the minimum charge and the quantity charge are proposed to be raised by 5.4 percent. For the 5/8-inch and the 3/4-inch meter sizes (the meter sizes most commonly used in single family homes), the minimum charge for the first 5 units consumed in the bi-monthly billing period will increase from $9.80 to $10.33. The quantity charge for usage in excess of the first 5 units will increase from $2.74 per unit to $2.89 per unit. A fee table for the proposed water rates is provided in Exhibit 1.
A18. Page 280 of 574 EXHIBIT 1 PROPOSED 2020 WATER RATES AND MINIMUM CHARGE STRUCTURE
Analysis: The financial goals of the water fund are to maintain a minimum cash balance of $3,500,000 and to keep debt service expenses to less than twenty-five percent of the operating capital while maintaining the water treatment plant in good operating condition and to replace or rehabilitate one percent (1.5 miles) of the water distribution system annually.
The major challenge in meeting these financial goals is the annual cost to replace 1.5 miles of the water distribution system. The cost to complete this type of work is approximately $3,600,000 annually and continues to increase.
Page 2 of 10
A18. Page 281 of 574 A 2017 article in the Chicago Tribune indicated that Evanston had one of the lowest water rates, and also had a very low percentage of water loss through leaky pipes or water main breaks. Another statistic reviewed in the article was the age of the water main pipes. For the 163 communities surveyed in the article, the average percentage of water main over 60 years old was 29.3%. In Evanston 62.8% of the water mains are over 60 years old, much higher than the average of all the communities. Several other surrounding communities (Skokie, Lincolnwood, Morton Grove, and Park Ridge) also have high percentages of water mains over 60 years old. The article indicates that 88% of Skokie’s water mains are over 60 years old. However, Evanston is unique in the age of its water mains because unlike Skokie, whose water mains were mostly constructed in the late 1940s, early 1950s, the Evanston water main system is much older. Evanston has nearly 50 miles, or 32% of the total system, that is over 100 years old and another 40 miles, or 25% of the total system, that is over 80 years old. These older water mains are constructed of cast iron pipes which are projected to have a useful life of 125 years. A map indicating the age of the Evanston water main is attached for reference.
It is therefore critical for Evanston to continue to replace water main each year. Since this work should be completed annually, staff recommends that the cost to complete this work be provided by the water fund without the need to sell bonds. The majority (78%) of the Evanston water mains are comprised of smaller diameter water mains that Evanston retail customers are solely responsible for. The responsibility for the remaining 22% of the distribution system is equally shared with Skokie. Unlike projects at the water plant where all of the wholesale water customers help fund the improvements, funding for water main projects is vastly dependent on revenue from the Evanston retail users.
Impact to Users: Exhibit 2 illustrates staff’s recommendation for both the sewer and water rates adjustments over the next several years. It is staff’s recommendation to continue to lower the sewer rate, as debt service from the Long Range Sewer Improvement project decreases, and to raise the water rate accordingly so that the Evanston users do not realize any overall increase to the sewer and water rates.
EXHIBIT 2 Evanston Combined Water & Sewer Rates per 100 Cubic Feet
YEAR 2017 2018 2019 2020 2021 Sewer Rate per $3.82 $3.66 $3.39 $3.24 $3.24 100 CF Water Rate per $2.31 $2.47 $2.74 $2.89 $2.89 100 CF Total Water & $6.13 $6.13 $6.13 $6.13 $6.13 Sewer Rate Total Percent 0% 0% 0% 0% 0% Change
Page 3 of 10
A18. Page 282 of 574 Raising the water rates helps provide the funding needed for the annual water main replacement program, minimizing the amount of bonds needed to fund the program.
Summary: Evanston’s water and sewer rates are based on one-hundred cubic feet units because water meters measure water usage in cubic feet. Municipalities bill in different units, including 100 cubic feet, 1,000 cubic feet and 1,000 gallons. In order to compare the Evanston rate to other municipalities, all rates were converted to a cost per 1,000 gallons.
Even with the proposed 2020 water rate increase, Evanston’s water rate at $3.86 / 1,000 gallons will be 2nd lowest in the Chicagoland area. Evanston’s sewer rate, at $4.33 / 1,000 gallons will continue to be one of the highest in the Chicagoland area. However, Evanston’s combined water and sewer rate at $8.19 / 1,000 gallons is the low middle of the surrounding communities.
EXHIBIT 3 Evanston Combined Water & Sewer Rates per 1,000 Gallons
Staff believes that other communities will increase their combined rates over the next several years, where Evanston is projecting to avoid any combined rate increase. As a result, staff anticipates that the Evanston rate will move towards the top of this list and be one of the lower combined rates. This is confirmed in Exhibit 4 below which shows the total water & sewer rates charged by the communities from 2016 to 2019.
Page 4 of 10
A18. Page 283 of 574 EXHIBIT 4 Total Water & Sewer Rates Comparison 2016 to 2019
Evanston is only one of four communities that has not had a water / sewer rate increase since 2016. The other three communities, Niles, Lincolnwood and Morton Grove are the new wholesale water customers to Evanston.
Attachments: Ordinance 142-O-19 Water Rates Water Main Age Map
Page 5 of 10
A18. Page 284 of 574 10/10/2018
142-O-19
AN ORDINANCE
Amending City Code Section 7-12-17, City Waterworks System “Charges, Rates, Fees and Penalties”
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: Section 7-12-17 “Charges, Rates, Fees and Penalties” of
the City Code of 2012 is hereby amended to read as follows, to include a five and four
tenths percent (5.4%) rate increase effective January 1, 2020.
7-12-17: CHARGES, RATES, FEES AND PENALTIES:
The fees and penalties for the waterworks system shall be paid according to the following table. Fees and penalties not covered by this table shall be as described in Section 1-4-1 of this Code.
Waterworks System Charges, Rates, Fees and Penalties Construction Water Fee (prior to meter installation) $100.00/ diametric inch/ month Section 7-12-3(B) Connection Fee Initial Connections: ⅝ inch displacement $930.00 ¾ inch displacement $1,331.00 1 inch displacement $2,261.00 1 ½ inch displacement $4,393.00 2 inch displacement, compound, or turbine $7,024.00 3 inch displacement $13,310.00 3 inch compound $14,197.00 3 inch turbine $15,923.00 4 inch displacement or compound $22,615.00 4 inch turbine $27,280.00 6 inch displacement or compound $43,936.00 6 inch turbine $54,483.00 8 inch compound $70,988.00 8 inch turbine $80,081.00
Page 6 of 10
A18. Page 285 of 574
142-O-19
Upgrade Connections: The fee for upgrading to a larger connection shall equal the difference between the costs of the new, larger connection and the original connection. The fees collected for Initial Connections and Upgrade Connections shall be placed in a special account earmarked for the purpose of funding capital investment in new waterworks facilities. Replacement Connections: Services, 2” and smaller $100.00 Services, greater than 2” $100.00/ diametric inch Section 7-12-3(D) Water Meter Installation Permit Fee $50.00 Section 7-12-6-2(B) Water Meter Transfer Fee $50.00 Section 7-12-6-2(B)2 Meter Charges & Water Rates Size Charge Bi-monthly meter charge - The minimum service charge includes 5/8” and ¾” $9.80 $10.33 the first five hundred cubic feet (500 cu.ft.) of water consumed 1” $19.55 $20.61 during the two (2)-month period for which the minimum service 1 ½” $36.60 $38.58 charge is assessed. Any fractional part of the calendar year less than two (2) months shall be prorated and the proper 2” $57.63 $60.74 minimum service charge collected. 3” $101.49 $106.97 Quantity rate charged for all water used during the period for 4” $162.57 $171.35 which the minimum service charge is assessed, in excess of the 6” $286.69 $302.17 first five hundred cubic feet (500 cu.ft.) of water that is included 8” $485.33 $511.54 in the minimum service charge. 2.74 2.89/ 100 cubic feet Section 7-12-7-1 Water Turn On Fee During business hours $25.00 Outside of business hours $75.00 Section 7-12-7-3 Fire Service Semi-Annual Charge $20.00/ diametric inch/ 6 months Section 7-12-8 Air Conditioning Device Annual Demand Charge $20.00/ ton capacity over 5 tons (unless equipped with water conservation device) Section 7-12-9-2(C) Unauthorized Water Turn On Penalty Time and materials for repairs plus: Services, 2” and smaller $100.00 Services, greater than 2” $500.00 Section 7-12-12 Shut-Off for Property Vacancy Fee $50.00 Section 7-12-13 Lawn Sprinkling Restriction Violation Penalty $25.00 - $500.00 per day of Section 7-12-14-2(C) violation
~2~
Page 7 of 10
A18. Page 286 of 574
142-O-19
Penalty For Tampering With City Waterworks System $500.00 plus the estimated cost of Section 7-12-15(A) water Penalty for Obstruction of Roundway, Service Box or Water $50.00 Meter Section 7-12-15(B) Cross Connection Control Device Installation Permit Fee $40.00/ device Subsection 7-12-16-4 Annual Cross Connection Control Fee $35.00/ device Subsection 7-12-16-6
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: If any provision of this Ordinance 142-O-19 or application
thereof to any person or circumstance is held unconstitutional or otherwise invalid, such
invalidity shall not affect other provisions or applications of this Ordinance that can be
given effect without the invalid application or provision, and each invalid application of
this Ordinance is severable.
SECTION 4: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 5: This Ordinance 142-O-19 shall be in full force and effect on
January 1, 2020, after its passage, approval, and publication in the manner provided by
law.
~3~
Page 8 of 10
A18. Page 287 of 574
142-O-19
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~4~
Page 9 of 10
A18. Page 288 of 574 A18. Page 10of
7 9 1 8 1 1 2 2 2 2 3 1 1 2 2 5 1 2 2 6 1 1 2 2 4 1 1 1 W
0 0 0 0 1 6 0 1 5 6 0 4 8 3 0 0 5 4 7 0 2 3 8 2 0 0 9 7
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 t e 3800 G r L M PRINCETON H AVE E S T H T N H A GREELEY
A
I a MEADOW- 3700 V
L R
H Y
L ( W I
R
i S E E
I LARK LN
PRINCETON L L n
I T R W I
1 D H L N S
S A
O
E Y A
C
G E I R
D
R
R 3600
R 5
a
N C D
O E A g T W C
W
S R BERNARD
S E S F L e
D O
6
t L T
I I L R T F
S 35 D C I PL 00 N D
. A F e
A T G T
m O S
B H h T
R
O T
E R C A
m T CRAWFORD N AVE
L r D
M i x
C O
Y
L
P H N
s 0 340 0 2 4 6 8 > P E A P
U S O
A L d
A O L R T L
F L
S
Y U
Y M
A Y V
- 1 1 1 1 C W R L M 1 T m i N E T
E
E X
H P
S 2
E
S l
R O - - - - 0 o
1 I
H N
e C
i a a P
a 3300 a 0 4 6 8 1 T a
T A t
A
0 E
R R
T
c
p
C y D
PROSPEC R H i i T AVE N
I s
0 0 0 0 R
N i C i O W P n E t R
l A V
E A T T
( K T n a O I
S
T r Z
e n
Y R L (
I Y 0 i
c 3 E T
M
N E B P
1 A o s
T
( ( (
4 L
l
R
t L
O
r
h L
P L H A
S T I N G S
0 1 9 8 A V : E R
L A
a
S o
(
N 3 S o 9
p A
R
E V A
D N A L H G I H 3200
O
T
. 9 . . 3 C B
=
H
1 r
o d
.
N O u 1 7 4
A
K
t R I t D G E
W A
A Y o A
1 V
N E
. 9
L R
g
, r
S
E V A
E L A D N W A V L
a O a Y
0 3
C
n
6 C
T
v I e
X E
m m m .
N
I I
R R
.
R
m
e
4
8 d i
l
d
L A W 5 N D A L E 0 A 0
1 V 3 d E e
m
P
)
0
i i i
A
N
a
P
e
l l l
i
t m S
O
S m
R
A
(
e e e
l MARC
T Y
i T
P
K
R d
r e M A R Y C Y
L l
A V i E
M
AV s e s s E
N
P i y i
n S A s
l L l
E
" T
e ) ) ) I
N
s S e
a
)
D A
C E N T R A L
P A R K
A V E 3000
) Y
- - - s B s y
-
E
)
- L
1 6 5 HURD AVE i
L e
3
s A
-
1 9 . .
LINCOLNWOOD DR
"
1 2 4 S a
L
C
S T
2 . 2 LINCOLNWOOD DR
I
N
T
O w . 3 % % r
C 5 . 5
L 2900 W
F 4 %
O i s t
A
% REESE AVE .
L h % E 3
X
N
) FORESTVIEW RD
L o G
W
%
I N AVE EWING 2800
u
O
R
O EWIN G G AVE
t R
D D
D
R 0 a
L w
A A
N BENNETT AVE N BEN N McCOR ETT AVE 2700
M
H ICK BLVD C a
2600 D
T
( T
S A
S
P E
H
T r S
T
N
R A
M t A c T a r DA
N T T IEL R Y
a
NORTH SHORE CHANNEL Z R K 0
E 260
E
e A AV C E
W L R n
S
25 00 M A McD A ANIEL R s A T L
C L VE HA
I LN McD M ANIEL AVE A
N P
McDANIEL AVE B
U C
H
T
t
G
L
R D
A A
N
A
N
R i T
P
2500
A
E
e
O T R
A
W
Y O
S
S S
H
D S
2400 r E LELAND AVE P
0 I N T
O T
N T
B A T
L Y s FOW LER E AVE L H FO o . WLER AVE M
E E
A
N L 2 E ELM i N N AVE
O
Y
Y c H S
I
2 5 300 R
E
W 2400
R o O LEMAR AVE C
P A
F t N L
N N L O O
O
f R
P N
S
f PIT NER A O
VE S E
P O
PITN D H ER PITNER L AVE T AVE T R R C
M S
O
E R y
L
O M
LAUREL AVE PIONE ER RD WALNU I T a AVE A R S 2300
L
S A C
S S
PITN T ER AL T Y P
E D L
L
S E
I O T
W K T R
C D D
V A H T W E
H n
A
T
HART R E
EY AVE E K
I N
A K I A HARTREY AVE S U
2200 O R
L
y S R W O K
S E HARTREY I
W S A VE
A R E
R
T
G N E E G
H
T
A N
N C L
D S
R 0 E W A 0
22
C
i
S
E
O R
I L R N T e k A
S D
N
E
S HAR
RICHMOND P TREY H I
AVE A A T
o
O
V N E
S R S
T R V H
E
L T
GREY V AVE
D s GREY C
AVE I
E i B
T E R E N
Y
S I E B
E L AVE A
0 GREY AV N E n
N
G REY AV R E
D N G T E
O F Y
S I
2100
. D
G GREY AV E M c
S R A
5 L T
2100 G S
d
T D L
T E GREY O HOVL AND CT E
T
X N P
O
A N S f .
BR S t O WN AVE
N GREY T
AVE S F e
T BROWN AVE
BROWN S
T E S
2 000 S S S BRO T W N AVE C G
S
R
r
T T S
T WOO 2000 B ROWN DBINE T AVE
AVE H P
T O R
e
P m
DODGE AVE DOD A
GE A
AVE L E G
1900 DODGE AVE B A
DOD
B GE N R
e
R
AVE i
S
D K N
L E
L P
R
O I
E E
N V
S R
Y 1900
N
O T
U E A
b A D
O E BROADWAY A VE
U
I
N
w R
S
C
B M L
L
I H B D
ARROW N I
AVE J
T T E
E
DARRO V 18 W 00 AVE H
S B
DARR O A W AVE b
H P E A
M
DARROW E A
S
AV M G E Y
I A
O
S N
A V R w Y N
L
v
E F
N E
T A R G A
R 1 E 8
Y 0 L 0
DEWEY N A O VE V
S M K
C
I
R S
E
S A
L M O N
T I u W D
B w
O T E S N
S e
E E
O L DEWE Y
A C
VE
L
N 1700 U V
T
L S
A DEW R EY AVE S C N
V S
O
DEWEY E
AVE T
L L
T E
.
S 0 170
S T a T O
S
D R S R
F E
c
S H
O
T H
T
O V
L S r T
E
EASTWOOD AVE T
F I T
i N
L
E N t
R E A C t S FLORENCE AVE I FLORENCE AVE L S N 16 00 R
D G T X y
T S ASHLAND K W AVE A
S T
S T
I E i
T n 3
S R N o S 1600
I T ASHL W O AN
L D AVE C T
T K
E
D D
D
L
o L f
N ASH A L ASHLAND AVE AND E AV Y
E JACKSON
I A AVE E P e ASHLAND AVE N
0 150 N
O
R
L 1
R
S V
S S O
T
D C v JACKSON T
T N T
I 1
s R R R
WESLEY AVE S WESLEY AVE 1500 L H
O
S
I S A a
V A
C
n
T ,
I S
N L 1400 WESLEY AVE N
WES L S EY AVE R
A
n
C S WESLEY G T
A
S
L
T E HAMPTON
S T
I I t s L
N E
WESLEY T AVE 1400
L
O
2
O ASBU ASBURY RY AVE
AVE S PKY
D t
N T C
C
T
R
0 130 R
o
ASBURY o
AVE
L
R
S
W
N Y M M S
S ' K R A M
. T
S L H
O
T 130 L 0 I
D
N E
n M
ASBURY E 0
AVE A
A O A
M
P
S O F
E
O
O
T L
T R G D I ASB
N S
P URY
E AVE
R D
.
N
RIDGE N CT C
A N E
BARTON V
AVE H Y
o 0 S 120 V
A R
I I A
D L D
R
G n
S 0
H 0 O
E 12
E
S I P A 1
R
A R
U N
I
O O A D
E G O
V G O S r L U E
A E
R
A D N
R S S V BRYA G NT AVE
G E
g T
K L N E
R
B S
U
T R
D P
L
A
A T
A S I T
O OAK
AVE
T
I
N A
L
L
K P
/
8
O
0 R R O 0 L 11
H T
N T
O
L
S m
A a
E E
V N
E E A
S
N
T N
T
E PRATT
D CT
R
E
R
T
OAK
A
GIRA T
RD A VE
R
I
V
D 11
S 0 0
G T a E R )
A
E
V
E T
100 E S
0 MAPLE
S AVE
R I D
G S
E
p A
V B T
E MAPLE
T AVE
S
S T
i
G
E
H
E A S
GARRISON AVE
T
C F L M
d
A T A
W 0
C 100
O I
0 n N
90
A F M
R E
O i
O A F R ELMW OOD S ID AV N
E C G
M I R
S
s
I L E
D A
T E V
O R
I E
L E
A
E S
N
B O E L
G
ELMWOO L U D
AVE
F S
M
c
D C
D O
G R 90 Y 0
S
R K R
1
H
C
C A
E L S
L
E H
I O
O
80 BENSON A
U T
0 V E
E N
T
.
F P N
l
S N
E
T T
s
H X L
5
O
N
a E
SHERMAN AVE
N O L
M R E
S
R I
SHER
MAN O
AVE
N
L D
R
G R
S
B
S T
T
H L
N L
I
I E
R R
M M U I D S
i 0
N T
I 80
R
L
A Y
C A
P T
W N D D
R
m
P
N D T
L I P E V SHERMAN O
D
AVE A
N
N S
A L
O E
E K
U M
A A
A
I SHERMAN AVE
T
E A
V L D
G
L C L
E N
N
H C
I C
C R L
N V
V P
N
A
E I
G e R
O L
O
G L
K
L
A R
E I
H L
C U S T E V R
A V
E E
70 0
P E B S D
S
C I
D R
P
P S
S
R
S U
L T ORRINGTON AVE r
U
H I
I
L L L
D
D T
0
D T G E 0
7
S
R C
L P
s
A R
A
S Y
A I
E
E T
C A L S
B A
T S
V N
P
C A
L L A N
A V E
R S
C A L L A
N
P
N .
R S
R T
HINM N
R T S
AN AVE S S C
H
K E L L T
H P
I T
h T
C A
E T
A L R W T
O
N S
G
L M G
O
P A H
E R T
I P
A N
C
V R
S
S L t
E M S
K O T Y O R
L A L
T T T
T C L Y D E
A V
E T T
m 600 N
E
E H U
E
M O
K S
E
P W T
E
I
H 60
P 0
I
E N D
H
M K
JUDSO L
N N AVE A
A
D
A
N V L
l
E
E P
E
E E
A L
S
I
V L
N
E
N D
T
I E S
f S
J T N
U E
P E D
E T
o Z O A D
S S R
G
O K
M C Y
I
N R
T
N
E F
J 0 50
U U L
0 D
50 H
S
r
O A I
N L E
V
T
E
B
FORES S
T A
A VE
H V
E S
S U
I
m
D D
T
T
H
R
400 F S
H
O
B E
E E
R
R N A
S
E I
U D
S
S 400
T A
M
T
F
o N
O P
CAMPUS DR
R R T
E M L
S
R
T P
D
S
A N
V K P
E A T r
300
I
H S B C L R e
2
A T T L M I T
ICHIGAN AVE R
O S
E
V
M
M 300
C
R
M
I C
H
I N D G A
N L
i
A V
20 i E P 0 E
l
n S
e
L
A S
T D
s C
T T R SHERIDAN RD 0 f 20 R
N
o
E
P D G
E
M
E
R
O E
S H E R I D
A N
0 L 10 R
D
r
L
S
D Q
m
S 100
H LAKE SHORE BLVD
E R
I D A N a t ´ i o
n
Page 289 of574 L
A
. K E
S
M
H
I E
C
R
H
I
D I
G
A A N
N
R 1 D 0 / 2 8 / 2 0
1 1 1 2
1 1 1 2 2 2 2 1 1 1 2 2 2 2 2 1 1
0 1 3 3
2 4 7 1 4 7 6 5 6 8 0 2 5 8 9 9
4 6 8 1 2 3 5 9 7
0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9
0 0 0 0 0
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: David Stoneback, Public Works Agency Director Subject: Ordinance 143-O-19, Amending City Code Section 7-13-3 to Decrease Sewer User Rates Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 143-O-19, amending City Code Section 7-13-3 to reduce the sewer user rate by 4.46%, from $3.39 to $3.24 per billing unit (100 cubic feet of water consumed).
Council Action: For Introduction
Summary: Approximately 40% of the sewer fund budget is for debt service. The vast majority of the debt service is a result of borrowing funds for the City’s $210 million Long Range Sewer Improvement program that was constructed between 1991 and 2008. Final debt service payments for three IEPA loans were made during 2019, reducing the debt service amount by over $830,000.
Using a cost of service analysis, staff determined that the sewer user charge could be reduced by 4.46% and still provide sufficient funding to allow the sewer fund to maintain a minimum cash balance of $2,500,000 and provide funding for rehabilitation of 1% of the combined sewer system and implement storm water management improvements.
History: The sewer user charge was raised to its maximum rate of $3.94 per billing unit in March 2004. The sewer user charge was reduced by 3% (to $3.82) in 2017, 4% (to $3.66) in 2018 and 7.5% (to $3.39) in 2018. In January 2011, a minimum sewer charge and a second tier sewer charge was established for tax exempt properties.
Attachments: Ordinance 143-O-19 Decrease Sewer Rates
A19. Page 290 of 574 10/17/2019
143-O-19
AN ORDINANCE
Amending City Code Section 7-13-3 to Decrease Sewer User Rates
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: Section 7-13-3 “Sewer User Rates” of the City Code of
2012 is hereby amended to read as follows, to include a four and forty-six tenths
percent (4.46%) rate decrease in the Sewer User Rates as provided below, effective
January 1, 2020:
7-13-3. - SEWER USER RATES.
(A) There is hereby established a sewer user charge for the use of, and service supplied by, the public sewer of the City. The sewer user charges shall be assessed for all users each bimonthly billing period commencing on or after January 1, 201920. (B) The sewer user charge for users of the system within the City that are not exempt from the payment of property taxes shall be three dollars thirty-nine twenty-four cents ($3.393.24) per billing unit of water consumed. (C) The sewer user charge for users of the system within the City that are exempt from the payment of property taxes shall be three dollars thirty-nine twenty- four cents ($3.393.24) per billing unit for the first one hundred (100) billing units of water consumed. Thereafter, the sewer user charge shall be four dollars fifty-three cents ($4.53) per billing unit in excess of one hundred (100) billing units of water consumed. (D) The adequacy of the sewer user charge shall be reviewed annually by the City Council. The sewer user charge will be revised by ordinance as needed. (E) The users of the public sewer will be notified of any change in the total sewer user charges in conjunction with the regular sewer billing. (F) Those furnished with sewer service only, and not connected with or supplied with water from the City water supply system, shall pay a bimonthly sewer service fee based on a calculated estimate of the volume of use at the rate established in Subsection (A) of this Section. (G) Those furnished with water service only and not connected with or supplied with sewer service shall pay only the water rates and charges established by Section 7-12-17 of this Title.
Page 2 of 3
A19. Page 291 of 574
143-O-19
(H) Those furnished with water and sewer service but not consuming any water shall pay a bimonthly minimum sewer service charge of sixteen dollars ninety-five twenty cents ($16.9520).
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: If any provision of this Ordinance 143-O-19 or application
thereof to any person or circumstance is held unconstitutional or otherwise invalid, such
invalidity shall not affect other provisions or applications of this Ordinance that can be
given effect without the invalid application or provision, and each invalid application of
this Ordinance is severable.
SECTION 4: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 5: This Ordinance 143-O-19 shall be in full force and effect on
January 1, 2019, after its passage, approval, and publication in the manner provided by
law.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~2~
Page 3 of 3
A19. Page 292 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Luke Stowe, Interim Administrative Services Director CC: Michael Rivera, Interim Parking Division Manager Subject: Ordinance 145-O-19, Amending Various Sections of Title 10, Chapter 11 “Motor Vehicles and Traffic” Pertaining to Parking on Simpson Street Date: November 11, 2019
Recommended Action: The Transportation & Parking Committee and staff recommend City Council adoption of Ordinance 145-O-19, amending various sections of Title 10, Chapter 11 “Motor Vehicles and Traffic” pertaining to parking on Simpson Street.
Council Action: For Introduction
Summary: Staff was informed that Meals on Wheels would be taking over the business located at 1723 Simpson Street. The Parking Division has reviewed the signage and Code language of the 1600-1800 blocks of Simpson and would like to address parking concerns and bring the Code up to date. In the past few years, the businesses are increasing in this area. A request to add a loading zone in front of the business will be addressed closer to the date of the business opening.
Although numerous changes to the Code are being recommended, there will not be much of a change for parking to the area. The amendments will add: 1. 30 minute parking/loading zone on the north side of Simpson from Dewey Avenue to first alley west thereof from 9:00 am – 6:00 pm (existing) 2. No parking restrictions in front of the two homes at 1717 and 1719 Simpson (existing); 3. 2 Hour Parking on the north side of Simpson from Dewey Avenue to Ashland Avenue from 9:00 am – 6:00 pm. (new).
Legislative History: Transportation & Parking Committee approved on October 23, 2019.
A20. Page 293 of 574
Attachments: Ordinance 145-O-19 Amending Various Sections of Title 10, Chapter 11 “Motor Vehicles and Traffic” Pertaining to Simpson Street
Page 2 of 5
A20. Page 294 of 574 10/18/2019
145-O-19
AN ORDINANCE
Amending Various Sections of Title 10, Chapter 11 “Motor Vehicles and Traffic” Pertaining to Simpson Street
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: City Code Section 10-11-10 Schedule X(A) and X(B) of the
Evanston City Code of 2012, as amended, is hereby further amended:
In accordance with the provisions of Section 10-4-15-5 of this Title, parking shall be limited upon the days and between the hours and upon the streets or portions thereof listed hereafter:
(A) No person shall park a motor vehicle for a period of time longer than thirty (30) minutes between the hours of nine o’clock (9:00) A.M. and six o’clock (6:00) P.M. on any day except Sunday and national holidays upon any of the following streets or portions thereof:
SCHEDULE X (A): 30 MINUTE LIMITED PARKING (A) No person shall park a motor vehicle for a period of time longer than thirty (30) minutes between the hours of nine o’clock (9:00) A.M. and six o’clock (6:00) P.M. on any day except Sunday and national holidays upon any of the following streets or portions thereof: Lake Street North side, Ashland Avenue to a point 150 feet east thereof Simpson Street North Side, Dewey Avenue to first alley west thereof (B) No person shall park a motor vehicle for a period of time longer than one hour between the hours of nine o'clock (9:00) A.M. and six o'clock (6:00) P.M. on any day except Sunday and national holidays upon the following streets or portions thereof:
Page 3 of 5
A20. Page 295 of 574 145-O-19
SCHEDULE X (B): TWO-HOUR LIMITED PARKING (B) No person shall park a motor vehicle for a period of time longer than two (2) hours between the hours of nine o'clock (9:00) A.M. and six o'clock (6:00) P.M. on any day except Sunday and national holidays upon the following streets or portions thereof: Simpson Street North side, Darrow Avenue to a point 100 feet east thereof Simpson Street North side, Dewey Avenue to Ashland Avenue
SECTION 2: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 3: All ordinances or parts of ordinances in conflict herewith
are hereby repealed.
SECTION 4: This Ordinance shall be in full force and effect after its
passage and approval.
SECTION 5: If any provision of this Ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this Ordinance that can be given effect
without the invalid application or provision, and each invalid application of this
Ordinance is severable.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
~2~
Page 4 of 5
A20. Page 296 of 574 145-O-19
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~3~
Page 5 of 5
A20. Page 297 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Alexandra Ruggie, Assistant City Attorney Subject: Ordinance 152-O-19, Amending Portions of the City Code Following the Enactment of the Illinois Cannabis Regulation and Tax Act to Address Possession of Recreational Marijuana and Associated Paraphernalia Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 152-O-19, amending portions of the City Code following the enactment of the Illinois Cannabis Regulation and Tax Act to address possession of recreational marijuana and associated paraphernalia.
Council Action: For Introduction
Summary: Ordinance 152-O-19 amends portions of the City Code to comply with the Illinois Cannabis Regulation and Taxation Act, 410 ILCS 705/ which legalizes the recreational use of marijuana in the State of Illinois. The ordinance addresses possession of recreational marijuana and associated paraphernalia as well as consumption of marijuana in public.
Attachments: Ordinance 152-O-19 - Amending Portions of the City Code to Address Possession and Consumption of Recreational Marijuana
A21. Page 298 of 574 9/11/2019 10/28/2019 10/30/2019 152-O-19
AN ORDINANCE
Amending Portions of the City Code following the Enactment of the Illinois Cannabis Regulation and Tax Act to Address Possession of Recreational Marijuana and Associated Paraphernalia
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: City Code Title 8, Chapter 13, “Marijuana,” of the Evanston
City Code of 2012, as amended, is hereby further amended to read as follows:
CHAPTER 13 – MARIJUANA
8-13-1. - DEFINITIONS.
The following words and phrases, when used in this Chapter, have the following definitions:
CANNABIS. Marijuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.
CANNABIS A product derived from cannabis that is produced by extracting
Page 2 of 13
A21. Page 299 of 574 152-O-19
CONCENTRATE. cannabinoids from the plant through the use of propylene glycol, glycerin, butter, olive oil or other typical cooking fats; water, ice, or dry ice, or butane, propane, CO2, ethanol, or isopropanol.
CANNABIS A sealed, traceable, container, or package used for the purpose CONTAINER. of containment of cannabis or cannabis-infused product during transportation.
CANNABIS Marijuana, hashish, and other substances that are identified as FLOWER. including any parts of the plant Cannabis sativa and including derivatives or subspecies, such as indica, of all strains of cannabis; including raw kief, leaves, and buds, but not resin that has been extracted from any part of such plant; nor any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin.
CANNABIS- A beverage, food, oil, ointment, tincture, topical formulation, or INFUSED another product containing cannabis that is not intended to be PRODUCT. smoked.
8-13-2. - POSSESSION OF CANNABIS PROHIBITED. (A) It shall be unlawful for any person under the age of twenty-one (21) years old to knowingly possess cannabis within the limits of the City. (B) A person who is twenty-one (21) years of age or older and a resident of the State of Illinois may possess: 1. 30 grams of the cannabis flower; 2. No more than 500 milligrams of THC contained in cannabis-infused product; and 3. 5 grams of cannabis concentrate.
(C) A person who is twenty-one (21) years of age or older and who is not a resident of the State of Illinois may possess:
1. 15 grams of cannabis flower; 2. 2.5 grams of cannabis concentrate; and 3. 250 milligrams of THC contained in a cannabis-infused product.
This Chapter shall not be construed as conflicting with or limiting enforcement of the Illinois Cannabis Control Act, 720 ILCS 550/, the Compassionate Use of Medical
~2~
Page 3 of 13
A21. Page 300 of 574 152-O-19
Cannabis Program Act, 410 ILCS 130/1, or the Illinois Cannabis Regulation and Tax Act 410 ILCS 705/, as amended from time to time.
8-13-3. - POSSESSION OF LESS THAN 10 GRAMS CANNABIS BY PERSONS UNDER THE AGE OF 21; ADMINISTRATIVE ADJUDICATION; PENALTIES OR DISPOSITION.
(A) Any person under the age of twenty-one (21) years old who violates this Chapter by possessing not more than ten grams (10 g) of cannabis shall be issued a notice of violation. The notice of violation shall direct the individual to appear before the City's Division of Administrative Adjudication for an administrative adjudication hearing.
(B) Any person under the age of twenty-one (21) years old appearing before the Division of Administrative Adjudication and found to have violated Section 8-13- 2 of this Chapter by possessing not more than ten grams (10 g) of cannabis shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each violation, and or in the discretion of the Hearing Officer, may be referred to a suitable drug education, counseling, or rehabilitation program, or ordered to perform community service.
This Chapter shall not be construed as conflicting with or limiting enforcement of the Illinois Cannabis Control Act, 720 ILCS 550/, the Compassionate Use of Medical Cannabis Program Act, 410 ILCS 130/1, or the Illinois Cannabis Regulation and Tax Act 410 ILCS 705/, as amended from time to time.
8-13-4. - POSSESSION OF MORE THAN 10 30 GRAMS; PENALTIES OR DISPOSITION.
Persons twenty-one (21) years of age and older possessing more than ten grams (10 g) in violation of 8-13-2 of cannabis and persons twenty-one (21) years of age and older and who are cited for violations of this Chapter will have such citations adjudicated in the Second Municipal District of the Circuit Court of Cook County. Any person found to have violated Section 8-13-2 of this Chapter by possessing more than ten grams (10 g) the allowed amounts of cannabis shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500.00) for each violation.
This Chapter shall not be construed as conflicting with or limiting enforcement of the Illinois Cannabis Control Act, 720 ILCS 550/, the Compassionate Use of Medical Cannabis Program Act, 410 ILCS 130/1, or the Illinois Cannabis Regulation and Tax Act 410 ILCS 705/, as amended from time to time.
8-13-4. - ANNUAL REPORT.
The Chief of Police shall make an annual report and evaluation to the City Council of the disposition of all violations of this Chapter.
~3~
Page 4 of 13
A21. Page 301 of 574 152-O-19
SECTION 2: City Code Title 8, Chapter 14, “Drug Paraphernalia Control,”
of the Evanston City Code of 2012, as amended, is hereby further amended to read as
follows:
CHAPTER 14 - DRUG PARAPHERNALIA CONTROL
8-14-1. - TITLE. This Chapter shall be known and may be cited as the DRUG PARAPHERNALIA CONTROL ORDINANCE.
8-14-2. - DEFINITIONS.
As used in this Chapter, unless the context otherwise requires:
CANNABIS. Includes marijuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its naturally occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.
CONTROLLED A drug, substance, immediate precursor, or synthetic drug in the SUBSTANCES. schedules of Article II of the "Illinois Controlled Substance Act" 720 ILCS 570/100 et seq.
DELIVER or The actual, constructive or attempted transfer of possession, DELIVERY. with or without consideration, whether or not there is an agency relationship.
DRUG All equipment, products and materials of any kind which are PARAPHERNALIA. used, or intended for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging,
~4~
Page 5 of 13
A21. Page 302 of 574 152-O-19
repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body cannabis or a controlled substance in violation of the "Cannabis Control Act" 720 ILCS 550/1 et seq. or the "Illinois Controlled Substances Act" 720 ILCS 570/100 et seq. It includes but is not limited to:
(A) Kits used or intended for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or cannabis or from which a controlled substance or cannabis can be derived;
(B) Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing cannabis or controlled substances;
(C) Isomerization devices used or intended for use in increasing the potency of any species of plant which is cannabis or a controlled substance;
(D) Testing equipment used or intended for use in identifying or in analyzing the strength, effectiveness or purity of cannabis or controlled substances;
(E) Scales and balances used or intended for use in weighing or measuring cannabis or controlled substances;
(F) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose used or intended for use in cutting cannabis or controlled substances;
(G) Separation gins and sifters used or intended for use in removing twigs and seeds from, or in otherwise cleaning or refining cannabis;
(H) (G) Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding cannabis or controlled substances;
(I) (H) Capsules, balloons, envelopes and other containers used, or intended for use, in packaging small quantities of cannabis or controlled substances;
(J) (I) Containers and other objects used, or intended for use in
~5~
Page 6 of 13
A21. Page 303 of 574 152-O-19
storing or concealing cannabis or controlled substances;
(K) (J) Hypodermic syringes, needles and other objects used, or intended for use, in parenterally injecting cannabis or controlled substances into the human body;
(L) (K) Objects used, or intended for use, in ingesting, inhaling or otherwise introducing marijuana, or cocaine, hashish, or hashish oil into the human body, such as:
1. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls;
2. Water pipes;
3. Carburetion tubes and devices;
4. Smoking and carburetion masks;
5. Roach clips, meaning objects used to hold burning material such as marijuana cigarette that has become too small or too short to be held in the hand;
6. Miniature cocaine spoons and cocaine vials;
7. Chamber pipes;
8. Carburetor pipes;
9. Electric pipes;
10. Air-driven pipes;
11. Chillums;
12. Bongs;
13. Ice pipes or chillers;
In determining whether an object is drug paraphernalia, a court should consider, in addition to all other logically relevant factors, the following:
~6~
Page 7 of 13
A21. Page 304 of 574 152-O-19
(A) Statements by an owner or by anyone in control of the object concerning its use;
(B) Prior convictions, if any, of an owner or of anyone in control of the object, under any State or Federal law relating to any controlled substance or cannabis;
(C) The proximity of the object in time and space to a direct violation of this Chapter;
(D) The proximity of the object to cannabis or controlled substances;
(E) The existence of any residue of cannabis or controlled substances on the object;
(F) Direct or circumstantial evidence of the intent of an owner or anyone in control of the object, to deliver it to persons whom he/she knows intend to use the object to facilitate a violation of the "Cannabis Control Act" 720 ILCS 550/1 et seq., or the "Illinois Controlled Substances Act" 720 ILCS 570/100 et seq.; the innocence of an owner or of any one in control of the object as to a direct violation of the "Cannabis Control Act," 720 ILCS 550/1 et seq., or the "Illinois Controlled Substances Act," 720 ILCS 570/100 et seq., shall not prevent a finding that the object is used or intended for use as drug paraphernalia.
(G) Instructions, oral or written, provided with the object concerning its use;
(H) Descriptive materials accompanying the object which explain or depict its use;
(I) National and local advertising concerning its use;
(J) The manner in which the object is displayed for sale;
(K) Whether the owner or anyone in control of the object is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
(L) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;
~7~
Page 8 of 13
A21. Page 305 of 574 152-O-19
(M) The existence and scope of legitimate uses for the object in the community;
(N) Expert testimony concerning its use.
MANUFACTURE. The production, preparation, propagation, compounding, conversion or processing of cannabis or controlled substances, either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of cannabis or controlled substances or labeling of its container, except that this term does not include:
(A) By an ultimate user, the preparation or compounding of a controlled substance for his/her own use; or
(B) By a practitioner, or his/her authorized agent under his/her supervision, the preparation, compounding, packaging or labeling of a controlled substance;
1. As an incident to his/her administering or dispensing of a controlled substance in the course of his/her professional practice; or
2. As an incident to lawful research, teaching or chemical analysis and not for sale.
PERSON. Any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other entity.
PRODUCE or Planting, cultivating, tending or harvesting. PRODUCTION.
8-14-3. - UNLAWFUL TO USE OR POSSESS DRUG PARAPHERNALIA.
It is unlawful for any person to use or to possess with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body cannabis or a controlled substance in violation of the "Cannabis Control Act," 720 ILCS 550/1 et seq., or the "Illinois Controlled Substances Act" 720 ILCS 570/100 et seq.
~8~
Page 9 of 13
A21. Page 306 of 574 152-O-19
8-14-4. - UNLAWFUL TO DELIVER OR MANUFACTURE DRUG PARAPHERNALIA WITH INTENT TO DELIVER.
It is unlawful for any person to deliver, possess with intent to deliver or manufacture drug paraphernalia knowing that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body cannabis or a controlled substance in violation of the "Cannabis Control Act," 720 ILCS 550/1 et seq., or the "Illinois Controlled Substances Act" 720 ILCS 570/100 et seq.
8-14-5. - UNLAWFUL TO ADVERTISE DRUG PARAPHERNALIA.
It is unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement knowing that the purpose of the advertisement taken as a whole is to promote the sale of objects used or intended for use as drug paraphernalia.
8-14-6. - PENALTY.
Violation of any Section of this Chapter will constitute a civil law punishable by a fine of two hundred dollars ($200.00).
8-14-7. - SEVERABILITY.
If any provision of this Chapter or the application thereof to any person or circumstance is held invalid the invalidity does not affect other provisions or applications of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are severable.
SECTION 3: City Code Title 9, Chapter 5, Section 10, “Alcoholic
Beverages; Consumption/ Possession Public Property,” of the Evanston City Code of
2012, as amended, is hereby further amended to read as follows:
9-5-10. - ALCOHOLIC BEVERAGES AND CANNABIS; CONSUMPTION/ POSSESSION PUBLIC PROPERTY.
Except as otherwise provided below, no person shall within the corporate limits of the City.
(A) Transport: Transport any alcoholic beverage or cannabis products within the passenger area of any motor vehicle except in the original container and with the seal unbroken.
~9~
Page 10 of 13
A21. Page 307 of 574 152-O-19
(B) Consumption In Vehicles: Consume or have on his/her person open containers of alcoholic beverages or cannabis products in or on any part of any motor vehicle.
(C) Consumption In Public:
1. Consume or have on his/her person or in or about personal property open containers of alcoholic beverages or cannabis products in public buildings, parks, beaches, highways, streets, alleys, sidewalks, parkways and public parking lots. Notwithstanding any of the foregoing, service of alcoholic beverages at a sidewalk cafe authorized for such service pursuant to Subsection 7-2-6(D) of this Code and possession and consumption of alcoholic beverages by patrons at such cafes shall be permitted.
2. Have on his/her person or in or about personal property containers of alcoholic beverages or cannabis products in public buildings, parks, or beaches. 3. Except for patrons of the Canal Shores Golf Course or individuals attending a special event on the golf course, persons cannot Cconsume or have on his/her person or in or about personal property containers of alcoholic beverages on the Canal Shores Peter N. Jans Community Golf Course. This Section shall not be construed to prohibit the consumption or possession of alcoholic beverages within an area bounded by the north wall and the east wall of the American Legion building at 1030 Central Street and by the intersection of a line one hundred feet (100') west of the American Legion building and a line one hundred feet (100') south of said building, provided that appropriate State and City liquor licenses are in effect for the American Legion building premises. Within sixty (60) days of the passage of this Subsection (C)3, the golf course will post signage advising of the boundaries within which possession and consumption of alcoholic beverages are permitted. Posting and maintenance of said signs are the responsibility of the golf course.
(D) Violation: Any person found violating any of the provisions of this Section shall be fined not less than five hundred dollars ($500.00), nor more than one thousand dollars ($1,000.00) for each offense. It shall not be a defense to any citation written for any violation of any provision of this Section that the containers of alcoholic beverages were empty at the time the citation was issued.
This Section shall not be construed to prohibit the possession or consumption of alcoholic beverages within public buildings, on streets, alleys, sidewalks, parkways and public parking lots in conjunction with an authorized event where
~10~
Page 11 of 13
A21. Page 308 of 574 152-O-19
such event and use of said alcoholic beverages has been disclosed in writing to and authorized by the City Manager or his/her designee.
This Chapter shall not be construed as conflicting with or limiting enforcement of the Illinois Cannabis Control Act, 720 ILCS 550/, the Compassionate Use of Medical Cannabis Program Act, 410 ILCS 130/1, or the Illinois Cannabis Regulation and Tax Act 410 ILCS 705/, as amended from time to time.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 5: If any provision of this ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 6: Ordinance 152-O-19 shall be in full force and effect after its
passage and approval.
SECTION 7: The findings and recitals contained herein are declared to
be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~11~
Page 12 of 13
A21. Page 309 of 574 152-O-19
~12~
Page 13 of 13
A21. Page 310 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Paul Zalmezak, Economic Development Manager CC: Johanna Leonard, Community Development Director Subject: Ordinance 141-O-19, Authorizing the City Manager to Execute a Lease of City-Owned Real Property Located at 633 Howard Street with 633 Outpost, LLC, doing business as “Estación” Date: November 11, 2019
Recommended Action: The Economic Developmentttee Commi recommends adoption - O -19 of Ordinance 141 authorizing the City Manager to negotiate the lease of City-owned property located at 633 Howard Street. Alderman Rainey requests suspension of the rules for introduction and action at the November 11, 2019 City Council meeting.
Council Action: For Introduction and Action
Summary: Marcos Rivera, General Manager and owner of Libertad Restaurant in Skokie, and business partner Arturo Orozco, Jr. have submitted a letter of intent and proposal to open a new casual restaurant in the City-owned property located at 633 Howard Street to be called Estación. The space was most recently occupied by Café Coralie, and previously the Evanston Police Outpost.
Mr. Rivera had expressed interest in a Howard Street expansion several years ago, but put the plans on hold while focusing on other business interests. Recently, Mr. Rivera and partner Piloto Nieves announced plans to open Zentli, a full service restaurant with a focus on Mexican culture and art in the recently closed Curt’s Café south location on Dempster Street just east of Dodge Avenue.
Mr. Rivera plans to offer breakfast, lunch and dinner, with weekend brunch. The restaurant will use the kitchen equipment installed by the previous tenant, but will make improvements to the space to increase its appeal to a broader clientele. He intends to be open in time for New Year’s Day 2020 Brunch.
A22. Page 311 of 574
Mr. Rivera is interested in purchasing the property and sought 100% of the rent rebated as a contribution to purchase price to be established in the future. However, staff recommends a maximum rebate of $39,600 - less than 50% of rent paid. Mr. Rivera is also seeking a $10,000 tenant improvement contribution to improve the space for a full service restaurant. The draft lease and terms are attached and summarized as follows: $2,500 monthly rent. No abatement period. • Option to purchase with six months’ notice within first 36 months • Rebate up to $39,600 toward purchase of property • Tenant improvement allowance of $10,000 to improve space/create additional dining room space • Tenant pays all property taxes and utilities - staff will immediately notify the Cook County Assessor Background: Upon Café Coralie’s lease termination on July 7, 2019, City staff placed a For Lease/Sale sign (attached) in the storefront windows resulting in numerous inquiries. Additional inquiries, including Mr. Rivera’s, came as a result of local media coverage of the previous tenant’s closure.
Mr. Rivera’s unsolicited proposal fulfills the long desired goal of an all-day restaurant concept on Howard Street, unlike any proposal received in recent years. His success with Libertad suggests he and his partners are capable of success at 633 Howard.
According to Section 1-17-4-1 of the City Code, the City Council may lease real estate for any term not exceeding ninety-nine (99) years when, in its opinion, use of such real estate by the City is no longer necessary, appropriate, required for the use of, profitable to, or for the best interest of the City. On all such leases, this power shall be exercised by an ordinance passed by a two-thirds vote of the elected Aldermen of the City then holding office at any regular or any special meeting called for that purpose.
Staff has conducted initial due diligence including credit verification and contacted Village of Skokie staff to learn about Mr. Rivera’s relationship with the community and Skokie grant performance.
Legislative History: Economic Development Committee recommended approval 5-0 on September 25, 2019.
Attachments: 633 Howard For Lease Window Sign 141-O-19 Authorizing Lease Agreement at 633 Howard St 633 Howard Street Proposed Libertad Draft Terms 633 Howard lease 2019 DRAFT
Page 2 of 30
A22. Page 312 of 574
RESTAURANT / CAFÉ SPACE FOR SALE OR RENT CALL 847.448.8013 OR EMAIL [email protected]
Page 3 of 30
A22. Page 313 of 574 10/16/2019
141-O-19
AN ORDINANCE
Authorizing the City Manager to Execute a Lease of City-Owned Real Property Located at 633 Howard Street with 633 Outpost, LLC, doing business as “Estación”
WHEREAS, the City of Evanston owns certain real property located at 633
Howard Street, Evanston, Illinois 60202, which is improved with a single story 2,643
square foot building and the total property square footage is 3,206 square feet (the
“Property”); and
WHEREAS, 633 Outpost, LLC seeks to open a commercial restaurant in
southeast Evanston; and
WHEREAS, the Parties have negotiated a long-term lease of the Property
as a commercial restaurant to be called “Estación”; and
WHEREAS, the City Council has determined that the Property is not
necessary to future City operations and leasing the Property to 633 Outpost, LLC, is in
the City’s best interests,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The foregoing recitals are hereby found as fact and
incorporated herein by reference.
SECTION 2: Pursuant to Subsection 1-17-4-1 of the Evanston City Code
of 2012, as amended (the “City Code”), the City Manager is hereby authorized and
directed to execute, on behalf of the City of Evanston, a long term lease agreement with
Page 4 of 30
A22. Page 314 of 574 141-O-19
an initial term of five (5) years and one (1), two (2)-year option to renew the lease
agreement, between the City of Evanston and 633 Outpost, LLC, with an option to
purchase after three (3) years. The Lease Agreement shall be in substantial conformity
with the Lease Agreement attached hereto as Exhibit “1” and incorporated herein by
reference.
SECTION 3: Pursuant to Subsection 1-17-4-2-(B) of the Evanston City
Code, 2012, as amended (the “City Code”), an affirmative vote of two-thirds (⅔) of the
elected Aldermen is required to accept the recommendation of the City Manager on the
lease agreement authorized herein.
SECTION 4: If any provision of this ordinance or application thereof to
any person or circumstance is ruled unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 5: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 6: The findings and recitals contained herein are declared to be
prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
SECTION 7: This ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
~2~ Page 5 of 30
A22. Page 315 of 574 141-O-19
Ayes: ______
Nays: ______
Approved:
Introduced:______, 2019 ______, 2019
Adopted:______, 2019 ______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle Masoncup, Corporation Counsel
~3~ Page 6 of 30
A22. Page 316 of 574 141-O-19
EXHIBIT 1
LEASE AGREEMENT
~4~ Page 7 of 30
A22. Page 317 of 574 633 Howard Street Proposed Lease to Own Terms - September 17, 2019
Property City of Evanston-owned commercial property located at 633 Howard Street.
Use Food establishment serving breakfast, brunch, lunch, and dinner
Space As-is, 3,000 Sq. Ft. +/- commercial space , Zoned B3
Terms & Conditions Purchase the building, on a lease to own basis.
Five year base term with tenant option to purchase after three years, with six months prior notice of intent to exercise purchase option. Purchase price to be determined when option is exercised
During the term of the Lease, if Landlord is presented with any offer to purchase the property, Tenant shall be granted a right of first refusal to match any accepted offer and a 45 day period to secure financing from the date the offer is presented to Tenant.
Rent $2,500 month (equates to $10 per square foot based on estimated 3,000 sq. ft. space) totaling $90,000 over 36 months.
Tenant pays all property taxes and utilities
Up to $39,600, toward purchase of building.
Landlord agrees to contribution of $10,000 towards betterments & improvements, in order to tear down existing walls and create additional dining room space.
Furniture, Fixtures, and Equipment Below is a list of furniture, fixtures and equipment included with the space. Furniture, fixtures and equipment to remain property of the Landlord during term of lease. The space is furnished with two single-user male and female ADA bathrooms, HVAC, natural gas, and electrical service.
● One Compartment Sink ● Three Compartment Sink ● Hand Sink ● Splash Mount Pre Rinse ● Display Case Refrigerated ● Condensate Hood
Page 8 of 30
A22. Page 318 of 574 ● Upblast Exhaust Hood ● Soft Dough Hopper ● Chandeliers ● Walk in Cooler ● Counter Tops ● Double Gas Convection Oven ● 10 Marble Top Tables ● 3ft Grab and Go Cooler ● Ceiling Tile ● Proofer
Negotiation The Parties agree to enter into negotiations under the Terms and Conditions of this Letter to determine whether this business transaction is viable for both Parties. Both Parties agree not to enter into negotiations or solicit information or negotiations with any third party upon approval of Evanston City Council authorizing this negotiation until the term of negotiations ends either under the Terms and Conditions of this Letter or by a mutual agreement by the Parties that negotiations have ended.
Confidentiality In the event that any confidential information is exchanged between the Parties, resulting from negotiations under the Terms and Conditions of the Letter, both Parties shall agree to make any necessary efforts to keep all information confidential, subject to the Freedom of Information Act
Time The Parties shall make all reasonable efforts to finalize a lease to own agreement for 633 Howard Street within (30) days of Evanston City Council authorization of lease negotiations with January 2020 open date.
Governing Law All matters arising from this Letter and any subsequent negotiations shall be governed by the laws of the State of Illinois.
Page 9 of 30
A22. Page 319 of 574
L E A S E
THIS LEASE AGREEMENT is made this ___ day of ______, 2019, by and between CITY OF EVANSTON (“Landlord”), an Illinois municipal corporation and 633 Outpost, LLC, an Illinois limited liability company, d/b/a “Estación”. (“Tenant”).
W I T N E S S E T H:
1. PROPERTY
(a) Property. Landlord is the fee simple owner of certain real property at 633 Howard Street, Evanston, Illinois 60202, legally described in Exhibit A attached hereto and incorporated herein (the “Property”). The Property has a total of approximately 3,206 square feet of land, improved with a 2,649 square foot one-story building (“Building”). Landlord does hereby lease the Premises to Tenant, for Tenant’s exclusive use and control, together with all appurtenances thereto, pursuant to the terms and conditions of this Lease. During this Lease Term, the Property and Building will be collectively referred to as “Premises”.
(b) Parking. This Lease does not include the exclusive use of any on-street parking. There are 3 parking spaces in the back of the Building off of the alley for Tenant’s exclusive use for employee parking and loading space. Tenant is responsible for enforcing the exclusive use of the Parking spaces and contacting a tow company, if appropriate.
2. TERM
(a) Primary Term. Subject to the provisions of this Lease, the “Primary Term” must be for 5 years (60 months) and must commence on November 1, 2019 and expire on October 31, 2024.
(b) Extended Lease Term. Provided Tenant is not otherwise in default beyond any applicable cure period, replaced or otherwise amended such that Tenant is still permitted to conduct the Permitted Use from the Premises, Tenant may request one extension of the Lease (“Lease Extension”) for two (2) years, upon the same terms, covenants, and conditions, except for the Rental Rate which will increase according to the scheduled outlined in Paragraph 3. The Lease Extension may be requested by Tenant delivering to Landlord written notice of such request, not less than one hundred twenty (120) days prior to the expiration of the term. The exercise by Tenant of the Lease Extension must not be deemed to impose upon Tenant any duty or obligation to renew for any further period of time. The Primary Term together with the Lease Extension is referred to herein collectively as the “Term”.
(c) Option to Purchase.
(i) Option to Purchase. Tenant initially is a Tenant of the Property which is owned by the Landlord. Tenant has an option to purchase the Building and the Property after three (3) years, so long as the Tenant is in compliance with the terms of this Agreement at the time the option to purchase is exercised (the “Option to Purchase”). Tenant must submit
Page 10 of 30
A22. Page 320 of 574
written notification to Landlord not less than six (6) months prior to exercising its Option to Purchase. The provisions of this Lease relating to taking the Property “As Is” (§ 4(a)) and waiver of claims arising under Environmental Laws (§ 27(d)) shall be a condition of purchase and shall survive closing.
(ii) Purchase Price. The purchase price of the Building and the Property shall be a negotiated price between the Parties, with each Party relying on its own research and valuations, including the appraisal(s) of the Building and Property. If the Parties cannot agree upon a purchase price, then: (a) each Party shall select its own appraiser; (b) the Parties’ appraisers shall select a third appraiser; (c) each of the appraisers shall render an appraisal of the fair market value of the combined Building and Property; and (d) the purchase price will be the middle appraised fair market value. A closing will occur upon the Parties executing a purchase and sale contract (“Building and Property Purchase Agreement”) and the subsequent payment of the Purchase Price at a Closing. Tenant shall be given credit towards the purchase price for 44% of the total rental payments made to Landlord at the time of closing with a maximum rebate of $39,600 toward purchase of the Building and Property.
(iii) Delinquencies. Should the Tenant have incurred delinquencies in paying rent with Landlord, the Tenant must pay off those delinquencies prior to any offer to exercise its Option to Purchase.
(iv) Sale to Third Parties. During the term of the Lease, if Landlord is presented with any offer to purchase the Property, Tenant shall be granted a right of first refusal to match any accepted offer and a forty-five (45) day period to secure financing from the date the offer is presented to Tenant. If Landlord sells the Property to a third party which has no legal affiliation to the Tenant, as a condition of sale, the new purchaser agrees to be bound by the terms of this Agreement and must have no right to evict Tenant, to vary the terms of this Agreement or to terminate this Lease under any terms other than those contained herein. The third party must stand in the shoes of Landlord and must honor all obligations of Landlord and all rights of Tenant as provided for herein.
3. RENT
(a) Fixed Rent. The tenant’s first rent payment is due on January 1, 2020 (“Rent Commencement Date”), sixty (60) days after the Lease Commencement Date of November 1, 2019, and every month thereafter due on or before the first of the month. Subject to the terms of this Lease, Tenant agrees to pay to Landlord for lease of the Premises the Rent described below: For Lease Year One, Tenant must pay to Landlord the sum of Twenty Five Thousand Dollars ($25,000) in monthly installments of Twenty Five Hundred Dollars ($2,500). In Lease Years Two, Three, Four, and Five, Tenant must pay to Landlord the sum of Thirty Thousand Dollars ($30,000) in monthly installments of Twenty Five Hundred Dollars ($2,500). For every Lease Year subsequent to Lease Year One, the annual rent shall be increased in an amount equal to the Consumer Price Index for that Lease Year. The rent specified in this paragraph 3(a) as adjusted pursuant to paragraph 3(b) below must be deemed “Fixed Minimum Rent” for purposes of this Lease.
Page 11 of 30
A22. Page 321 of 574
(b) The Fixed Minimum Rent set forth in Section 3(a) above must be adjusted at the beginning of each year during the Term, in an amount equal to the Consumer Price Index for that year. In no event must adjustments be made based on Tenant’s improvement of the property.
(c) Late Fee and Interest. In the event any sums required hereunder to be paid are not received by Landlord on or before the date the same are due, interest must accrue on all past due sums at an annual rate equal to the lesser of six percent (6.0%) per month. Such interest is deemed Additional Rent and a Tenant obligation to pay.
(d) Time and Place of Payment. Tenant must pay to Landlord Fixed Minimum Rent in advance, in equal monthly installments, and without prior notice, setoff (unless otherwise expressly permitted herein) or demand, except as otherwise specifically provided herein, on or before the fifth (5th) day of each calendar month during the Term hereof to:
City of Evanston Attn: Collector’s Office 2100 Ridge Avenue Evanston, IL 60201
4. TENANT IMPROVEMENT:
(a) Tenant accepts the Premises in an “As-Is” Condition. The Tenant shall construct all renovations pursuant to a building permit, Tenant is responsible for submitting for and receiving approval for all necessary permit(s). Attached as Exhibit B is the Site Plan of anticipated Interior Build Out for the Premises.
(b) Landlord will provide Tenant a tenant improvement allowance to use to pay for the renovations to the Premises up to Ten Thousand Dollars ($10,000.00) (the “Tenant Improvement Allowance”). Tenant will process the invoices from the contractor and the subcontractors and submit for payment to the Landlord. The Landlord will review the invoices and submit payment directly to the contractors after receipt of a lien waiver.
(c) Improvement Allowance Payment Requirements: Disbursement payments shall NOT be paid out until: ● City Council has approved the Agreement and the Agreement is executed; and ● Invoices from the contractor are received and reviewed by City staff; and ● Contractor issues partial lien waivers for the invoices subject to the Tenant Improvement Allowance reimbursement request; and ● The Chief Financial Officer or his designee will not issue the disbursement to the Tenant if there is any violation of any law, ordinance, code, regulation, or Agreement term.
(d) If Tenant defaults on the terms and conditions of this Agreement or terminates this Agreement for any reason other than the Landlord’s willful misconduct which caused the Tenant’s departure, the Tenant Improvement Allowance must be reimbursed in full within 30 days of vacating the Premises. Furthermore, the improvements are the property of the City of Evanston
Page 12 of 30
A22. Page 322 of 574
with no right of reimbursement to the Tenant for the Tenant Improvements which were paid for by the City of Evanston.
5. FIXTURES AND EQUIPMENT
All trade fixtures and equipment installed by Tenant in or on the Premises (including kitchen equipment, tables and chairs, registers, other equipment, shelving and signs) will remain the property of Tenant and Tenant may remove the same or any part thereof at any time prior to or at the expiration or earlier termination of this Lease. Tenant must repair at its own expense any damage to the Premises caused by the removal of said fixtures or equipment by Tenant. This provision must expressly survive the termination or expiration of this Lease. The fixtures and equipment owned by the Landlord on the Effective Date will remain the property of the Landlord at the conclusion of the Term, these items are listed on Exhibit C. If Tenant exercises the Option to Purchase outlined in Paragraph 2(c), Tenant may purchase the items following valuation of each item.
6. USE OF PREMISES
(a) Permitted Use. Tenant must have the right, subject to applicable Federal, State and local laws, including Environmental Laws (as hereafter defined) and the terms of this Lease, to use the Premises for the following purpose(s): to operate a commercial restaurant and uses incidental thereto to operation of a commercial restaurant, and no part of the Property will be used for any other purpose without the prior written consent of the City (herein collectively “Permitted Use”).
(b) Tenant Exclusive Use of Premises. Landlord covenants and agrees that it has no rights to use, modify, alter or lease any portion of the Building or Property other than as expressly provided in this Lease.
7. MAINTENANCE
(a) Maintenance, Repair and Replacement Responsibilities of Landlord: Landlord is responsible for all structural and load bearing columns, roof, delivering a working HVAC system and will pay for major repairs to the HVAC system, interior sprinkler and fire safety system within the Building, windows and all soffits, and all structural elements of the Building. Landlord will not be responsible for major repairs that arise out of Tenant’s poor maintenance of the HVAC, interior sprinkler and fire safety systems. The Parties will conduct annual inspections to ensure the property is maintained in good working order.
(b) Maintenance and Repair Responsibilities of Tenant: Tenant is responsible for all maintenance and repair responsibilities that are not outlined in Paragraph 7(a) above, including but not limited to: exterior lighting, signage, bathroom fixtures and associated plumbing and sewer pipes, kitchen fixtures and associated plumbing, bar equipment, lighting equipment and electrical systems, security systems, telecommunications systems and other non-structural elements. Tenant must maintain, at Tenant’s expense, the HVAC system as required by HVAC system manufacturer to maintain system performance and warranty requirements (at Tenant’s expense). Tenant is vested with control over the HVAC system on a daily basis and will not contact the City of Evanston Facilities team for maintenance, minor repairs or emergency service. Tenant is also responsible for
Page 13 of 30
A22. Page 323 of 574
ensuring the interior sprinkler and fire safety system is in good working order, with annual inspections required and ensure that all repair work needed is performed. Copies of testing and inspection paperwork should be distributed to Landlord’s Facilities Management Manager, Sean Ciolek, for proof of compliance.
(c) All refuse associated with Tenant’s use must be placed in appropriate containers for disposal. Tenant cannot dispose of construction building materials in the standard refuse containers and must arrange for special pick-ups and containers for said materials. A refuse container for regular refuse will be located at the Property in reasonable proximity to the Building. Tenant will contract to have trash hauled from such container with reasonable frequency.
(d) Tenant is responsible for snow, ice removal and leaf removal and general upkeep of the exterior of the Building along the sidewalk and other carriage walks to and from the Building. The snow must be moved to a suitable area on the Premises to allow for use of the sidewalk. .
(e) The Tenant will at all times maintain all of the Property in a clean, neat and orderly condition. The Tenant will not use the Property in a manner that will violate or make void or inoperative any policy of insurance held by the Landlord.
(f) Tenant must yield the Premises back to Landlord, upon the termination of this Lease, whether such termination must occur by expiration of the Term, or in any other manner whatsoever, in the same condition of cleanliness and repair as at the date of the execution hereof, loss by casualty and reasonable wear and tear accepted. Tenant must make all necessary repairs and replace broken fixtures with material of the same size and quality as that broken. If, however, the Premises must not thus be kept in good repair and in a clean condition by Tenant, as aforesaid, Landlord may enter the same, or by Landlord’s agents, servants or employees, without such entering causing or constituting a termination of this Lease or an interference with the possession of the Premises by Tenant, and Landlord may replace the same in the same condition of repair and cleanliness as existed at the date of execution hereof, and Tenant agrees to pay Landlord, in addition to the rent hereby reserved, the expenses of Landlord in thus replacing the Premises in that condition. Tenant must not cause or permit any waste, misuse or neglect of the water, or of the water, gas or electric fixtures.
(g) Tenant will keep all leasehold improvements in compliance with all laws and regulations during the entire Term of this Lease, except for repairs required of the Landlord to be made and damage occasioned by fire, wind or other causes as provided for in this Lease.
8. PAYMENT OF TAXES
(a) Definition. For purposes hereof, “Taxes” must mean real property taxes and “Assessments” must mean assessments, general and special, foreseen and unforeseen, for public improvements levied or assessed against the Premises and the improvements thereon for that portion of the Term.
(b) Payment. If the Cook County Assessor assesses taxes upon the Premises or Leasehold, the taxpayer shall be responsible for payment of any such taxes during their Lease term.
Page 14 of 30
A22. Page 324 of 574
9. DAMAGE AND DESTRUCTION
(a) Casualty. If the Premises must be damaged by fire or other casualty by an Act of God (“Casualty”), Landlord must, within one hundred eighty (180) days after such damage occurs (subject to being able to obtain all necessary permits and approvals, including, without limitation, permits and approvals required from any agency or body administering environmental laws, rules or regulations, and taking into account the time necessary to effectuate a satisfactory settlement with any insurance company) repair such damage at Landlord’s expense and this Lease must not terminate. If the foregoing damage is due to the negligence or willful misconduct of Tenant, then Landlord must look first to the insurance carried by Tenant to pay for such damage. Notwithstanding (i) any other provisions of the Lease to the contrary, and (ii) any legal interpretation that all improvements become part of the realty upon being attached to the Premises, following a Casualty, the Landlord must be responsible only for restoring the Premises to building standard levels of improvement at the time of execution of this Lease and must not include the tenant improvements completed and installed following execution of this Lease, and the tenant must be responsible for insuring and replacing the above building standard tenant improvements or betterments that made the Premises “customized” for Tenant’s use. Customized improvements include, but not limited to: any and all theatre equipment and fixtures, alarm censored doors, wood flooring, and custom cabinetry. Except as otherwise provided herein, if the entire Premises are rendered untenantable by reason of any such damage, or if Tenant cannot utilize Property and Building for its intended use by reason of any damage of any size or scope whatsoever, then all Fixed Minimum Rent and Additional Rent must abate for the period from the date of the damage to the date the damage is repaired, and if only a part of the Premises are so rendered untenantable but the damage does not prevent Tenant from utilizing the Property for its Permitted Use, the Fixed Minimum Rent and Additional Rent must abate for the same period in the proportion that the area of the untenantable part bears to the total area of the Premises; provided, however, that if, prior to the date when all of the damage has been repaired, any part of the Premises so damaged are rendered tenantable and must be used or occupied by or through Tenant, then the amount by which the Fixed Minimum Rent and Additional Rent abates must be apportioned for the period from the date of such use or occupancy to the date when all the damage has been repaired.
(b) Repair to Leasehold Improvements. Landlord must have no obligation to repair damage to or to replace any leasehold improvements, Tenant’s personal property or any other property located in the Premises, and Tenant must within sixty (60) days after the Premises is sufficiently repaired so as to permit the commencement of work by Tenant, commence to repair, reconstruct and restore or replace the Premises (including fixtures, furnishings and equipment) and prosecute the same diligently to completion. Notwithstanding the foregoing, Tenant’s Fixed Minimum Rent and Additional Rent must continue to be abated as provided in Section 9(a) above, until the Property is once again suitable for its Permitted Use.
(c) Termination Right. Notwithstanding any provision contained herein to the contrary, Tenant must have the option and right to terminate this Lease if, (a) the Premises must be so damaged by Casualty that it cannot be fully repaired within one hundred eighty (180) days after the date of
Page 15 of 30
A22. Page 325 of 574
damage; (b) during the last eighteen (18) months of the Term of this Lease, the Premises is damaged by a Casualty in amount exceeding thirty-three and one-third percent (33.33%) of the square footage of the Premises or a lesser amount (no matter how small) that leaves Tenant unable to utilize the Premises for their Permitted Use, provided that, in such event, such termination of this Lease must be effected by written notice within ninety (90) days of the happening of the Casualty causing such damage. This provision must expressly survive the termination or expiration of this Lease.
10. INSURANCE
(a) Tenant Insurance Obligations: Tenant agrees to maintain a policy or policies of commercial general liability insurance written by an insurance carrier rated at least Class A or better in Bests Key Rating Guide of Property-Casualty Insurance Companies and licensed to do business in the state in which the Premises is located which must insure against liability for injury to and/or death of and/or damage to personal property and the Premises of any person or persons, with policy limits of not less than $2,000,000.00 general aggregate coverage and $1,000,000 per single occurrence for any injury to or death of any number of persons or for damage to property of others not arising out of any one occurrence. Tenant’s policy must cover the Premises, its personal property and the business operated by Tenant and must name the City of Evanston as an additional insured.
(b) Landlord Insurance Obligations: Landlord is self-insured up to $1.25 Million and agrees to maintain an excess policy or policies of commercial general liability insurance over the self-insured limit written by an insurance carrier with a rating at least Class A or better in the Bests Key Rating Guide and licensed to do business in the state in which the Premises is located which must insure against liability for injury to and/or death of and/or damage to the Premises , with policy limits of not less than $3,000,000.00 combined single limit.. Landlord’s policy must name Tenant as an additional insured. Subject to the terms of Paragraph 9(a), Landlord must maintain fire and casualty insurance covering the entire Premises and any alterations or improvements made by Landlord thereto in an amount not less than their full replacement cost from time to time during the Term, providing protection against any peril included within the classification of “all risks”.
(c) Within thirty (30) days after written request, each of the parties agrees to deliver to the other a certificate of insurance as evidence that the policies of insurance required by this Section 10 have been issued and are in effect.
(d) Waiver of Subrogation. Neither Landlord nor Tenant must be liable to the other or to any insurance company (by way of subrogation or otherwise) insuring the other party for any loss or damage to any building, structure or other tangible property, or any resulting loss of income for property or general liability losses, even though such loss or damage might have been occasioned by the acts or omissions of such party, its agents, contractors or employees. Landlord or Tenant must look exclusively to the proceeds of insurance carried by it or for its benefit in the event of any damage or destruction to its property located on the Premises. Notwithstanding anything to the contrary contained herein, Landlord and Tenant hereby release and waive any and all rights of recovery, claim, action or cause of action, against the other, or its respective directors, shareholders, officers, agents, invitees and employees, for any loss or damage that may occur to the property or the equipment, fixtures and improvements comprising any part of the Premises, by reason of fire, the elements, or any other cause which could be insured against under the terms of an “all risk” fire
Page 16 of 30
A22. Page 326 of 574
insurance policy, in the state where the Premises is located, regardless of cause or origin, including negligence of the parties hereto, their agents, officers, invitees and employees. Subject to the provisions of the Lease, no insurer of a party hereunder must ever hold or be entitled to any claim, demand or cause of action against Tenant by virtue of a claim of loss paid under any such insurance policies, whether such insurer’s claim be in the nature of subrogation or otherwise. The waivers provided pursuant to this paragraph must not operate to the extent that they would void coverage under the provisions of any policy of insurance.
11. INDEMNIFICATION
(a) Indemnification of Landlord. Except as otherwise provided in this Lease, and except to the extent caused by the negligence of Landlord, or its agents, employees or contractors, or by the breach of this Lease by Landlord, Tenant must protect, defend, indemnify and save Landlord and its officers, directors, agents, attorneys, and employees harmless from and against any and all obligations, liabilities, costs, damages, claims, attorneys fees and expenses of whatever nature arising from (i) any matter, condition or thing that occurs in the Premises, which is not the result of Landlord’s negligence or willful misconduct or an Act of God or an act of a third party, (ii) any negligence or willful misconduct of Tenant, or its agents, employees or contractors, or its sub-lessee; or (iii) Landlord’s breach occasioned wholly or in part by any act, omission of Tenant, its agents, employees, contractors or servants. The provisions of this Section must survive the expiration or earlier termination of this Lease only with respect to any damage, injury or death occurring before such expiration or earlier termination.
(b) Indemnification of Tenant. Except as otherwise provided in this Lease, and except to the extent caused by the negligence of Tenant, or its agents, employees or contractors, or by the breach of this Lease by Tenant, Landlord must protect, defend, indemnify and save Tenant and its officers, or employees from and against any and all obligations, liabilities, costs, damages, claims and expenses of whatever nature arising from any act, omission or negligence of Landlord, its agents, employees, contractors or servants; The provisions of this Section must survive the expiration or earlier termination of this Lease only with respect to any damage, injury or death occurring before such expiration or earlier termination. The provisions of this Section do not extend to any sublessee of Tenant.
12. Intentionally Omitted.
13. UTILITIES
Tenant must pay during the Term hereof directly to the appropriate utility company or governmental agency all electric, water, gas, telephone and other public utility charges in connection with its occupancy and use of the Premises, including all costs of operating and maintaining all equipment therein, all business licenses and similar permit fees but excluding any installation costs, tap fees and/or connection fees or charges, with no right of reimbursement from the Landlord. All utilities must be paid pursuant to separate meters measuring Tenant’s consumption of utilities from the Premises, which meter fee must be Landlord’s obligation at its sole cost and expense. Landlord must not be liable to Tenant for damages or otherwise (i) if any utilities must become unavailable from any public utility company, public authority or any other person or entity supplying or
Page 17 of 30
A22. Page 327 of 574
distributing such utility, or (ii) for any interruption in any utility service (including, but without limitation, any heating, ventilation or air conditioning) caused by the making of any necessary repairs or improvements or by any cause beyond Landlord's reasonable control, and the same must not constitute a default, termination or an eviction. Tenant assures Landlord that it must arrange for an adequate supply of electricity to the Premises and it must pay for any increased voltage and any additional wiring required addressing the increased capacity. Tenant will not be responsible for the water bill until the temporary certificate of occupancy is issued.
14. COVENANTS AGAINST LIENS
Tenant covenants and agrees that it must not, during the Term hereof, suffer or permit any lien to be attached to or upon the Property or the Premises by reason of any act or omission on the part of Tenant or its agents, contractors or employees. In the event that any such lien does so attach, and (i) is not released within thirty (30) days after notice to Tenant thereof, or (ii) if Tenant has not bonded such lien within said thirty (30) day period, Landlord, in its sole discretion, may pay and discharge the same and relieve the Premises or the Property therefrom, and Tenant agrees to repay and reimburse Landlord upon demand for the amount so paid by Landlord and for other reasonable costs incurred by Landlord in discharging and relieving said lien. The Tenant will hold the Landlord harmless from all claims, liens, claims of lien, demands, charges, encumbrances or litigation arising out of any work or activity of Tenant on the Premises. Tenant will, within sixty (60) days after filing of any lien, fully pay and satisfy the lien and reimburse Landlord for all resulting loss and expense, including a reasonable attorney’s fees. Provided, however, in the event that Tenant contests any lien so filed in good faith and pursues an active defense of said lien, Tenant must not be in default of this paragraph. However, in the event of any final judgment against Tenant regarding such lien, Tenant agrees to pay such judgment and satisfy such lien within 60 days of the entry of any such judgment.
15. ASSIGNMENT AND SUBLETTING
(a) Assignment. Tenant must not have the right to assign this Lease, transfer and grant concessions or licenses (“Transfer”) in all or any part of the Premises without the Landlord’s written consent and City Council approval by Ordinance. No Transfer must relieve Tenant from any of its obligations as Tenant hereunder. Every such assignment or sublease must recite that it is and must be subject and subordinate to the provisions of this Lease, and the termination or cancellation of this Lease must constitute a termination and cancellation of every such assignment or sublease. Notwithstanding the foregoing, Landlord agrees that no merger, consolidation, corporate reorganization, or sale or transfer of Tenant's assets or stock (specifically including any inter-family or inter-company transfers), redemption or issuance of additional stock of any class, or assignment or sublease to any person or entity which controls, is controlled by or is under common control with Tenant, must be deemed a Transfer hereunder.
16. NOTICES
Any notices required to be given hereunder, or which either party hereto may desire to give to the other, must be in writing. Such notice may be given by reputable overnight delivery service (with proof of receipt available), personal delivery or mailing the same by United States mail, registered or certified, return receipt requested, postage prepaid, at the following addresses identified for Landlord
Page 18 of 30
A22. Page 328 of 574
and Tenant, or to such other address as the respective parties may from time to time designate by notice given in the manner provided in this Section.
If to the Landlord: with a copy to:
City of Evanston City of Evanston Attn: City Manager Attn: Corporation Counsel 2100 Ridge Avenue 2100 Ridge Avenue Evanston, IL 60201 Evanston, IL 60201
If to Tenant: with a copy to:
Marcos Rivera Bernard Henry 10031 Lavergne Avenue 55 W. Monroe St., Suite 3625 Skokie, IL 60077 Chicago, IL 60603
Arturo Orozco 1145 N. Jackson North Chicago, IL 60064
For purposes of this Lease, a notice must be deemed given upon the date of actual receipt thereof or the date of proof of rejection thereof if delivered by hand or overnight courier service.
17. RIGHT TO GO UPON PREMISES
Landlord hereby reserves the right for itself or its duly authorized agents and representatives at all reasonable times during business hours of Tenant upon at least forty-eight (48) hours prior notice to Tenant and accompanied by a representative of Tenant (which may be the store manager or assistant manager) to enter upon the Premises for the purpose of inspecting the same and of showing the same to any prospective purchaser or encumbrance or tenant, and for the purpose of making any repairs which Landlord is required hereunder to make on the Property, but any such repairs must be made with all due dispatch during normal construction trade working hours, and in such manner as to minimize the inconvenience to Tenant in the conduct of its business, it being agreed that in the event of a necessity of emergency repairs to be made by Landlord, Landlord may enter upon the Premises forthwith to effect such repairs. Notwithstanding the foregoing, in the event that due to an entry by or on behalf of Landlord into the Premises, Tenant’s use is materially interfered with and Tenant, from the standpoint of prudent business management, cannot open and operate the Premises for business for two (2) consecutive days, all Fixed Minimum Rent and other charges payable by Tenant hereunder must equitably abate commencing after such second (2nd) day, and continuing until such repairs are completed, unless such entry is required as a result of Tenant’s negligence or intentional misconduct.
18. DEFAULT
(a) Tenant Default.
Page 19 of 30
A22. Page 329 of 574
(i) Events of Default. Including, but not limited to, the following events must be deemed to be an “event of default” hereunder by Tenant subject to Tenant’s right to cure:
a. Tenant must fail to pay any item of Fixed Minimum Rent per Section 3 at the time and place when and where due and does not cure such failure within fifteen (15) business days after receipt of notice from Landlord of such failure;
b. Tenant must fail to comply with any other term, provision, covenant or warranty made under this Lease or if any of Tenant’s representations and warranties made under this Lease are determined to be untrue, either when made or at any time during the Term, by Tenant, and Tenant must not cure such failure within thirty (30) days after Landlord's written notice thereof to Tenant. In the event Tenant cannot comply with such term, provision, or warranty, within said thirty (30) day period, Tenant must not be in default if Tenant is diligently and continuously making an effort to comply with such term, provision, covenant or warranty and Tenant completes the cure of the default; or
c. Tenant must make a general assignment the benefit of creditors, or must admit in writing its inability to pay its debts as they become due or must file a petition in bankruptcy.
(ii) Remedies. Upon the occurrence of an event of default, Landlord may, so long as such default continues, as permitted by law and subject to Landlord’s obligation to use good faith efforts to mitigate damages, either:
terminate this Lease by written notice to Tenant, which written notice must specify a date for such termination at least fifteen (15) days after the date of such written termination notice and such termination must be effective as provided in such written notice unless Tenant must cure such default within such notice period, or not terminate this Lease as a result of the default of Tenant. If Tenant must fail to surrender the Premises upon such termination, Landlord may thereupon, reenter the Premises, or any part thereof, and expel or remove therefrom Tenant and any other persons occupying the same, using such means provided by law;
without terminating this Lease, Landlord may evict Tenant (by any means provided by law) and let or relet the Premises or any or all parts thereof for the whole or any part of the remainder of the Term hereof, or for a period of time in excess of the remainder of the Term hereof, and out of any rent so collected or received, Landlord must first pay to itself the expense of the cost of retaking and repossessing the Premises and the expense of removing all persons and property therefrom, and must, second, pay to itself any costs or expenses sustained in securing any new tenant or tenants (provided that such amount must not include any amounts incurred to restore the Premises to more than the condition originally delivered to Tenant), and must third, pay to itself any balance remaining, and apply the whole thereof or so much thereof as may be required toward payment of the liability of Tenant to Landlord then or thereafter unpaid by Tenant; or
pursue such other remedies as are available at law or in equity.
(b) Landlord Default. Should Landlord default in the performance of any covenant, provision, warranty, condition or agreement herein, or if any of Landlord’s representations and warranties
Page 20 of 30
A22. Page 330 of 574
made under this Lease are determined to be untrue, either when made or at any time during the Term, and such default in the case of any failure by Landlord to pay any sum required to be paid to Tenant hereunder, continues for ten (10) business days after notice thereof from Tenant, or in case of any non-monetary default, continues for thirty (30) days after receipt by Landlord of written notice thereof from Tenant (except as otherwise provided herein), or if the default of Landlord is of a type which is not reasonably possible to cure within thirty (30) days, if Landlord has not commenced to cure said default within said thirty (30) day period and does not thereafter diligently prosecute the curing of said default to completion (except as otherwise provided herein), Tenant in addition to any and all other remedies which it may have at law and/or in equity including the right to seek injunctive relief without posting a bond or the obligation to prove irreparable harm, may pay or perform any obligations of Landlord hereunder and deduct the cost thereof from each installment of annual Fixed Minimum Rent payable pursuant to the terms of this Lease; provided, however, in no event must the amount of any such deduction exceed ten percent (10%) of the Fixed Minimum Rent payable on a monthly basis; provided, further, Tenant must not have the right to terminate this Lease except as expressly permitted herein.
19. SIGNS
Tenant may apply for signage (temporary and permanent signage) for the exterior and interior of the Premises, at its own expense, in order to conduct the business of Tenant. Tenant acknowledges that there are limitations from the City of Evanston Municipal Code of 2012, as amended, and the Code governs the application process and the details regarding size, type, and number of signs and Tenant agrees to be bound by such ordinances. Landlord cannot make representations in a lease agreement that Tenant must be entitled additional signage, a certain number of signs and/or dimensions of proposed signage, because the Tenant must make an application to the Sign Review Board, as provided by Code, but Landlord will not withhold, condition or delay its consent to a sign over the new entrance to the Premises which complies with applicable laws.
20. REPRESENTATIONS AND WARRANTIES
(a) Landlord represents, warrants and covenants to Tenant that, to Landlord’s knowledge, the following is true as of the Effective Date:
(i) all of the Premises is zoned and fit for commercial purposes, and the Permitted Use is permitted under the applicable zoning designation, and that the Premises and Property are presently properly subdivided in conformity with all applicable laws and suitable for the Permitted Use;
(ii) Landlord is the fee simple owner of the Premises;
(iii) the Premises is subject to no restrictions or continuing regulations of any kind or nature whatsoever incompatible with the Permitted Use and that there are no restrictions in any agreement by which Landlord is bound (including, but not limited to, Landlord’s insurance policies) which would adversely affect Tenant’s right to use the Premises for the Permitted Use during the Term;
Page 21 of 30
A22. Page 331 of 574
(iv) Landlord shall deliver to Tenant on occupancy the Premises in good working order and condition, with roof, parapet walls and foundation watertight, and all utility systems, plumbing, drains and HVAC in functional condition;
(v) there are no exceptions to title with respect to and/or encumbrances on the Premises which would interfere with Tenants proposed use of the Premises;
(vi) Landlord has no notice of any proposed Assessments other than as reflected on the current tax bill;
(vii) Landlord has no knowledge of any condition that would preclude Tenant from obtaining all Tenant’s permits and licenses necessary for Tenant to open for business and operate for the Permitted Use;
(ix) Landlord covenants that it is duly constituted under the laws of the state of Illinois as a municipal corporation, and the City employee who is acting as its signatory in this Lease is duly authorized and empowered to act for and on behalf of the municipal corporation; and
(x) there are no judicial, quasi-judicial, administrative or other orders, injunctions, moratoria or pending proceedings against Landlord or the Property which preclude or interfere with, or would preclude or interfere with, the construction contemplated herein or the occupancy and use of the Premises by Tenant for the purposes herein contemplated.
(xi) no third party has the right to object to Tenant’s tenancy hereunder, prohibit the selling of any products sold by Tenant or the uses allowed herein or the right to consent to any feature of the Premises or Tenant’s signage.
(xii) there are no mortgages, prime leases, deeds to secure debt, deeds of trust, or other instruments in the nature thereof, affecting Landlord or its interest in the Premises.
(b) Tenant represents, warrants and covenants to Landlord that, to Tenant’s knowledge, the following is true as of the Effective Date:
(i) Tenant will apply and obtain all necessary governmental approvals for its Permitted Use.
(ii) Execution and performance of this Lease will not (a) violate any judgment or order of Court applicable to or affecting Tenant; (b) breach the provisions of, or constitute a default under, any contract, agreement, instrument or obligation to which Tenant is a party or by which Tenant is bound, or (c) violate or conflict with any law or governmental regulation or permit applicable to Tenant.
(c) All representations and warranties, covenants and indemnities contained in this Lease must survive the expiration or earlier termination of this Lease.
21. HOLDING OVER; END OF TERM
Page 22 of 30
A22. Page 332 of 574
(a) If Tenant must hold possession of the Premises after the expiration or termination of this Lease, at Landlord's option (i) Tenant must be deemed to be occupying the Premises as a tenant from month- to-month at one hundred fifty percent (150%) of the Fixed Minimum Rent in effect upon the expiration or termination of the immediately preceding term or (ii) Landlord may exercise any other remedies it has under this Lease or at law or in equity including an action for wrongfully holding over.
(b) Upon the expiration or sooner termination of this Lease, Tenant must surrender the Premises to Landlord in as good order, condition and repair as when received by Tenant; ordinary wear and tear, casualty and condemnation excepted. This provision must expressly survive the termination or expiration of this Lease.
(c) Any property, equipment, or product remaining in the Premises upon expiration of this Lease must be considered abandoned and property of the Landlord.
22. EXPENSES OF ENFORCEMENT
The Parties must bear its own costs, charges, expenses and attorney’s fees, and any other fees incurred in the event of a dispute between the Parties.
23. SUCCESSORS IN INTEREST
All of the covenants, agreements, obligations, conditions and provisions of this Lease must inure to the benefit of and must bind the successors and permitted assigns of the respective parties hereto.
24. REMEDIES ARE CUMULATIVE
Remedies conferred by this Lease upon the respective parties are not intended to be exclusive, but are cumulative and in addition to remedies otherwise afforded by the law.
25. QUIET POSSESSION
Upon payment by the Tenant of the minimum, percentage and additional rent and all other sums due hereunder and upon the observance and performance of all covenants, terms and conditions on Tenant’s part to be observed and performed, Tenant must peaceably and quietly hold and enjoy the Premises for the Term of this Lease without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under the Landlord, subject nevertheless, to the terms and conditions of this Lease.
26. ALTERATION
(a) Changes Required by Law. Any structural changes, alterations or additions in or to the Premises which may be necessary or required by reason of any law, rule, regulation or order promulgated by competent governmental authority must be made at the sole cost and expense of Landlord, including but not limited to asbestos removal and disposal and interior and exterior
Page 23 of 30
A22. Page 333 of 574
compliance with the Americans with Disabilities Act (ADA) etc. Notwithstanding the foregoing, if any such changes, alterations or additions are required as a result of improvements made by Tenant during the Term hereof or due to Tenant’s use of the Premises, such changes, alterations or additions must be made at the sole cost and expense of Tenant. Tenant may contest the validity of any such law, rule, regulation or order, but must indemnify and save Landlord harmless against the consequences of continued violation thereof by Tenant pending such contest.
(b) Alterations During Term. Tenant is permitted to perform interior, nonstructural alterations to the Premises and to revise the interior layout of the Premises. Tenant must obtain Landlord's written consent to any other alterations or construction which affects the structural nature of the Premises, which consent must not be unreasonably withheld, conditioned or delayed.
27. HAZARDOUS SUBSTANCES
(a) Tenant agrees that, except as herein set forth, it must not generate, use, store, handle or dispose of on or transport over the Premises any Hazardous Substances (defined below) in violation of any Environmental Laws (defined below), except as such incidental amounts of Hazardous Substances as may be required for Tenant to conduct the Permitted Use, but in no instance shall Tenant dispose of Hazardous Substances on the Premises in violation of Environmental Laws.
(b) If any time during the Term, Hazardous Substances are found in the Premises or on adjacent property and such Hazardous Substances are not the result of Tenant’s use of or work on the Premises, then, in such event, Tenant must have the immediate right to terminate this Lease upon written notice to Landlord. Under no circumstances must Tenant be responsible for remediation or cleanup of any Hazardous Substances on the Premises or adjacent property that were not caused by Tenant, or Tenant’s subcontractors, agents or employees. Furthermore, with regard to any Hazardous Substances caused by Tenant or its agents, contractors or employees, Tenant must remove same, in compliance with applicable Environmental Laws, at Tenant’s sole cost and expense. Tenant must defend, indemnify, and hold Landlord harmless from and against any and all costs, damages, expenses and/or liabilities (including reasonable attorneys’ fees) which Landlord may suffer as a result of any written demand (whether or not a suit), claim, suit or action regarding any such Hazardous Substances (whether alleged or real) present due to Tenant and/or regarding the removal and clean-up of same or resulting from the presence of such Hazardous Substances. The representation, warranty and indemnity of Tenant described in this subsection shall survive the termination or expiration of this Lease or purchase of the Property as provided herein. Other than Hazardous Substances caused by Tenant or its agents, contractors or employees, Tenant shall have no duty whatsoever to remove any Hazardous Substances from the Property.
(c) In the event that during the Term of this Lease, Tenant is prevented from performing Tenant’s Work and/or Tenant must be unable to operate for a period of thirty (30) days or more for the Permitted Use at the Premises and ceases operating at the Premises as a result of remediation of Hazardous Substances not caused by Tenant or its agents, contractors or employees, and Tenant does not terminate the Lease as provided for in Section 27(b) above, then Fixed Minimum Rent, Additional Rent and all other charges due hereunder must equitably abate until such time as Tenant is able to resume the performance of Tenant’s Work and/or the operation of its business in the Premises.
Page 24 of 30
A22. Page 334 of 574
(d) Tenant, for itself and its successors in interest, waives and releases Landlord from any and all past and present claims and causes of action arising from or relating to the presence or alleged presence of Hazardous Substances in, on, under, about or emanating from the Property, including without limitation any claims for cost recovery, contribution, natural resources damages, property damage, consequential damages, personal or bodily injury (including death) or otherwise, under or on account of any violation, or arising under, Environmental Law.
(e) The term “Hazardous Substance” includes, without limitation, any material or substance (regardless of whether discarded, recyclable or recoverable) to which liability or standards of conduct are imposed pursuant to Environmental Laws, including, but not limited to (i) any defined, characteristic or listed “hazardous waste”, “extremely hazardous waste”, “restrictive hazardous waste”, “hazardous substance”, “hazardous material”, “regulated substance”, “pollutant”, “contaminant” or waste, (ii) petroleum (including crude oil or any fraction thereof, natural gas, liquefied natural gas, synthetic gas or mixtures of natural gas and synthetic gas), (iii) asbestos and any asbestos containing materials, (iv) substances known to cause cancer and/or reproductive toxicity, (v) polychlorinated biphenyls (PCBs) and (vi) radioactive material. The term “Environmental Law” means any federal, state or local law, statute, ordinance, rule, regulation, order, consent, decree, judgment or common-law doctrine, interpretation thereof, and provisions and conditions of permits, licenses, plans, approvals and other operating authorizations whether currently in force or hereafter enacted relating to health, industrial hygiene or the environmental conditions on, under or about the Premises or the Property, as such laws are amended and the regulations and administrative codes applicable thereto, including, by way of example and without limitation, the following: the Illinois Environmental Protection Act; Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”); the Resource Conservation and Recovery Act (“RCRA”); the Clean Air Act; the Clean Water Act; the Safe Water Drinking Act (“SDWA”); the Toxic Substances Control Act; and all state and local counterparts thereto; and any common or civil law obligations including, without limitation, nuisance or trespass. It is the intent of the parties hereto to construe the terms “Hazardous Substance” and “Environmental Law” in their broadest sense.
28. GENERAL CONDITIONS
(a) Time is of the essence of this Lease. Any deadlines in this Lease which cannot be met because of delays caused by governmental regulations, inability to procure labor or materials, strikes, acts of God, or other causes (other than financial), beyond the control of Landlord or Tenant (“Force Majeure”) must be extended by the amount of time caused by such delays; provided, however, the payment of rent must not be excused. Notwithstanding anything herein to the contrary, the failure by Landlord to construct the Premises according to building code and/or to receive timely inspections by the necessary authorities due solely to the negligence, misconduct or financial inability of Landlord or Landlord's contractors, employees or representatives must not constitute Force Majeure. In order for Landlord to claim the occurrence of Force Majeure, Landlord must have notified Tenant in writing of such occurrence within twenty (20) business days after the initial occurrence.
(b) No waiver of any breach of the covenants, agreements, obligations and conditions of this Lease to be kept or performed by either party hereto must be construed to be a waiver of any succeeding
Page 25 of 30
A22. Page 335 of 574
breach of the same or any other covenant, agreement, obligation, condition or provision hereof.
(c) Tenant must not be responsible for the payment of any commissions in relation to the leasing transaction represented by this Lease. Landlord and Tenant each covenant that they have not dealt with any real estate broker or finder with respect to this Lease (herein collectively “Brokers”). Each party must hold the other party harmless from all damages, claims, liabilities or expenses, including reasonable and actual attorneys' fees (through all levels of proceedings), resulting from any claims that may be asserted against the other party by any real estate broker or finder with whom the indemnifying party either has or is purported to have dealt, except for the Brokers.
(d) The use herein of any gender or number must not be deemed to make inapplicable the provision should the gender or number be inappropriate to the party referenced. All section headings, titles or captions contained in this Lease are for convenience only and must not be deemed part of this Lease and must not in any way limit or amplify the terms and provisions of this Lease.
(e) Landlord and Tenant have negotiated this Lease, have had the opportunity to be advised respecting the provisions contained herein and have had the right to approve each and every provision hereof; therefore, this Lease must not be construed against either Landlord or Tenant as a result of the preparation of this Lease by or on behalf of either party.
(f) If any clause, sentence or other portion of this Lease must become invalid or unenforceable, the remaining portions thereof must remain in full force and effect.
(g) Wherever in this Lease Landlord or Tenant is required to give consent, such consent must not be unreasonably withheld, conditioned or delayed except to the extent otherwise expressly provided herein.
(h) If the time for performance of any obligation or taking any action under this Lease expires on a Saturday, Sunday or legal holiday, the time for such performance or taking such action must be extended to the next succeeding day which is not a Saturday, Sunday or legal holiday. If the day on which rent or any other payment due hereunder is payable falls on a Saturday, Sunday or on a legal holiday, it must be payable on the next succeeding day which is not a Saturday, Sunday or legal holiday.
(i) Each covenant hereunder of Landlord, whether affirmative or negative in nature, is intended to and must bind the Landlord and each successive owner of the Premises and their respective heirs, successors and assigns.
(j) There must be no personal liability on Landlord, its elected officials, officers, employees, agents, or any successor in interest with respect to any provisions of this Lease, or amendments, modifications or renewals hereof. Tenant must look solely to the then owner's interest in the Premises (including but not limited to any insurance proceeds, rents, or judgments) for the satisfaction of any remedies of Tenant in the event of a breach by Landlord of any of its obligations hereunder.
(l) Landlord hereunder must have the right to assign, sell or transfer Landlord’s interest in this Lease or the Premises with consent of Tenant, which must not be unreasonably withheld. In the event of any
Page 26 of 30
A22. Page 336 of 574
such transfer, the transferor must be automatically relieved of any and all obligations on the part of Landlord accruing from and after the date of such transfer.
(m) Tenant acknowledges that it will seek to hire qualified Evanston residents for employment in the Tenant’s business located at the Premises.
(n) The parties agree the this Lease must be governed by and interpreted in accordance with the laws of the State of Illinois and that venue for any disputes must be in the Circuit Court of Cook County, Illinois.
(o) There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of intent, lease proposals, brochures, agreements, representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none thereof must be used to interpret or construe this Lease. This Lease cannot be changed or terminated except by a written instrument subsequently executed by the parties hereto. IN WITNESS WHEREOF, the respective parties hereto have executed this Lease by officers or agents thereunto duly authorized. The Effective date is the date executed by the City.
City of Evanston 633 Outpost, LLC
Sign: ______Sign: ______
Its: ______Its: ______
Print Name: ______Print Name: ______
Page 27 of 30
A22. Page 337 of 574
EXHIBIT A
LEGAL DESCRIPTION
LOT 5 (EXCEPT THE EAST .062 FEET THEREOF) IN BLOCK 1 IN NILES HOWARD TERMINAL ADDITION, A SUBDIVISION OF THE SOUTH 6.25 CHAINS (412.50 FEET) OF THAT PART OF THE NORTHEAST ¼ OF SECTION 30, TOWNSHIP 41 NORTH, RANGE 14, LYING WEST OF THE RIGHT OF WAY OF THE CHICAGO AND NROTH WESTERN RAILROAD, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.
P.I.N.: 11-30-209-023-0000
Commonly known: 633 Howard Street, Evanston, IL 60202.
Page 28 of 30
A22. Page 338 of 574
EXHIBIT B
SITE PLAN Floor plan to be added upon completion by architect.
Page 29 of 30
A22. Page 339 of 574
EXHIBIT C
FIXTURES AND EQUIPMENT LIST
One Compartment Sink Three Compartment Sink Hand Sink Splash Mount Pre Rinse Display Case Refrigerated Condensate Hood Upblast Exhaust Hood Soft Dough Hopper Chandeliers Walk in Cooler Counter Tops Double Gas Convection Oven 10 Marble Top Tables 3ft Grab and Go Cooler Ceiling Tile Proofer
Page 30 of 30
A22. Page 340 of 574 Memorandum
To: Honorable Mayor and Members of the City Council From: Alexandra Ruggie, Assistant City Attorney CC: Ethics Subcommittee Subject: Ordinance 20-O-19, Amending Title 1, Chapter 10 "City of Evanston Code of Ethics and Board of Ethics" Date: November 11, 2019
Recommended Action: The Members of the Ethics Subcommittee recommend adoption of Ordinance 20-O-19 Amending City Code Title 1, Chapter 10 "City of Evanston Code of Ethics and Board of Ethics" and the Board of Ethics Rules.
Council Action: For Action
Summary: Ordinance 20-O-19 amends Title 1, Chapter 10, "City of Evanston Code of Ethics and Board of Ethics." This Ordinance incorporates suggestions from the Rules Ethics Subcommittee as well as the City's Board of Ethics. Ordinance 20-O-19 is a complete re-write of the process in which an ethics complaint is handled. The Ordinance removes the Law Department participation entirely and adds a Special Counsel to advise the Board of Ethics.
This Ordinance uses neutral pronouns including "they", "them", "their" and "themselves".
Legislative History: At hoc ad an created Committee Rules meeting, 2019 22, January Rules the the subcommittee to review issues with the City's current Ethics Ordinance and report back with its findings and recommendations to the Rules Committee. The subcommittee presented its draft to the Rules Committee on October 7, 2019.
Attachments: 20-O-19 Amending Title 1, Chapter 10 Board of Ethics BOE Rules & Procedures
A23. Page 341 of 574
2/26/2019 6/25/2019 9/25/2019 10/1/2019 10/16/2019 10/30/2019 20-O-19
AN ORDINANCE
Amending Title 1, Chapter 10 of the Evanston City Code, “City of Evanston Code of Ethics and Board of Ethics”
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: Title 1, Chapter 10, “Board of Ethics,” of the Evanston City
Code of 2012, as amended, is hereby deleted in its entirety and further amended to
read as follows:
Chapter 10 – City of Evanston Code of Ethics and Board of Ethics.
1-10-1. - PURPOSE.
The purpose of this Chapter is to provide a Code of Ethics for the City of Evanston, establish a Board of Ethics and set forth an ethics complaint process.
1-10-2. - DEFINITIONS.
Advisory Panel. Board of Ethics Chair and Special Counsel. Appointed Official. Any member of a board or commission appointed by the Mayor or the City Council. Board of Ethics Board of Ethics Chair will act as a Hearing Officer whose duty it Chair. is to: (1) Preside at a hearing called to determine whether or not a Code violation exists; (2) Hold conferences between the parties for the settlement or simplification of the issues; (3) Administer oaths; (4) Accept evidence from all interested parties relevant to the existence of a Code violation to be presented to the Board of Ethics at the hearing; and (5) Rule upon motions, objections and the admissibility of
Page 2 of 22
A23. Page 342 of 574 20-O-19
evidence. City approval. Any contract, legislative action, administrative action, transaction, zoning decision, permit decision, licensing decision, or other type of approval action that may be the subject of an official City act or action. Code. The City of Evanston Code of Ethics. Compensated With respect to an employee, any time worked by or credited to time. the employee that counts toward any minimum work time requirement imposed as a condition of their employment. For purposes of this Code, compensated time shall not include any designated holidays, vacation periods, personal time, compensatory time or any period when the employee is on a leave of absence. For employees whose hours are not fixed, "compensated time" includes any period of time when the employee is on premises under the control of the City and any other time when the employee is executing their City duties, regardless of location. Compensatory Authorized and documented time off from work earned by or time. awarded to an employee to compensate in whole or in part for time worked in excess of the minimum work time required of that employee as a condition of employment with the City. Covered person. Unless otherwise stated or expressly limited, this shall mean every elected official, appointed official or employee of the City. Director. Each City department head. Elected official. The Mayor, any member of the City Council chosen by the City electorate and any duly appointed member of the City Council and the City Clerk. Employee. Any person employed by the City (whether part-time or full time and whether or not pursuant to a contract) whose duties are subject to the direction and control of the City Council or a City supervisor with regard to the material details of how the work is to be performed. Employee does not include an independent contractor. An elected official is not an employee. Gift. Any money, fee, commission, credit, gratuity, thing of value including a discount, entertainment, hospitality, loan, forbearance, other tangible or intangible item having monetary value. This includes compensation of any kind including, but not limited to, cash, food and drink, or honoraria for speaking engagements related to or attributable to government employment or the official position of a covered person. Interest in real This shall include, but is not limited to any legal or beneficial property. interest whatsoever in real property through (i) a trust; or (ii) contract to purchase where title may not have been yet conveyed; or (iii) a corporation, an investment group or limited liability company or partnership; or (iv) leasehold or rental agreement.
~2~
Page 3 of 22
A23. Page 343 of 574 20-O-19
Intra-governmental Intra-governmental gift means any gift given to a covered person and inter- from another covered person. Inter-governmental gift means any governmental gifts. gift given to a covered person by an elected official, appointed official or employee of another public body. Other members of A person who is not a spouse or minor child a of covered person a person's who resides at the same residence of the covered person at household. least 180 days per year and does not pay fair market value rent. Persons or entities Any one or any combination of sales, purchases, leases or doing business. contracts to, from or with the City in an amount in excess of $10,000 in any twelve (12) consecutive months. Persons or entities (1) Any person taking any action within the past six (6) months to seeking to do obtain a contract or business from the City when, if such action business. were successful, it would result in the person’s doing business with the City, and the contract or business sought has not been awarded to any person; or (2) any matter that was pending before the City Council in the six months prior to the date of the contribution if the matter involved the award or loan funds, grant funds or bond proceeds, bond inducement ordinances, leases, land sales, zoning matters, the creating of tax increment financing districts or concession agreements. Political A political party, committee, association, fund, or other organization. organization (whether or not incorporated) that is created to further the election of a candidate or in furtherance of a law, ordinance or referendum. Prohibited source. Any person or entity who (that): (a) Whether directly or indirectly seeks or solicits any official action from a covered person or from a public body or a person who directs a covered person; (b) Whether directly or indirectly, does business with or seeks to do business with a covered person or with a public body or a person who directs a covered person; (c) Whether directly or indirectly, is regulated by a covered person or by a public body or a person who directs a covered person; (d) Whether directly or indirectly has any interest that may be substantially affected by the performance or non-performance of the official duties of a covered person; or (e) Is registered or required to be registered with the Secretary of State under the Lobbyist Registration Act, except that an entity not otherwise considered to be a prohibited source does not become a prohibited source merely because a registered lobbyist is a member of that entity or serves on its board of directors. Protected activity. For purposes of this Chapter, protected activities means the following: (a) Disclosure or request to disclose an activity, policy or
~3~
Page 4 of 22
A23. Page 344 of 574 20-O-19
practice that any covered person would reasonably believe is a violation of a federal, state or City law, rule or regulation; (b) Providing of information to or testimony before any public body conducting an investigation, hearing or inquiry of any kind into any possible violation of a federal, state or City law, rule or regulation; or (c) Cooperation with or participation in any federal, state, or municipal proceeding to enforce the provisions of this Code of Ethics. Public body. (1) The federal government, federal agency, federal judiciary, federal official or employee, any federal law enforcement agency or office, or federal grand jury or petit jury; (2) a state government, state agency, state judiciary, state official or employee, any state law enforcement agency or office or state grand jury or petit jury; (3) a municipal government, municipal agency or department, municipal committee, municipal judiciary, municipal official or employee, any municipal law enforcement agency or office; or (4) county, township, special districts, or other taxing entity. Retaliatory action. (a) Retaliation against an employee: Adverse action of any kind against any employee including but not limited to the reprimand, discharge, suspension, demotion or denial of promotion or transfer of any employee, or the imposition of a punishment as set forth in this Code of Ethics that is administered to an employee because of the employee's involvement in protected activity as set forth in this Code of Ethics; (b) Retaliation against an elected official or appointed official: Adverse action of any kind against an elected official or appointed official including, but not limited to, the filing of a bad faith complaint by a covered person against an elected official or appointed official for a violation of this Code of Ethics or the imposition of discipline as set forth in this Code of Ethics that is administered against an elected official or appointed official because of an elected official's or appointed official's involvement in a protected activity as set forth in this Code of Ethics; or (c) Retaliation against any individual or entity: Adverse action of any kind by a covered person against any individual or entity including, but not limited to, the refusal of services, threats of any kind including the threat of applying stricter requirements or restrictions or standards of any kind, monitoring with excessive visits, differential or discriminatory behavior of any kind, harassment, delay, changing deadlines or changing required standards of performance or conduct, or the initiation of investigations without a good faith cause that is taken because
~4~
Page 5 of 22
A23. Page 345 of 574 20-O-19
of the individual's or entity's involvement in a protected activity as set forth in this Code of Ethics. Special Counsel Counsel for Board of Ethics. Supervisor. An employee who has the authority to direct and control the work performance of another employee or who has authority to take corrective action regarding any violation of a law, rule or regulation.
1-10-3. - REQUIREMENTS FOR FINANCIAL DISCLOSURE AND AFFILIATION.
(A) Disclosure of interest in real property. Each elected official, appointed official, director and employee who staffs a board of commission, shall file with the City Clerk, a statement disclosing any ownership interest in real property located within the corporate limits of the City by the elected official, appointed official, director or coordinator. (B) Disclosure of business interests. Each elected official, appointed official, director and employee who staffs a board of commission shall annually file with the City Clerk, a statement disclosing the ownership in or the employment by any business, firm, corporation or entity of any kind doing business with the City. This shall not include an interest in a publicly traded entity where the covered person holds less than one percent of the stock. (C) Disclosure of other employment. Each elected official, appointed official, director and employee who staffs a board of commission shall file annually with the City Clerk, a statement specifying all employment for the previous calendar year of the person filing the statement and the person’s spouse or cohabitating partner. This statement shall include the name of the employing entity, the number of hours typically worked per week, the nature of the service performed in the course of such employment, and a statement of whether the services performed were connected in any manner to the individual's employment with the City or with City business. This statement shall further disclose whether the covered person or covered person's employer performed any service or work for the City for which the covered person was compensated. This shall not include compensation for work performed in the person's official capacity with the City. (D) Filing and disclosure. 1. All disclosure statements described in this section shall be filed with the City Clerk on or before July 1 of each calendar year, except as otherwise set forth in this Code of Ethics, or within sixty (60) days of a change in status. The City Manager or the Mayor and City Council shall have the authority to require more frequent filings. 2. A person who is specially appointed as an officer, a person who is an appointed official, a person who is elected in a special election, and all newly hired employees shall have thirty (30) calendar days from election, appointment or date of hire to file the disclosures required by this section.
~5~
Page 6 of 22
A23. Page 346 of 574 20-O-19
3. Persons obligated to file disclosure statements pursuant to the laws of the state shall also file copies of such disclosure statements with the City Clerk. 4. Any disclosure required by this City Code Section 1-10-3 shall include the disclosure of interests of the covered person's spouse, minor child and other members of the covered person's household.
1-10-4. - REQUIREMENTS WITH RESPECT TO CONFLICTS OF INTEREST AND STANDARDS OF CONDUCT.
(A) Impartiality. All Employees shall perform their duties with impartiality and without prejudice or bias in their service to the residents of the City of Evanston. No Employee shall grant or make available to any individual, including other covered persons any consideration, treatment, advantage or favor beyond that which is available to every other individual. (B) Recusal and abstention. When an elected official or appointed official must take official action on a legislative matter or in connection with their performance of City duties as to which they have a conflict of interest or as to which a person in their position would believe that there is an appearance of a conflict of interest created by a personal, family, client, legislative interest, or economic interest, they must disclose, either in advance in writing, or verbally at the meeting at which such matter is to be entertained, to the Special Counsel and to the board, commission, or City Council on which the person is a member of, during an open session, the existence of the potential conflict of interest. This official must then either eliminate the cause of the conflict of interest or, if that is not feasible, abstain from any direct or indirect official action relating to the matter including but not limited to participating in any discussion, debate or vote relating to the matter. Any elected or appointed official must state the reason for abstention at the time they abstain. It is understood that there are certain statutory conflicts of interest which may not be cured by recusal and abstention. Conflicts of interest such as are set forth in 65 ILCS 5/3.1-55-10 and 50 ILCS 105/3a may be cured only by resignation from office or as otherwise set forth in those statutes. (C) Prohibition against interests in City contracts and business. No covered person, whether paid or unpaid, shall have any direct or indirect interest in any contract, work or business with or of the City except as permitted by 65 ILCS 5/3.1-55-10 of the Illinois Municipal Code. (D) Prohibition against interests which are in conflict with or appear to be in conflict with the performance of official duties. No covered person shall directly or indirectly engage in any business or transaction or shall directly or indirectly have a financial or other personal interest in a business or transaction that is in conflict with or gives the appearance of being in conflict with the proper discharge of their official duties or that impairs or may give the appearance of impairing their independent judgment and/or independent action in the performance of their official duties. For purposes of this Section, "personal interest" shall include the financial interest of a spouse, minor child or other household member of the covered person.
~6~
Page 7 of 22
A23. Page 347 of 574 20-O-19
(E) Interest in a City approval. Each covered person having the power or duty to directly or indirectly perform an official act or action that is related to a City approval shall: 1. Disclose any direct or indirect interest, including that of a spouse or cohabitating partner in the City approval being sought; 2. Disclose any direct or indirect interest in any business entity seeking the City approval or in any entity representing, advising or appearing on behalf of that business entity or person, whether paid or unpaid, in seeking the City approval; 3. Not solicit, or discuss and or accept, while a covered person, an offer of present or future employment with a person or business entity seeking the City approval; 4. Not encourage, make or engage in any ex parte or unilateral application or communication where a determination is to be made after a public hearing and if such communication is made, the contents of the communication shall be made part of the public record. Said communication only applies where a covered person is a member of a hearing body when the communication pertains to said hearing; 5. Not directly or indirectly solicit, accept or grant a future gift, favor, service or anything of value from or to an entity or person seeking the City approval or from any person or entity who was expected to receive a material benefit, directly or indirectly on account of the City approval, except: a. A one-time consumable non-pecuniary gift with a value of less than one hundred dollars; b. A non-pecuniary award publicly presented in recognition of public service. (F) Prohibited campaign or political activity: 1. No covered person shall intentionally require any employee to and no employee while on compensated time shall intentionally: a. Use any City property or resources in connection with any campaign or political activity; b. Participate in any political activity for the benefit of any campaign for elective office or any political organization; 2. No covered person shall intentionally: a. Use the service of any employee by requiring performance by that employee of any campaign or political activity; b. Require any campaign or political activity as a part of an employee's City duties or as a condition of continued City employment or advancement; c. Require an employee, at any time, to participate in any campaign or political activity as consideration for the employee being awarded any additional compensation or employee benefit in the form of a salary adjustment, bonus, compensatory time, uncompensated approved leaves of absence, or as a condition of continued
~7~
Page 8 of 22
A23. Page 348 of 574 20-O-19
employment or advancement for that employee, or requiring such participation for any other reason; d. Award an employee additional compensation or employee benefit(s), in the form of a salary adjustment, bonus, compensatory time off, uncompensated approved leaves of absence, continued employment, advancement, or otherwise, as consideration for that employee's participation in any campaign or political activity; e. Require any other covered person to make any campaign contribution whether in money, in time, or through the provision of any goods or services in consideration for the continued employment or advancement of the covered person. (G) Pre-acquisition of interest. No covered person shall directly or indirectly acquire an interest in or an interest affected by any City approval at a time when the covered person knew or reasonably should have known that the acquired interest might be directly or indirectly affected by an official act or action of such covered person. (H) Appearances. No covered person, except elected officials, shall appear on behalf of or against any private party before any City board or commission. This shall not include appearances on behalf of themselves, their spouse or minor child or other member of the person's household. (I) Disclosure and/or use of confidential information. No covered person shall, without proper legal authorization, directly or indirectly disclose confidential information concerning the property, government or affairs of the City or use such information to directly or indirectly advance the financial, personal or other private interest of the covered person or any other person or entity. (J) Public property. No covered person shall permit the use of or engage in the unauthorized use of City owned funds, vehicles, equipment, materials or property of any kind for political activity, personal convenience or profit or for any other matter not related to official City business. This prohibition shall apply irrespective of whether or not the public property is returned or reimbursed. This prohibition shall not apply to the use of non-powered traffic control items such as cones or other barricades used for civic events or block parties. No political activity may take place on any City property or at any City Ward Meeting.
1-10-5. - OFFICIAL MISCONDUCT.
A covered person commits official misconduct when in their official capacity intentionally commits any one of the following acts:
(A) Performs an act in excess of their lawful authority, with intent to obtain a personal benefit or advantage for themselves or for another person. (B) Solicits or knowingly accepts for the performance of any act in connection with their official duties any fee or reward which they know is not authorized by law and which is not part of their regular compensation for the performance of their official duties.
~8~
Page 9 of 22
A23. Page 349 of 574 20-O-19
(C) Uses the prestige, power or influence of their office or employment to engage in any transaction or any activity, which is, or would appear to be, in conflict or incompatible with the proper discharge of their official duties, or which impairs, or would appear to impair, the officer, appointed official or employee’s independence of judgment or action in the performance of official duties. This prohibition shall extend to any use of official position or employment for a purpose that is or would to a reasonable person appear to be for the private benefit of the officer, appointed office, employee or any member of their family, rather than primarily for the benefit of the City. (D) Purchases, receives or accepts any financial interest in any sale to the City of any service or property. (E) Accepts a retainer or any form of compensation from any private interest that is expressly or implicitly contingent upon the occurrence of specific City action. (F) Represents any private interest in any transaction involving the City for twelve (12) months after their status as an elected official of the City terminates.
1-10-6. - GIFT BAN.
(A) Gift ban. Except as otherwise provided in this section, no covered person shall directly or indirectly solicit or accept any gift from any prohibited source in violation of any federal or state statute, rule or regulation or in violation of any City ordinance, rule or regulation. This ban applies to and includes the spouse, minor child, immediate family member, or other member of the household of the covered person. (B) Gift ban exceptions. The restrictions above do not apply to the following: 1. Opportunities, benefits, and services that are available on the same conditions as for the general public; 2. Anything for which the covered person pays the market value that is available on the same conditions as for the general public; 3. Any (i) contribution that is lawfully made under the election code or under this Chapter; or (ii) activities associated with a fundraising event in support of a political organization or candidate; 4. Educational materials and magazines; 5. Travel expenses paid for by the City for a meeting to attend to City business that have been reviewed and approved by the City Manager or their designee; 6. A gift from a relative, meaning those people related to the individual as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son- in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half-brother, half-sister, and including the father, mother, grandfather, or grandmother of the individual's spouse and the individual's fiancé or fiancée; 7. Anything provided by an individual on the basis of a personal friendship unless a reasonable person would have reason to believe that under the
~9~
Page 10 of 22
A23. Page 350 of 574 20-O-19
circumstances the gift was provided because of the official position or employment of the covered person and not because of personal friendship; 8. In determining whether a gift is provided on the basis of personal friendship, the covered person shall consider the circumstances under which the gift was offered, such as: a. The history of the relationship between the individual giving the gift and the recipient of the gift, including any previous exchange of gifts between those individuals; b. Whether in the actual knowledge of the covered person, the individual who gave the gift personally paid for the gift or sought a tax deduction or business reimbursement for the gift; c. Whether in the actual knowledge of the covered person, the individual who gave the gift also at the same time gave the same or similar gifts to another covered person; and d. Whether in the actual knowledge of the covered person, the individual who gave the gift had any matter proposed or pending before the City that related directly or indirectly to the covered person. 9. Food, entertainment or refreshments not exceeding one hundred dollars ($100.00) per person in value that are provided and consumed on a single calendar day and that are provided in connection with a meeting or event associated with official City duties provided (1) that the food or refreshments are consumed on the premises from which they were purchased, prepared or catered; and (2) that, in case of employees, the anticipated provision of food or beverages is disclosed to the supervisor of the employee(s) in writing no less than twenty-four (24) hours in advance. For the purposes of this Section, "catered" means food or refreshments that are purchased ready to eat and that are delivered by any means. This provision is not intended to allow employees to receive food or beverages which are not part of an official preapproved meeting in connection with City duties; 10. Food, refreshments, lodging, transportation and other benefits resulting from outside business or employment activities (or outside activities that are not connected to the City duties of the covered person as an office holder or employee) of the covered person, if the benefits have not been offered because of the official position or employment of the covered person, and are customarily provided to others in similar circumstances; 11. Intra-governmental and inter-governmental gifts; 12. Bequests, inheritances and other transfers at death; or 13. Anything provided as a gift to a covered person because that person is retiring or leaving office or City employment provided that each such gift is disclosed to the covered person’s supervisor and if that person is an elected or appointed official, the disclosure will be to the City Manager or their designee.
~10~
Page 11 of 22
A23. Page 351 of 574 20-O-19
Each of the exceptions listed in this section is mutually exclusive and independent of one another. (C) Disposition of banned gifts. A covered person does not violate this Section if the covered person makes timely disclosure in writing of the receipt of the gift to the Special Counsel and informs the Special Counsel in writing that the prohibited gift has been returned to the source identified in the written disclosure, or provides written disclosure to the Special Counsel of the receipt of the gift along with appropriate documentation which demonstrates that the gift or an amount equal to its value has been given to an appropriate charity that is exempt from income taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as now or hereafter amended, renumbered or succeeded.
1-10-7. - WHISTLE BLOWER PROTECTION.
No covered person shall take or cause another to take any retaliatory action against any person because that person has engaged in protected activity.
1-10-8. - ETHICS TRAINING.
(A) Ethics training: Beginning in 2020, each covered person must complete, on an annual basis, an ethics training program provided by the Law Department. Any new employee, newly elected or newly appointed Covered Person must complete the ethics training within ninety (90) days of acceptance or swearing in of their new position. This training program shall: 1. Require each covered person to review this Code of Ethics and to sign a statement attesting to the fact that the covered person has read and understands this Code of Ethics; and 2. Discuss the requirement that each covered person must act in accordance with federal and state law and City regulations and in compliance with this Code of Ethics. Each director must also implement an ongoing ethics training program for that department's employees. This ongoing ethics training program shall be overseen by the City Manager. The director of each department and the City Manager, on an annual basis shall submit a written statement to the City Council attesting to the fact that the ethics training has taken place during that calendar year. (B) Each calendar year, the City of Evanston Law Department shall meet with the City Manager to review the implementation of this Code of Ethics, the status of ongoing training and discuss any needed changes. The Law Department and City Manager shall make an annual report to the City Council in writing about this meeting, the status of the implementation of this Code of Ethics, and any recommended changes.
1-10-9. - ABUSE OF THE CODE OF ETHICS.
It shall be a violation of this Code of Ethics for any covered person to knowingly engage in the following conduct:
~11~
Page 12 of 22
A23. Page 352 of 574 20-O-19
(A) Intentionally and in bad faith make a false report alleging a violation of any provision of this Code of Ethics. (B) Intentionally and in bad faith obstruct or attempt to obstruct the implementation of this Code of Ethics or an investigation of any alleged violation of this Code of Ethics.
1-10-10. - BOARD OF ETHICS ESTABLISHMENT, MEMBERSHIP, QUALIFICATIONS, TERMS OF OFFICE, AND ORGANIZATION.
(A) The City of Evanston Board of Ethics is hereby established. The Board of Ethics shall consist of five (5) members appointed by the Mayor with the consent of the City Council. (B) Five (5) voting members shall be appointed to the Board of Ethics by the Mayor with the advice and consent of the City Council for a term of two (2) years. Each member of the Board of Ethics may not serve more than two (2) year terms. The Chair of the Board of Ethics shall be appointed by the Mayor. The appointed board members shall be residents of the City who are known for personal integrity and sound judgment, who are not employees of the City, who have no claim pending against the City and who have no contractual relationship with the City. The members shall serve without compensation for their services. (C) If a vacancy occurs before the end of a term, a member shall be appointed by the Mayor with the consent of the City Council for the unexpired portion of the term. (D) At the first meeting in January of each year, or at a meeting as close to that date as practicable, the Board of Ethics shall elect a Vice-Chair. The Chair shall preside over all meetings. The Vice-Chair shall perform all duties of the chair in the absence of the Chair. (E) The City Manager will designate a Staff Liaison to provide ministerial assistance to the Board of Ethics. The Staff Liaison will prepare and post agendas and minutes, coordinate Board meetings and hearings, and provide any additional support necessary to the Board. The Staff Liaison shall not be a member of the City’s Law Department.
1-10-11. - CALL OF MEETING.
The Board of Ethics shall meet monthly as regularly scheduled, unless properly cancelled. The Board of Ethics may schedule Special Meetings as needed. The Board of Ethics will operate in full conformance with the Illinois Open Meetings Act 5 ILCS 120/1 et seq. and in accordance with the Board of Ethics Rules.
1-10-12. - POWERS AND DUTIES.
The Board of Ethics shall have the following powers and duties: (A) To give advisory opinions to the Special Counsel on proposed action(s); (B) To hear complaints concerning unethical conduct as to any covered person;
~12~
Page 13 of 22
A23. Page 353 of 574 20-O-19
(C) To make recommendations to the City Council for changes in the City’s Code of Ethics; (D) The Board of Ethics may adopt such rules as it deems necessary for the conduct of its business; (E) The Board of Ethics does not have the power to issue subpoenas; (F) The Board may render an informal advisory opinion based on a real or hypothetical set of circumstances, when requested by a covered person. If a covered person submits a request or question to the Board for an informal advisory opinion, the Board must respond in writing. All requests to the Board for an informal advisory opinion are confidential. The Board may publish advisory opinions if guidance on a frequent issue is requested. The published informal advisory opinions must be redacted to remove any personal identifiers; and (G) Issue a final order which includes findings of fact and conclusions of law for all Ethics Code Complaints.
1-10-13. - BOARD OF ETHICS SPECIAL COUNSEL.
(A) The Board of Ethics Special Counsel (“Special Counsel”) is hereby established. (B) Special Counsel shall be appointed by the Mayor with the consent of the City Council and will have duties as outlined in this Chapter. Special Counsel will be administered through the City Manager’s Office and shall be an independent contractor of the City. (C) Special Counsel shall create their own rules and regulations to execute their duties as outlined, and in conformance with this ordinance. Such rules shall be subject to the approval of a majority of a quorum of the Ethics Board. The rules and regulations shall be published in pamphlet form available to the public. (D) Special Counsel on their own action can initiate an ethics investigation. The findings of such an investigation shall be provided to the Advisory Panel as outlined in City Code Section 1-10-14. (E) The Special Counsel must have demonstrable relevant experience in order to be considered for the appointment and the Special Counsel must be a licensed member, in good standing, of the Illinois Bar, at the time of appointment and for the duration of their term. (F) The Special Counsel shall perform an intake for Ethics Complaints filed, compile any evidence submitted by the Complainant and the Respondent pertaining to said Complaint, provide legal advice and counsel to the Board of Ethics and perform all duties as specified in 1-10-15. The Special Counsel is not required to locate evidence for either party.
1-10-14. - FORMAL COMPLAINTS AND FINDINGS OF VIOLATION.
Any person (complainant) may file a formal ethics complaint with the Board of Ethics through the Special Counsel by written complaint to the Board of Ethics.
(A) The complaint shall state the name of complainant (complainant), the name of the person accused (respondent) and set forth the specific act or acts alleged to
~13~
Page 14 of 22
A23. Page 354 of 574 20-O-19
constitute a violation of the Ethics Code along with all facts known to the complainant that support the complaint. (B) An acknowledgment of receipt of the complaint shall be sent by the Special Counsel via email to the complainant within seven (7) calendar days of receipt of the complaint. (C) The Special Counsel and Chair of the Board of Ethics shall make up the Advisory Panel. The Advisory Panel shall make a preliminary jurisdictional determination as to whether the complainant has stated sufficient facts to constitute a violation of the Ethics Code. Jurisdiction shall be determined if the complaint is alleged against a covered person and states allegations of a violation or violations of the Ethics Code. If the Advisory Panel does not agree as to the jurisdictional determination, the Complaint shall be presented to the Board of Ethics in closed session for determination of jurisdiction. The Advisory Panel’s determination does not constitute an open meeting of the Board of Ethics. The Advisory Panel shall give their findings to the Board of Ethics to review in closed session at the next regularly scheduled meeting of the Board of Ethics. The Board of Ethics shall determine whether the complaint should be dismissed for lack of jurisdiction and all final action must be taken in open session. If the Board of Ethics determines that the complaint should be dismissed for lack of jurisdiction, the Special Counsel will communicate that finding to the complainant within seven (7) calendar days from the determination. Neither the complaint nor jurisdictional findings is subject to disclosure under the Illinois Freedom of Information Act. Upon finding that the complaint alleges sufficient facts to state a violation, the Board of Ethics shall conduct a hearing in accordance with Section 1-101-15. (D) The hearing shall be led by the Board of Ethics Chair and include a review of all relevant documents and records. (E) The Board of Ethics shall render its opinion in writing as soon as practicable after the hearing is concluded. The opinion shall include a finding of facts, the identification of the specific Ethics Ordinance provision that was allegedly violated, and an opinion based upon the factual findings as to whether the alleged violation was sustained or not. (F) A copy of the Board of Ethics opinion shall be sent to the respondent and the complainant. Within ten (10) business days from receipt of the opinion, the respondent or the complainant may object and ask for reconsideration in writing of the opinion; said objection must set forth in detail the basis for the objection. The objection must be received by the Special Counsel, within the ten (10) business day period set forth above. (G) Upon receipt of a timely written objection and request for reconsideration, the Board of Ethics shall evaluate the objection and take whatever steps are necessary to reach a conclusion on the objection. (H) After due consideration of any objection and request for reconsideration, if made, the Board of Ethics shall render its final opinion in writing. The final opinion shall be sent to the Respondent, the Complainant and the City Council. (I) Only if, and when, the respondent or the complainant objects to the final opinion, the City Council shall act as a Board of Appeals.
~14~
Page 15 of 22
A23. Page 355 of 574 20-O-19
(J) The City Council may take further action as is appropriate on any determination by the Board of Ethics that there has been a violation of this Ordinance.
1-10-15. - HEARING PROCEDURES FOR ETHICS HEARINGS.
1-10-15-1. - Rules of evidence.
Rules of evidence shall not govern. The formal and technical rules of evidence do not apply in a hearing permitted under this Code. Evidence, including hearsay, may be admitted only if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
1-10-15-2. - Representation at hearings.
(A) The case for the complainant may be presented by the complainant, any agent of the complainant or an attorney. The complainant may rely solely on the written complaint. Complainant is not required to attend the hearing. (B) The case for the respondent may be presented by the respondent, any agent of the respondent or an attorney. An agent who is not a licensed attorney shall present a written authorization signed by the respondent giving the agent power to act and to bind the respondent to any order(s) entered by the Board of Ethics. A licensed attorney is not required to produce such an authorization.
1-10-15-3. - Conduct of hearings.
The Board of Ethics Chair shall conduct the hearing in an orderly manner and insist upon proper decorum by all persons present at the hearing. The intent of the hearing is to provide the complainant and the respondent full and fair presentation of the issues.
Conduct of the hearing shall be as follows: Opening arguments if requested by either party; Complainant’s case in chief; Examination of witness; Cross-examination of witness; Rebuttal; Respondent’s case in chief; Examination of witness; Cross-examination of witness; Rebuttal; Closing remarks if requested by either party.
1-10-15-4. - Documentary evidence.
Relevant documents may be received into evidence without formal proof of authenticity. The Board of Ethics shall determine the weight, if any, to be afforded documents received into evidence.
~15~
Page 16 of 22
A23. Page 356 of 574 20-O-19
1-10-15-5. - Transcript of proceedings.
Either party may request that the proceedings be taken and transcribed by a certified court reporter. The cost of the reporter shall be borne by the party requesting the reporter. The City shall, at its cost, tape record the proceedings. If a tape recording is made, a respondent may obtain a transcript at respondent's cost.
1-10-15-6. - Continuances.
All hearing proceedings shall be conducted on the date set. For good cause shown, a postponement may be granted at the discretion of the Board of Ethic’s Chair. Complainant or Respondent shall be granted one continuance as of right at the first scheduled hearing on a matter after there has been a determination of jurisdiction should they wish additional time to retain counsel or if the matter was scheduled without consultation with the respective party. The purpose of hearing proceedings is to provide a prompt resolution of alleged code violations and, accordingly, the request for and the grant of, continuances shall be curtailed to the extent fairness permits.
1-10-16. - REFERRAL OF FINAL OPINIONS OF THE ETHICS BOARD TO THE CITY COUNCIL FOR FINAL ACTION.
The following are the procedures to be followed when a final opinion of an ethics complaint is forwarded to the City Council for action.
(A) The Chair of the Board of Ethics shall forward the Board of Ethics Opinion to the City Manager. Upon receipt, the City Manager shall put the Board of Ethics Opinion on the Agenda at the next regularly scheduled City Council meeting. If the Opinion falls within one of the Open Meetings Act exceptions (5 ILCS 120/2(c)), the Opinion shall be placed on the Executive Session agenda. All final action must be taken in Open Session. (B) At the next meeting of the City Council, the Board of Ethics Final Opinion will be considered. (C) Any time prior to the issuance of the final opinion by the City Council, the Board of Ethics may amend the Opinion to address the allegations against the respondent ordered per Section 1-10-14. Any final settlement must be approved by the City Council. Whether the settlement is made public or not is determined by the City Council. For settlement purposes the hearing may be continued from time to time at the discretion of the City Council. (D) If an Elected Official, a member of the City Board of Ethics, or the City Manager are the subject of the Complaint, they are barred from all participation directly or indirectly in the complaint process including voting on said Complaint, except where they are to provide testimony or evidence relating to the Complaint, or provide testimony or evidence to refute said Complaint. (E) If an elected official, other than the Mayor, is the subject of the alleged ethical violation, the Mayor shall also have a vote on discipline. The Mayor and
~16~
Page 17 of 22
A23. Page 357 of 574 20-O-19
Alderman may not vote on discipline in which they are the subject of the alleged ethical violation. (F) A two-thirds majority vote by the City Council is needed to overturn a final decision issued by the Board of Ethics.
1-10-17. - ENFORCEMENT AND PENALTIES.
(A) Discipline for elected officials and appointed officials. The City Council may take action against any elected official or appointed official who has been found by the City Council to violate the Code of Ethics. Actions that the City Council may take against elected officials and appointed officials include but are not limited to: counseling, reprimand, public censure or fine. The City Council may, where appropriate, discharge appointed officials. The City Council may not discharge an elected official. The fine may not be less than one hundred dollars ($100.00) nor more than seven hundred fifty dollars ($750.00). The fine will be due thirty (30) days after issuance. (B) Discipline for employees. In each instance where the City Manager takes such action, the City Manager shall make a written report to the City Council of the facts surrounding the violation of this Code of Ethics and explain what action, if any, was taken, to discipline the employee. For those employees covered under a collective bargaining agreement, discipline will be given in accordance with their collective bargaining agreement.
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: If any provision of this ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 4: Ordinance 20-O-19 shall be in full force and effect after its
passage and approval.
SECTION 5: The findings and recitals contained herein are declared to
be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
~17~
Page 18 of 22
A23. Page 358 of 574 20-O-19
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~18~
Page 19 of 22
A23. Page 359 of 574
BOARD OF ETHICS RULES OF PROCEDURE
These Rules of Procedure (the “Rules”) for the Evanston Board of Ethics (the “Board”), as amended, replace and supersede all prior versions. The effective date is the date of adoption of Ordinance 20-O-19 by the City Council, ______, 2019.
I. ADMINISTRATION
A. Intent: It is the intent of the Evanston Board of Ethics that these Rules are intended to set forth the procedures to implement the requirements of Title 1, Chapter 10 “Board of Ethics”, of the Evanston City Code of 2012, as amended (the “City Code”). The City Code and these Rules govern the procedures by which the Board must operate. Adherence to the City Code and all other applicable Federal, State, and local regulations are of paramount concern and consideration. The Rules shall fully replace all prior rules of procedure for the Board. In the event of any contradiction between these Rules and the City Code, the Code shall prevail, and if the Code is silent on an issue, the Rules shall prevail.
B. Definitions:
1. “Board” or “Board of Ethics” shall mean and refer to the Evanston Board of Ethics appointed by the Mayor and approved by the City Council, pursuant to Title 1, Chapter 10 of the City Code.
2. “Board member” shall mean a member of the Evanston Board of Ethics.
3 “Code of Ethics” shall mean and refer to Title 1, Section 10 of the City Code, as it may be amended from time to time.
4. “City” shall mean the City of Evanston, Cook County, Illinois.
5. “City Code” shall mean the City of Evanston Code of 2012, as amended.
C. Board Members: The Board shall consist of five (5) members appointed by the Mayor with the advice and consent of the City Council for a two (2) year term. A member shall not serve more than two (2) terms on the Board of Ethics. A Board Chair will be appointed by the Mayor annually.
D. The Board:
1. The Board will consist of a Chairperson and a Vice-Chairperson. The Board will elect a Vice-Chair each year at the first meeting in January or at a meeting as close to that date as practicable.
E. Meetings:
Page 20 of 22
A23. Page 360 of 574 20-O-19
1. Regular meetings of the Board shall be held on the third Tuesday of the month at 7:00 p.m. in the Civic Center at 2100 Ridge Avenue, Evanston, Illinois. Notice shall be posted of all meetings and conducted in accordance with the Illinois Open Meetings Act, 5 ILCS 120/1 et seq.
2. Special meetings shall be open. Notice of a special meeting shall be posted at least forty-eight (48) hours prior to convening and it shall set forth the time and place of such special meeting and the specific agenda items to be discussed. No other business shall be discussed at such a special meeting except for the agenda items listed.
3. All meetings shall be open to the public except for deliberations on inquiries and advisory opinions and pursuant to those exceptions set forth in the Illinois Open Meetings Act 5 ILCS 120/1 et seq. During any regular or special meeting, a closed session may be held upon a proper motion made by any single member of the Board for the purpose of discussions permitted under the Open Meetings Act. Closed sessions may be limited to Board members and such invited persons as the Board deems necessary. The Staff liaison will record the motion to close the meeting and keep minutes of the closed session. Closed sessions shall be taped, audibly or visually, with said tapes being maintained for a period not less than 60 days.
4. Written minutes of the Board meetings which are open to the public shall be taken either by a designated Board member or the staff liaison.
5. Abstention. If any member of the Board wishes to abstain from participating in a particular case, they shall announce that fact on the record, stating the reason for such abstention.
F. Quorum: A quorum of the Board shall be three (3) members.
G. Order of Business: The order of business shall be dictated by a packet and agenda prepared and presented to the Board in advance and the order of business shall typically be as follows:
I. Approval of the minutes II. Communications III. Old Business IV. New Business V. Adjournment
The Chair may alter the Order of Business.
H. Rules of Procedure: The Board shall be guided by parliamentary law as prescribed in Roberts Rules of Order, as amended, unless in conflict with these Rules and if such a conflict exists, these Rules shall govern.
~2~
Page 21 of 22
A23. Page 361 of 574 20-O-19
I. Amendments to the Rules: Proposed amendments to these Rules may be proposed at any open meeting of the Board and shall be done in consultation with the Special Counsel. Any and all amendments proposed by the Board shall be transmitted to the Rules Committee of the City Council for its consideration and approval.
J. Citizen Comment: All meetings open to the public shall provide time for public comment. The following rules apply:
1. The comments of individual citizens shall not exceed three (3) minutes. 2. The comments of a group of citizens, such as an organization, association, or similar assemblage of individuals shall not exceed ten (10) minutes. 3. All time limits may be modified at the discretion of the chairperson. Reasonable adjustments may be made on a case by case basis to accommodate the requirements of extraordinary situations. 4. Citizen comment will be permitted at a preliminary hearing. It will not be permitted at a full hearing, in which the Board only allows testimony from the Complainant, Respondent, or counsel for either party.
II. DISQUALIFICATION
A Board member, the Board staff member or the Special Counsel shall disqualify themselves from participating in any matter before the Board in which their impartiality might reasonably be questioned, including, but not limited to, instances where they have a personal bias or conflict of interest concerning a party or personal involvement in the matter to be addressed. No Board member shall discuss a pending Complaint with anyone outside of the Board, the Board’s staff member or the Special Counsel during the pendency of the complaint; this includes any ex parte discussion between Board members and the Complaint, the Respondent and any witnesses.
~3~
Page 22 of 22
A23. Page 362 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of the Plan Commission From: Ike Ogbo, Interim Health & Human Services Director CC: Michelle Masoncup, Corporation Counsel Subject: Ordinance 98-O-19, Amending Title City Code 3, Chapter 31 Regarding the Regulation of Collection Boxes Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 98-O-19 “Amending Chapter 31 to Title 3 of the Evanston City Code Regulating Collection Boxes,” which provides clearer guidance as to size and location restrictions of collection boxes, as well as explicitly empowering make to Department Services Human Health the of Director the and administrative decision in conformance with the Code for regulation of collection boxes.
Council Action: For Action
Summary: Ordinance 98-O-19 amends Title 3, Chapter 31 “Collection Boxes.” The Ordinance takes suggestions from the Health and Human Services Department as well as the Zoning Division, to clarify regulations concerning collection boxes in the City.
Section 3-31-3 is amended to clarify that, in addition to the $150 annual registration fee per applicant, there is a $75 fee per collection box.
Section 3-31-4(D) of the Code is amended to give collection box owners 7 days from the date of notice from the City to respond to any complaints regarding their collection box. The Code previously gave collection box owners 24 to 48 hours from receiving notification to respond to any such complaints. This amendment addresses the concern that it is difficult to determine when a collection box owner receives notification of a complaint and the time frame, 24 for 48 hours, is too short of a time period to properly respond to a complaint.
Section 3-31-4(G) of the Code is amended to prohibit collection boxes from being placed within 3 feet of the property line. This replaces the previous language stating that collection
A24. Page 363 of 574 boxes should be placed in an inconspicuous location, which defeated the purpose of having a collection box on a property to begin with. The restriction on placing collection boxes 3 feet from the property line, brings the Code in conformity with the City’s current practices regarding collection box regulation. Recognizing that the Code cannot address every possible scenario regarding collection box regulation, Section 3-31-4(G) is amended to give the Director of Health and Human Services or his/her designee the discretion to determine the exact location of collection boxes on a property.
Section 3-31-4(I) of the Code is further amended to give the Director of Health and Human Services or his/her designee the discretion to place more than one collection box on a property. The Code currently allows only one collection box per property, but the amendment addresses the situation where more than one collection box is necessary in high-traffic areas in order to prevent the accumulation of donations in and around the collection box, causing a nuisance.
Section 3-31-4(J) is amended to increase the maximum height of a collection box from 6.5 feet to 7 feet to match the current specifications for collection boxes
Finally, Section 3-31-6(A) is amended to mandate that a licensee whose license was revoked or a person who places a collection box without a license must remove the collection box within 7 days of the date of notice from the City. The Code previously gave collection box owners 24 to 48 hours from receiving notification to remove the collection box. The amendment addresses the concern that it is difficult to determine exactly when a collection box owner receives notification and that 24 for 48 hours may be too short of a time period to remove a collection box.
Attachments: Ordinance 98-O-19 Regulation of Collection Boxes
Page 2 of 7
A24. Page 364 of 574 8/20/2019 10/8/2019
98-O-19
AN ORDINANCE
Amending Chapter 31 to Title 3 of the Evanston City Code Regulating Collection Boxes
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: Title 3, Chapter 31 “Collection Boxes” of the Evanston City
Code of 2012, as amended, is hereby further amended to read as follows:
CHAPTER 31 – COLLECTION BOXES
3-31-1: DEFINITIONS:
Collection Box An unattended container, receptacle, or similar device that is used for soliciting and collecting donations of clothing or other salvageable personal property. This term does not include any unattended collection box located within a building. Retail Center Any concentration of two (2) or more retail stores and/or service establishments in one or more buildings, or on one or more adjacent lots, under single ownership or management or multiple ownership on contiguous or adjacent lots with one or more of the following:
(A) Common parking facilities,
(B) Common stormwater detention, drainage or storm sewer facilities,
(C) Common water distribution facilities,
(D) Common sanitary sewer
Page 3 of 7
A24. Page 365 of 574 98-O-19
facilities,
(E) Nonexclusive ingress or egress from public streets. Site Host The property owner, local agent, or local occupant of the site where the collection box is placed or is intended to be placed.
3-31-2: LICENSE REQUIRED:
It shall be unlawful for any person, firm or corporation to place a collection box or to allow to be placed or permit the placement of a collection box on its own property without first having obtained a license as herein provided.
3-31-3: APPLICATION FOR LICENSE; FEE:
Any person desiring to place a collection box within the City, shall make application for a license to the City Collector, setting forth in such application the name of the applicant requesting the license for the collection boxes, the number and locations of the collection boxes, and the type of merchandise being collected at the collection box. Such license shall be issued upon payment to the City Collector of the following fees:
Annual Registration Fee Per Applicant $150 per applicant Additional Fee Per Additional Box $75 per box
The license fees provided for herein shall be payable in full at the time of issuance of said license, and any such license shall expire on December 31 next after issuance. Not-for-profit organizations located in Evanston operating a collection box shall be exempt from paying the license fee.
3-31-4: REQUIREMENTS AND RESTRICTIONS:
(A) Placement of a collection box is permitted only in retail centers, schools, religious institutions, and buildings owned and operated by not for profit organizations.
(B) The collection box owner shall submit written authorization from the site host consenting to the placement of a collection box on the subject property.
(C) Collection boxes must display the license sticker on the front of the collection box.
(D) Collection box owners must respond to any and all complaints regarding collection box maintenance within twenty four (24) hours of receiving notification Monday through Friday and forty eight (48) hours of receiving
~2~
Page 4 of 7
A24. Page 366 of 574 98-O-19
notification Saturday and Sunday seven (7) days of the date of notice from the City.
(E) Collection boxes shall not be on any permeable surface.
(F) Collection boxes shall not be located in a parking space.
(G) Collection boxes shall not be placed within a required front or corner side yard, or major arterial setback. To the extent feasible, collection boxes shall be placed in the rear or side of a property so as to be inconspicuous as viewed from public rights of way three (3) feet of the property line. The exact location of the collection box on the property shall be within the discretion of the Director of Health and Human Services or his/her designee.
(H) Collection boxes shall not be placed in such a manner as to cause a sight obstruction for pedestrians or motorists.
(I) Only one collection box shall be permitted per lot or per retail center, school, religious institution, or not for profit organization property, whichever is more restrictive. The Director of Health and Human Services or his/her designee may provide written consent to an applicant’s request for the placement of an additional collection box based on size and location considerations.
(J) Collection boxes shall not exceed six and one-half feet (6.5') seven (7’) in height.
(K) Collection boxes shall not possess a footprint exceeding twenty (20) square feet.
(L) Collection boxes shall indicate whether the operator is a for profit or not for profit organization in two inch (2") type visible from the front of the collection box.
(M) Collection boxes shall contain the following contact information in two inch (2") type visible from the front of the box: the name, address, e-mail and phone number of the owner of the collection box.
(N) Collection boxes shall be maintained in good condition and appearance with no structural damage, holes, or visible rust and shall be free of graffiti. All boxes shall be serviced regularly so as to prevent overflow of collections or the accumulation of junk, debris or other material. Upon servicing, any and all material must be removed.
3-31-5: REVOCATION OF LICENSE:
~3~
Page 5 of 7
A24. Page 367 of 574 98-O-19
Any licensee who receives three (3) or more violations of the provisions of this article shall have their license revoked. Any licensee whose license was revoked may request a hearing before the Division of Administrative Adjudication to appeal any such revocation.
3-31-6: REMOVAL; REMOVAL FEE:
(A) Any licensee whose license was revoked or any person who places a collection box without a license will be required to remove the collection box within forty eight (48) hours seven (7) days of the date of notice after receiving notice to remove same. The City may remove any box remaining after said forty eight (48) hour seven (7) day period. In this event, the site host wherein the collection box is located may be required to pay a removal fee to the City.
(B) In the event a property owner, local agent, or local occupant has a collection box placed on their property without their consent and has no intention of being a site host, they shall notify the City of Evanston regarding the collection box. The City of Evanston will consult with the property owner, local agent, or local occupant regarding the removal of any collection box that may have been placed without the property owner’s consent.
3-31-7: PENALTY:
Any person, firm or corporation who violates any of the provisions of this article shall be fined two hundred dollars ($200.00) for each offense. A separate offense shall be deemed committed on each day on which a violation occurs or continues to exist. The licensee and the site host are jointly and severally liable for adhering to the provisions of this article and any fees or penalties associated therewith.
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: The findings in this Ordinance, and the legislative Record, are
declared to be prima facie evidence of the law of the City of Evanston, and shall be
received in evidence as provided by the Illinois Compiled Statutes and the courts of the
State of Illinois.
SECTION 4: If any provision of this ordinance or application thereof to
~4~
Page 6 of 7
A24. Page 368 of 574 98-O-19
any person or circumstance is ruled unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 5: Ordinance 98-O-19 shall be in full force and effect after its
passage and approval.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~5~
Page 7 of 7
A24. Page 369 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Hitesh Desai, Chief Financial Officer Subject: Ordinance 129-O-19, Amending City Code Section 1-17-1 “Purchases of Goods and Services” Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 129-O-19, amending City Code Section 1-17-1 “Purchases of Goods and Services”. This ordinance will allow for the current purchasing limit threshold requiring City Council approval to be raised from $20,000 to $25,000.
Council Action: For Action
Summary: After a review of neighboring communities, a change in State law and an increase in the Consumer Price Index (CPI), staff recommends the purchasing limit requiring City Council approval increase by $5,000. Currently, if a purchase is over $20,000 staff formally bids the project or issues a Request for Proposal and seeks Council approval. If approved, the purchasing limit would increase from $20,000 to $25,000.
Staff reviewed many neighboring communities and found that 5 offered purchasing limits of $25,000 (Arlington Heights, Aurora, Joliet, Naperville and Oak Park) with one at $50,000 (Cicero). All of these communities are of similar size and spending to the City of Evanston.
In addition, State and County law states that Public Works projects over $25,000 require Council approval, so staff recommends making it consistent throughout all City departments.
City/Township Purchasing Limit Arlington Heights $25,000 Aurora $25,000 Cicero $50,000 Joliet $25,000
A25. Page 370 of 574 Naperville $25,000 Oak Park $25,000
Between September of 2018 and August of 2019, there were 119 purchases that went to City Council for approval. Of those, only 3 were between $20,000 and $25,000 (Summer Bus Transportation, Handyman Contract, and West Filter Plant Backwash Rate Controller), and only 5 were between $25,000 and $30,000. There were 11 for $30,000 - $40,000, 9 for $40,000 to $50,000, 24 from $50,000 to $100,000, and 67 were over $100,000. This shows that the purchasing rate increase will have very little impact on what goes to Council for approval. The majority of purchases sent to City Council for approval are over $50,000.
According to the Bureau of Labor Statistics consumer price index, today's prices in 2019 are 31.37% higher than average prices throughout 2005. Using the Consumer Price Index, staff determined that $20,000 in 2005 (CPI of 190.70) is approximately $26,398 in 2019 (CPI of 251.71).
251.71 / 190.70 = 1.32, 1.32 x $20,000 = $26,398 (value of $20,000 in 2019)
Due to the increase in consumer prices and the change in state law that the City typically mirrors, increasing the spending limit will make purchasing process more efficient and put the City in line with other communities.
The City’s purchasing limit requiring City Council approval was last updated fourteen years ago in 2005, which at the time raised the limit from $15,000 to $20,000.
Legislative History: Ordinance 88-O-05, Amending Section 1-17-1(A) of the Evanston City Code Increasing the Bid Limit from $15,000 to $20,000
Attachments: 129-O-19 Amending 1-17-1 purchase of goods and services from $20,000 to $25,000
Page 2 of 5
A25. Page 371 of 574
10/2/2019
129-O-19
AN ORDINANCE
Amending City Code Section 1-17-1, “Purchases of Goods or Services”
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: City Code Subsection 1-17-1, “Purchases of Goods or
Services,” of the Evanston City Code of 2012, as amended, is hereby further amended
to read as follows:
1-17-1. - PURCHASES OF GOODS OR SERVICES.
(A) All contracts for the purchase of goods or services costing in excess of twenty- five thousand dollars ($20,000.00) ($25,000.00) to be utilized in the conduct of the affairs of the City, shall be let by the City Manager or his/her designee, with the approval of the City Council, to a reliable, responsible and acceptable bidder, after advertising for the same, and bonds to be approved by the City Council may be taken for the faithful performance thereof. The City Manager, or his/her designee, may reject all bids and shall subsequently advise the City Council of his/her action or, with the approval of the City Council, may award the contract to a bidder other than the lowest bidder if it should be determined that such action would be in the best interest of the City. Any such contract may also be entered into by the proper officers without advertising for bids upon the authorization of the City Council by a vote of two-thirds (2/3) of all Aldermen then holding office. Notwithstanding the above, the City Manager or his/her designee shall have the authority to make purchases in excess of twenty-five thousand dollars ($20,000.00) ($25,000.00) without prior council approval when there is an imminent threat to the property of the City or its citizens or the health and welfare of its citizens; or when there is a substantial economic benefit to the City not otherwise obtainable; providing, however, that
Page 3 of 5
A25. Page 372 of 574 129-O-19
a report of said purchase shall be promptly made to the City Council. All other contracts for the provision of goods or services to be utilized in the conduct of the affairs of the City shall be let by the City Manager or his/her designee to a reliable, responsible person, firm or agency without the necessity of advertising for bids, or of obtaining prior City Council approval. Bonds may be taken for faithful performance of such contracts. This provision shall not apply to contracts for work, material or supplies to be paid in whole or in part by special assessment.
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: If any provision of this ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 4: Ordinance 129-O-19 shall be in full force and effect after its
passage and approval.
SECTION 5: The findings and recitals contained herein are declared to
be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
~2~
Page 4 of 5
A25. Page 373 of 574 129-O-19
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~3~
Page 5 of 5
A25. Page 374 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of Administration and Public Works Committee From: Hitesh Desai, Chief Financial Officer Subject: Ordinance 144-O-19, Approving and Authorizing the Issuance and Sale of Not-to-Exceed of Series 2019A and Series 2019B (Chiaravalle Montessori School) of the City of Evanston, Illinois, For the Benefit of Chiaravalle Montessori School; Authorizing the Execution and Delivery of a Bond, Loan Agreement and Other Documents Related Thereto; Authorizing the Sale of Said Bonds to Fifth Third Bank, N.A.; and Approving Related TEFRA hearing (Chiaravalle Conduit Financing) Date: November 11, 2019
Recommended Action: Staff recommends City Council adoption of Ordinance 144-O-19, Approving and Authorizing the Issuance and Sale of Not to Exceed $3,925,000 Aggregate Principal Amount of Revenue Bonds, Series 2019A (Chiaravalle Montessori School) and $3,735,000 Aggregate Principal Amount of Revenue Bonds, Series 2019B (Chiaravalle Montessori School) of the City of Evanston, Authorizing School; Montessori Chiaravalle the Benefit the For Illinois, of Execution and Delivery of a Bond and Loan Agreement and Other Documents Related Thereto; Authorizing the Sale of Said Bonds to Fifth Third Bank, N.A.; and Approving Related Matters Thereto.
Funding Source: The City will not incur a liability to repay this debt in the event of a default by Chiaravalle Montessori School.
Council Action: For Action
Summary: Chiaravalle, an Illinois not-for-profit corporation, has requested the City act as the conduit financing ordinance an is Attached for debt their authority approving issuance. and authorizing the Issuance and sale of not to exceed $3,925,000 aggregate principal amount of Revenue Bonds, Series 2019A (Chiaravalle Montessori School) and $3,735,000 aggregate principal amount of Revenue Bonds, Series 2019B (Chiaravalle Montessori School) of the City of Evanston, Illinois, for the benefit of Chiaravalle Montessori School; authorizing the
A26. Page 375 of 574 execution and delivery of a bond and loan agreement and other documents related thereto; authorizing the sale of said Bonds to Fifth Third Bank, N.A.; and approving related matters thereto.
Chiaravalle requests the 2019A Bonds be issued in order to be used, together with other available funds to (i) refund the City of Evanston Revenue Refunding Bonds, Series 2014A, and (ii) pay certain costs incurred in connection with the issuance of the Series 2019A Bonds and the refunding of the Refunded Series 2014A Bonds (collectively, the “Series 2019A Financing Purposes”).
Chiaravalle also desires that the Series 2019B Bonds be issued in order to be used, together with other available funds to (i) refund the City of Evanston Revenue Bonds, Series 2014B (Chiaravalle Montessori School) ((ii) finance or refinance, or reimburse itself for, the cost of further renovation, exterior and interior expansion, improvement and equipping of the School Facility (the “Series 2019B Project”), (iii) fund certain working capital and iv) pay certain costs incurred in connection with the issuance of the Series 2019B Bonds and the refunding of the Refunded Series 2014B Bonds (collectively, the “Series 2019B Financing Purposes” and together with the Series 2019A Financing Purposes, the “Financing Purposes”).
In 2014, the City issued conduit bonds on behalf of Chiaravalle Montessori School, which is an Illinois not-for-profit corporation.
Attachments: Ordinance 144-O-19 Chiaravalle Montessori Series 2019 Chiaravalle Montessori Series 2019 -- Bond and Loan Agreement Chiaravalle Montessori Series 2019 -- Bond Purchase Agreement Chiaravalle Montessori Series 2019 -- Closing Index
Page 2 of 91
A26. Page 376 of 574 144-O-19
An Ordinance
Approving and Authorizing the Issuance and Sale of Not to Exceed $3,925,000 Aggregate Principal Amount of Revenue Bonds, Series 2019A (Chiaravalle Montessori School) and $3,735,000 Aggregate Principal Amount of Revenue Bonds, Series 2019B (Chiaravalle Montessori School) of the City of Evanston, Illinois, For the Benefit of Chiaravalle Montessori School; Authorizing the Execution and Delivery of a Bond and Loan Agreement and Other Documents Related Thereto; Authorizing the Sale of Said Bonds to Fifth Third Bank, N.A.; and Approving Related Matters Thereto
WHEREAS, pursuant to the provisions of Section 6(a) of Article VII of the
1970 Constitution of the State of Illinois, the City of Evanston, Cook County, Illinois (the
“City”), a municipality and home rule unit of the State of Illinois (the “State”), is
authorized and empowered to exercise any power or perform any function pertaining to
its government or affairs, including the issuance of revenue bonds to finance projects
within the territorial limits of the City or to refund bonds issued to finance said projects,
and may authorize the issuance of such revenue bonds by ordinance adopted by the
City Council of the City (the “City Council”); and
WHEREAS, Chiaravalle Montessori School, an Illinois not for profit
corporation (the “Borrower”), has requested that the City Council approve the issuance
by the City of qualified 501(c)(3) revenue bonds under Section 145 of the Internal
Revenue Code of 1986, as amended (the “Code”), through the issuance of its Revenue
Bonds, Series 2019 (Chiaravalle Montessori School) (the “Series 2019A Bonds”) and its
Revenue Bonds, Series 2019B (Chiaravalle Montessori School) (the “Series 2019B
Bonds” and collectively with the Series 2019A Bonds, the “Bonds”); and
Page 3 of 91
A26. Page 377 of 574 WHEREAS, the Borrower desires that the Series 2019A Bonds be issued
in order to be used, together with other available funds to (i) refund the City of Evanston
Revenue Refunding Bonds, Series 2014A (Chiaravalle Montessori School) (the “Series
2014A Bonds” and those Series 2014A Bonds being refunded, the “Refunded Series
2014A Bonds”), the proceeds of which were used to finance certain prior bonds of the
City, which such prior bonds were used to finance the acquisition of land at 425
Dempster Street and an existing school facility then owned by the City and previously
leased and operated by the Borrower (the “School Facility”) as well as renovations and
improvements to the School Facility, and (ii) pay certain costs incurred in connection
with the issuance of the Series 2019A Bonds and the refunding of the Refunded Series
2014A Bonds (collectively, the “Series 2019A Financing Purposes”); and
WHEREAS, the Borrower desires that the Series 2019B Bonds be issued
in order to be used, together with other available funds to (i) refund the City of Evanston
Revenue Bonds, Series 2014B (Chiaravalle Montessori School) (the “Series 2014B
Bonds” and those Series 2014B Bonds being refunded, the “Refunded Series 2014B
Bonds” and together with the Refunded Series 2014A Bonds, the “Refunded Bonds”),
the proceeds of which were used to finance the costs of renovation, exterior and interior
expansion, improvement and equipping of the School Facility (the “Series 2014B
Project”), (ii) finance or refinance, or reimburse itself for, the cost of further renovation,
exterior and interior expansion, improvement and equipping of the School Facility (the
“Series 2019B Project”), (iii) fund certain working capital, and (iv) pay certain costs
incurred in connection with the issuance of the Series 2019B Bonds and the refunding
of the Refunded Series 2014B Bonds (collectively, the “Series 2019B Financing
-2-
Page 4 of 91
A26. Page 378 of 574 Purposes” and together with the Series 2019A Financing Purposes, the “Financing
Purposes”); and
WHEREAS, in 2014 when the City approved the issuance of the Series
2014 Bonds, the City designated the Series 2014 Bonds as “qualified tax–exempt
obligations” as defined in Section 265(b)(3)(B) of the Code; and
WHEREAS, the City wishes to provide financing to the Borrower for the
Financing Purposes through the issuance and sale of the Bonds, which will be issued
pursuant to a Bond and Loan Agreement (the “Loan Agreement”) by and among the
City, the Borrower and Fifth Third Bank, N.A., as the purchaser of the Bonds (the
“Purchaser”), and in accordance with this Ordinance authorizing the issuance of the
Bonds; and
WHEREAS, in connection with the issuance of the Bonds, it is now
necessary, desirable and in the best interests of the City to authorize the execution and
delivery of the Loan Agreement, a Tax Compliance Agreement dated the date of
issuance of the Series 2019A Bonds (the “Series 2019A Tax Compliance Agreement”),
between the City and the Borrower, a Tax Compliance Agreement dated the date of
issuance of the Series 2019B Bonds (the “Series 2019B Tax Compliance Agreement”
and together with the Series 2019A Tax Compliance Agreement, the “Tax Compliance
Agreements”), the Bond Purchase Agreement (the “Series 2019A Purchase Contract”)
among the Issuer, the Borrower and the Purchaser and the Bond Purchase Agreement
(the “Series 2019B Purchase Contract” and together with the Series 2019A Purchase
Contract, the “Purchase Contracts”) among the Issuer, the Borrower and the
Purchaser]; and
-3-
Page 5 of 91
A26. Page 379 of 574 WHEREAS, the proposed form of the Loan Agreement, including the form
of Bond attached thereto as Exhibit A, has been prepared and is on file with the City
Treasurer; and
WHEREAS, the financing of the Financing Purposes and the issuance of
the Bonds will be beneficial economically to the Borrower and will enable the Borrower
to offer more of its services to the City’s residents thereby promoting the well-being of
the residents of the City and will enhance the quality of life of the residents of the City
and therefore is for a proper public purpose; and
WHEREAS, the Bonds shall be special, limited obligations of the City,
payable solely from the revenues and income pursuant to the Loan Agreement, and the
Bonds shall not constitute an indebtedness or obligation of the City, the State or any
political subdivision thereof or a loan of credit of any of them, within the meaning of any
constitutional or statutory provision, or a charge against the general credit or taxing
powers, if any of the City, the State or any political subdivision thereof; and no holder of
any Bond shall have the right to compel any exercise of the taxing power of the City, the
State or any political subdivision thereof, to pay the principal of the Bonds or the interest
or premium, if any, thereon; and
WHEREAS, the Purchaser has agreed to buy the Bonds on a negotiated
basis; and
WHEREAS, pursuant to the provisions of Section 147(f) of the Code, the
City Council, being the elected legislative body of the City and the applicable elected
representative required to approve the issuance of the Bonds within the meaning of
Section 147(f) of the Code, held a public hearing on the proposed plan to refund the
-4-
Page 6 of 91
A26. Page 380 of 574 Refunded Bonds and finance the 2019B Project and the issuance of the Bonds on
October 28, 2019, pursuant to notice published at least seven (7) days prior to such
public hearing in the Chicago Sun-Times, a newspaper of general circulation in the City,
on October 18, 2019,
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of
Evanston, Cook County, Illinois, as follows:
SECTION 1. All of the recitals contained in the preambles to this Ordinance are true,
correct and complete and are hereby incorporated by reference thereto and are made a part hereof.
SECTION 2. The Financing Purposes are hereby authorized and
determined to be in the public interest and in furtherance of the public purposes of the
City.
In order to provide for the Financing Purposes, there shall be and there is
hereby authorized to be issued by the City two series of bonds: (i) the Series 2019A
Bonds to be dated the date of issuance, in the aggregate principal amount not to
exceed $3,925,000; and (ii), the Series 2019B Bonds to be dated the date of issuance,
in the aggregate principal amount not to exceed $3,735,000.
The Bonds shall initially bear interest at fixed interest rates as provided in
the Loan Agreement; the Bonds shall be dated and executed in the manner set forth in
the Loan Agreement; shall bear interest from their date on the unpaid principal thereof
at rates not exceeding the maximum rate per annum permitted under Illinois law; shall
mature no later than November 1, 2045; and shall be subject to redemption and tender
prior to maturity at the times, under the circumstances, in the manner and at the
redemption prices or purchase prices set forth in the Loan Agreement, as executed and
delivered.
-5-
Page 7 of 91
A26. Page 381 of 574 The Bonds are issued in the exercise of the City’s powers as a home rule
unit of government under the provisions of Article VII, Section 6(a) of the 1970
Constitution of the State of Illinois and this Ordinance, and do not and shall never
constitute an indebtedness or obligation of the City, the State or any political subdivision
thereof or a loan of credit of any of them, within the meaning of any constitutional or
statutory provision, or a charge against the general credit or taxing powers, if any, of the
State, the City, or any other political subdivision thereof. The Bonds are special, limited
obligations of the City, payable solely out of the revenues and income of the City
derived pursuant to the Loan Agreement. No owner of the Bonds shall have the right to
compel any exercise of the taxing power of the City, the State or any other political
subdivision thereof, to pay the principal of the Bonds or the interest or premium, if any,
thereon.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on the Bonds or for any claim based thereon or upon any obligation,
covenant or agreement in the Loan Agreement against any past, present or future
member, officer, alderman, agent, employee or official of the City. No covenant,
stipulation, promise, agreement or obligation contained in the Bonds, the Loan
Agreement or any other document executed in connection therewith shall be deemed to
be the covenant, stipulation, promise, agreement or obligation of any present or future
official, officer, alderman, agent or employee of the City in his or her individual capacity
and neither any official of the City nor any officers executing the Bonds shall be liable
personally on the Bonds or be subject to any personal liability or accountability by
reason of the issuance of the Bonds.
-6-
Page 8 of 91
A26. Page 382 of 574 SECTION 3. The Bonds shall be executed on behalf of the City with the
manual or facsimile signature of the Mayor and attested with the manual or facsimile
signature of the City Clerk of the City and shall have printed thereon a facsimile of its
official seal or impressed thereon manually its official seal. In case any officer who shall
have signed (whether manually or in facsimile) any of the Bonds shall cease to be such
officer of the City before the Bonds have been delivered, such Bonds with the
signatures thereto affixed may nevertheless be delivered as though the person or
persons who signed such Bonds had remained in office.
SECTION 4. The form, terms and provisions of the Loan Agreement and
the Purchase Contracts, are hereby in all respects approved, and the Mayor is hereby
authorized, empowered and directed to execute and deliver the Loan Agreement, the
Purchase Contracts in the name and on behalf of the City. The Loan Agreement and
the Purchase Contracts, as executed and delivered, shall be in substantially the form
now on file with the City Treasurer and hereby approved, or with such changes therein
as shall be approved by the officer of the City executing the same. Execution of the
Loan Agreement, the Purchase Contracts shall constitute conclusive evidence of such
officer’s approval of any and all changes or revisions therein from the form of the Loan
Agreement and the Purchase Contract now before this meeting; and from and after the
execution and delivery of the Loan Agreement, the Purchase Contracts, the officers,
agents and employees of the City are hereby authorized, empowered and directed to do
all such acts and things and to execute and approve all such documents as may be
necessary to carry out the intent and accomplish the purposes of this Ordinance and the
Loan Agreement, including the approval of a mortgage or other security interests
-7-
Page 9 of 91
A26. Page 383 of 574 granted by the Borrower to secure the Bonds, and to comply with and make effective
the provisions of the Loan Agreement, the Purchase Contracts, as executed.
The City is hereby authorized to enter into the Tax Agreements with the
Borrower in the form to be approved by bond counsel, by counsel for the City and by
counsel for the Borrower; that the Mayor of the City be, and each of them hereby is,
authorized, empowered and directed to execute and deliver the Tax Agreement in the
form so approved; that when the Tax Agreement is executed and delivered on behalf of
the City as hereinabove provided, such Tax Agreement will be binding on the City; and
that from and after the execution and delivery of the Tax Agreement, the officers,
employees and agents of the City are hereby authorized, empowered and directed to do
all such acts and things and to execute all such documents as may be necessary to
carry out and comply with the provisions of such Tax Agreement as executed.
SECTION 5. The sale of each series of the Bonds to the Purchaser at a
price equal to no less than 98% of the principal amount thereof applicable to each
series, is hereby authorized and approved.
SECTION 6. From and after the execution and delivery of the foregoing
documents, the proper officials, agents and employees of the City are hereby
authorized, empowered and directed to do all such acts and things and to execute all
such documents, including a Letter of Representations with The Depository Trust
Company, as may be necessary to carry out and comply with the provisions of said
documents as executed, and to further the purposes and intent of this Ordinance,
including the preambles hereto.
-8-
Page 10 of 91
A26. Page 384 of 574 SECTION 7. Pursuant to Section 265(b)(3)(D)(i) of the previously defined
Code, the City may issue not more than $10,000,000 of bonds it designates as
“qualified tax-exempt obligations”. In addition to bonds designated as “qualified tax-
exempt obligations” pursuant to Section 265(b)(3)(D)(i) of the Code, certain bonds may
be “deemed” designated as “qualified tax-exempt obligations” if such bonds meet the
requirements of Section 265(b)(3)(D)(ii) of the Code. For purposes of this Section, the
term “tax-exempt obligations” includes “governmental use bonds” and “qualified
501(c)(3) bonds” (as defined in Section 145 of the Code) but does not include other
“private activity bonds” (as defined in Section 141 of the Code). Since the proceeds of
the Series 2019A Bonds are being used to currently refund the previously described
Refunded Series 2014A Bonds and the Series 2019A Bonds meet the other
requirements of Section 265(b)(3)(D)(ii) of the Code, the Series 2019A Bonds are
deemed designated as “qualified tax-exempt obligations” pursuant to Section
265(b)(3)(D)(ii) of the Code.
SECTION 8. The publication of the notice of the public hearing and the
conduct of such public hearing by the City Council on October 28, 2019 are hereby, in
all respects, ratified, approved and confirmed. The City Council, as an “applicable
elected representative” of the City pursuant to Section 147(f) of the Code, hereby
approves the issuance of the Bonds to finance the Financing Purposes, and the plan of
financing, under the terms and conditions set forth herein. This approval shall constitute
the approval of the Bonds pursuant to Section 147(f) of the Code.
-9-
Page 11 of 91
A26. Page 385 of 574 All acts and doings of the officials of the City that are in conformity with the
purposes and intent of this Ordinance and in furtherance of the issuance of the Bonds
be, and the same are hereby in all respects, approved and confirmed.
SECTION 9. The provisions of this Ordinance are hereby declared to be
separable and if any section, phrase or provision shall for any reason be declared by a
court of competent jurisdiction to be invalid or unenforceable, such declaration shall not
affect the validity or enforceability of the remainder of the sections, phrases and
provisions hereof.
SECTION 10. All ordinances, orders and resolutions and parts thereof in
conflict herewith are to the extent of such conflict hereby repealed.
SECTION 11. A copy of this Ordinance shall be filed in the office of the
City Clerk and shall be made available for public inspection in the manner required by
law.
SECTION 12. This Ordinance shall become effective upon its passage
and approval.
Alderman ______moved, seconded by Alderman ______that Ordinance No. _____ be adopted.
Introduced:______, 2019 Approved:
Adopted:______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
-10-
Page 12 of 91
A26. Page 386 of 574
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
Published in pamphlet form by authority of the City Council on November __, 2019.
ATTEST:
______City Clerk, City of Evanston Cook County, Illinois
-11-
Page 13 of 91
A26. Page 387 of 574
BOND AND LOAN AGREEMENT
among
CITY OF EVANSTON, ILLINOIS
CHIARAVALLE MONTESSORI SCHOOL,
and
FIFTH THIRD BANK, N.A.
Dated as of December 1, 2019
______
$3,925,000 aggregate principal amount City of Evanston, Illinois Revenue Bonds, Series 2019A (Chiaravalle Montessori School)
and
$3,735,000 maximum aggregate principal amount City of Evanston, Illinois Revenue Bonds, Series 2019B (Chiaravalle Montessori School)
______
Page 14 of 91
A26. Page 388 of 574 TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION ...... 2
Section 1.1 Definitions...... 2 Section 1.2 Rules of Construction ...... 8
ARTICLE II REPRESENTATIONS...... 8
Section 2.1 Representations of Issuer...... 8 Section 2.2 Representations of Borrower ...... 9 Section 2.3 Representations, Warranties and Acknowledgements of Purchaser...... 12
ARTICLE III ISSUANCE AND SALE OF BONDS; PROVISIONS AS TO FUNDS, PAYMENTS AND PROJECT; ISSUER COVENANTS ...... 15
Section 3.1 Agreement to Issue and Sell the Bonds; Application of Bond Proceeds...... 15 Section 3.2 Project Fund and Project Construction ...... 15 Section 3.3 Issuance of Bonds; Form; Dating; Delivery ...... 17 Section 3.4 Principal of and Interest on the Bonds...... 19 Section 3.5 Optional and Mandatory Tender...... 22 Section 3.6 Bond Advances...... 22 Section 3.7 Payments; Special, Limited Obligations...... 23 Section 3.8 Payment on Non-Business Days...... 23 Section 3.9 [Reserved]...... 23 Section 3.10 Redemption...... 23 Section 3.11 Bond Register ...... 24 Section 3.12 Mutilated, Lost, Stolen or Destroyed Bonds...... 24 Section 3.13 Cancellation of Bonds...... 24 Section 3.14 Temporary Bond...... 25 Section 3.15 Further Assurances ...... 25 Section 3.16 Tax Exemption...... 25 Section 3.17 Performance of Covenants; Issuer ...... 25 Section 3.18 Fees, Charges and Expenses of the Issuer ...... 25 Section 3.19 Provisions for Payment of Expenses ...... 25
ARTICLE IV REPAYMENT...... 26
Section 4.1 Loan Repayment...... 26 Section 4.2 Prepayments...... 26 Section 4.3 Assignment and Pledge; Obligations of Borrower Unconditional ...... 26 Section 4.4 Additional Expenses ...... 27
ARTICLE V BORROWER COVENANTS...... 27
Section 5.1 Financing Statements...... 27 Section 5.2 Borrower’s Obligation with Respect to Exclusion of Interest Paid on the Bonds ...... 27
Page 15 of 91
A26. Page 389 of 574 Section 5.3 Maintenance of Not For Profit Existence, Tax Status and Operation of Facilities...... 28 Section 5.4 Maintenance of Corporate Existence; Dissolution; Merger or Consolidation...... 28 Section 5.5 Operation, Sale, Lease or Sublease of the Project ...... 29 Section 5.6 No Warranty by the Issuer...... 29 Section 5.7 Compliance with Laws ...... 30 Section 5.8 Application of Certain Restricted Gifts ...... 30 Section 5.9 Issuer’s and Lender’s Right of Access to the Project ...... 30 Section 5.10 Maintenance and Repair; Insurance...... 30 Section 5.11 Covenants from Borrower to Lender...... 30 Section 5.12 Rebate Funds...... 30
ARTICLE VI INDEMNIFICATION ...... 31
Section 6.1 Indemnification...... 31 Section 6.2 Default by Issuer — Limited Liability ...... 34
ARTICLE VII [RESERVED]...... 34
ARTICLE VIII DEFAULTS AND REMEDIES...... 34
Section 8.1 Events of Default ...... 34 Section 8.2 Acceleration...... 35 Section 8.3 Other Remedies...... 35 Section 8.4 Waiver of Past Defaults ...... 35 Section 8.5 Lender May File Proofs of Claim...... 35 Section 8.6 Attorneys’ Fees and Expenses ...... 35 Section 8.7 No Remedy Exclusive ...... 35 Section 8.8 Enforcement of Unassigned Rights ...... 36
ARTICLE IX MISCELLANEOUS ...... 36
Section 9.1 Notices ...... 36 Section 9.2 Required Reporting to the Issuer ...... 37 Section 9.3 Binding Effect...... 37 Section 9.4 Severability ...... 37 Section 9.5 Amendments ...... 37 Section 9.6 Governing Law ...... 37 Section 9.7 Term of this Agreement...... 37 Section 9.8 Immunity of Officers, Aldermen, Employees, and Officials of Issuer and Borrower ...... 37 Section 9.9 Captions; References to Sections...... 38 Section 9.10 Complete Agreement ...... 38 Section 9.11 Terms of this Agreement; Discharge...... 38 Section 9.12 Counterparts...... 38
Exhibit A — The Project...... A-1 Exhibit B-1 — Form of Series 2019A Bonds ...... B-1-1 Exhibit B-2 — Form of Series 2019B Bonds...... B-2-1
Page 16 of 91
A26. Page 390 of 574 Exhibit C-1 — Form of Disbursement Requisition...... C-1-1 Exhibit C-2 — Form of Completion Certificate...... C-2-1 Exhibit D — Form of Disbursement Request for Costs of Issuance...... D-1 Exhibit E — Form of Bond Advance Requisition...... E-1 Exhibit F — Form of Investor Letter ...... F-1 Schedule I — Amortization Schedule...... I-1
Page 17 of 91
A26. Page 391 of 574 BOND AND LOAN AGREEMENT
BOND AND LOAN AGREEMENT dated as of December 1, 2019, among the CITY OF EVANSTON, COOK COUNTY, ILLINOIS, a municipal corporation and home rule unit of local government under the laws of the State (as defined below), as issuer (the “City” or the “Issuer”), CHIARAVALLE MONTESSORI SCHOOL, an Illinois not-for-profit corporation (the “Borrower”), and FIFTH THIRD BANK, N.A., a national banking association (the “Purchaser” and/or the “Lender”).
WHEREAS, Issuer is authorized under its home rule powers to issue its revenue bonds and to loan the proceeds thereof to the Borrower for the Financing Purposes (as hereinafter defined); and
WHEREAS, the Borrower is a not for profit corporation established for the purpose of providing educational services, is an organization described in Section 501(c)(3) of the Code (defined below) and is authorized to purchase and hold real and personal property and borrow money to finance or refinance the same; and
WHEREAS, the Borrower has requested that the Issuer issue its (i) Revenue Bonds, Series 2019 (Chiaravalle Montessori School) (the “Series 2019A Bonds”) and (ii) Revenue Bonds, Series 2019B (Chiaravalle Montessori School) (the “Series 2019B Bonds” and collectively with the Series 2019A Bonds, the “Bonds”); and
WHEREAS, the Borrower desires that the Series 2019A Bonds be issued in order to be used, together with other available funds to refund the City of Evanston Revenue Refunding Bonds, Series 2014A (Chiaravalle Montessori School) (the “Refunded Series 2014A Bonds”), the proceeds of which were used to finance certain prior bonds of the Issuer, which such prior bonds were used to finance the acquisition of land at 425 Dempster Street and an existing school facility then owned by the City and previously leased and operated by the Borrower (the “School Facility”) as well as renovations and improvements to the School Facility (collectively, the “Series 2019A Financing Purposes”); and
WHEREAS, the Borrower desires that the Series 2019B Bonds be issued in order to be used, together with other available funds to (i) refund the City of Evanston Revenue Bonds, Series 2014B (Chiaravalle Montessori School) (the “Refunded Series 2014B Bonds” and together with the Refunded Series 2014A Bonds, the “Refunded Bonds”), the proceeds of which were used to finance the costs of renovation, exterior and interior expansion, improvement and equipping of the School Facility, and (ii) finance or refinance, or reimburse itself for, the cost of further renovation, exterior and interior expansion, improvement and equipping of the School Facility (the “Project”) (collectively, the “Series 2019B Financing Purposes” and together with the Series 2019A Financing Purposes, the “Financing Purposes”); and
WHEREAS, the Issuer has determined that the public interest will be served by the Issuer’s issuance of the Bonds and the sale of the Bonds to the Purchaser in order to obtain funds to loan to Borrower pursuant to this Agreement for the Financing Purposes (the “Loan”); and
WHEREAS, Borrower shall make payments on the Loan directly to the Lender, as assignee of Issuer and agent for the holders of the Bonds, pursuant to the terms set forth in this Agreement; and
WHEREAS, the obligations of the Issuer under this Agreement are special, limited obligations of the Issuer, payable solely out of the revenues and income derived under this Agreement; and
1
Page 18 of 91
A26. Page 392 of 574 NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and in consideration of the premises contained in this Agreement, Lender, Issuer and Borrower agree as follows:
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions.
For all purposes of this Agreement, unless the context clearly requires otherwise, the following terms shall have the following meanings.
“Agreement” means this Bond and Loan Agreement, as amended or supplemented from time to time in accordance with its terms.
“Authorized Borrower Representative” means the Director of Finance and Operations of the Borrower or such other officer or officers of the Borrower identified in a written certificate signed by such officer delivered to the Issuer and the Lender.
“Bankruptcy Law” means Title 11 of the United States Code or any similar Federal or state law for the relief of debtors. “Custodian” means any assignee, custodian, liquidator, receiver, trustee or similar official under any Bankruptcy Law.
“Bond Advance” means an advance of Series 2019B Bond proceeds by the Purchaser of the 2019B Bonds to the Corporation in accordance with this Agreement.
“Bond Advance Requisition” means the applicable form of requisition for a Bond Advance attached to the Agreement as Exhibit E.
“Bond Amortization Amount” means for each Bond Year and for each series of Bonds, the amount set forth on Schedule I.
“Bond Counsel” means an attorney or firm of attorneys nationally recognized on the subject of municipal bonds and acceptable to Issuer and Lender.
“Bond Proceeds” means the total amount of money or other consideration to be paid or provided by Lender for application in accordance with this Agreement, including the Project Costs.
“Bond Ordinance” means the Issuer’s Ordinance No. 51-0-14 adopted on November 11, 2019.
“Bond Registrar” means the Lender.
“Bond Year” means the one-year period (or shorter period for the first or last year prior to the payment in full of the Bonds) ending on each May 1.
“Bonds” means the Series 2019A Bonds and the Series 2019B Bonds.
“Borrower” means Chiaravalle Montessori School, an Illinois not-for-profit corporation, and its successors and assigns, and any surviving, resulting or transferee entity as provided in Section 5.4 and/or 7.1 of this Agreement.
2
Page 19 of 91
A26. Page 393 of 574 “Borrower Agreements” means, collectively, this Agreement, the Mortgage, the Tax Agreements, the Environmental Indemnity Agreement and any other agreements, documents or certificates executed by Borrower in connection with the Loan contemplated by this Agreement.
“Business Day” means any day other than a Saturday, Sunday, federal holiday or other day on which the New York Stock Exchange is regularly closed, (i) with respect to all notices and determinations in connection with the LIBOR Rate, any day (other than a Saturday or Sunday) on which commercial banks are open in London, England, New York, New York, and Cincinnati, Ohio for dealings in deposits in the London Interbank Market; and (ii) in all other cases, any day on which commercial banks in Cincinnati, Ohio are required by law to be open for business.
“Closing Date” means the date of initial issuance and delivery of the Bonds to the Purchaser.
“Code” means the Internal Revenue Code of 1986, as amended. Each citation to a Section of the Code shall include the Treasury regulations applicable to such Section.
“Commitment Termination Date” means June 1, 2021.
“Continuing Covenants Agreement” means the Continuing Covenants Agreement dated December ___, 2019 between the Purchaser and the Borrower.
“Default Rate” shall have the meaning set forth in Section 3.3 hereof.
“Environmental Indemnity Agreement” means the Environmental Indemnity Agreement dated the Closing Date from the Borrower to the Lender.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute thereto.
“Event of Default” is defined in Section 8.1 of this Agreement.
“GAAP” means generally accepted accounting principles consistently applied.
“Governmental Authority” means any nation or government, any state, department, agency or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government, and any corporation or other entity owned or controlled (through stock or capital ownership or otherwise) by any of the foregoing.
“Initial Interest Period” is the first such period of time following the Closing Date for each Bond as follows: For the Series 2019A Bonds, the Initial Interest Period shall commence on the Closing Date and end on December 1, 2026. For the Series 2019B Bonds, the Initial Interest Period shall commence on the Closing Date and end on December 1, 2026.
“Interest Payment Date” means the first Business Day of each calendar month.
“Interest Period” means each period of time that interest on the Bonds is equal to a particular interest rate determined as provided in Section 3.4 of this Agreement. After the Initial Interest Period for each series of the Bonds, the subsequent Interest Periods shall be periods with a duration determined as provided in Section 3.4 hereof.
3
Page 20 of 91
A26. Page 394 of 574 “Issuer” means the City of Evanston, Cook County, Illinois.
“Lender” means (a) Fifth Third Bank, N.A., acting as lender under this Agreement and the purchaser of the Bonds on the Closing Date, (b) any surviving, resulting or transferee corporation of Fifth Third Bank, N.A. and (c) except where the context requires otherwise, any assignee(s) of Lender.
“LIBOR Rate” means, with respect to any Interest Period, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) (“ICE LIBOR”), as published by Bloomberg Financial Markets system (or another commercially available source providing quotations of ICE LIBOR as reasonably designated by the Administrative Agent from time to time, rounded upwards, if necessary, to the next 1/8 of 1% and adjusted for reserves if Lender is required to maintain reserves with respect to relevant advances) at approximately 11:00 a.m. (London time) two (2) Business Days prior to the commencement of such Interest Period, for United States Dollars (for delivery on the first day of such Interest Period). The LIBOR Rate shall never be less than zero percent (0.00%) at any time. [The Administrative Agent may unilaterally adjust the LIBOR Rate for any reserve requirement and any subsequent costs arising from a change in government regulation, or may substitute an alternative rate in the event that LIBOR becomes unavailable. The Administrative Agent shall provide notice to Borrower of adjustment to reflect the replacement index, adjusted margins and such other related amendments as may be appropriate, in the sole discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate and such amendment shall become effective on the fifth (5th) Business Day after the date that a draft of the notice of adjustment is provided to Borrower, unless Administrative Agent receives, on or before such fifth (5th) Business Day, a written notice from Borrower stating that the Borrower objects to such adjustment.]
“LIBOR Rate Margin” shall mean two hundred fifteen (215) basis points.
“London Banking Day” means any day other than a day on which banks in London, England are required or authorized to close.
“Loan” means the loan of the Bond Proceeds from Issuer to Borrower pursuant to this Agreement, said Loan being in principal amount equal to the then outstanding principal amount of the Bonds.
“Maximum Principal Amount,” with respect to the Series 2019B Bonds, means $3,735,000; provided that the actual Outstanding Principal Amount shall be determined by reference to Exhibit 1 to the Series 2019B Bond.
“Maximum Rate” means 9% per annum.
“Mortgage” means the Mortgage, Assignment of Leases and Rents and Security Agreement and Fixture Filing dated the Closing Date from the Borrower to the Lender, as amended from time to time.
“Mortgaged Property” means Property of the Borrower subject to the lien of the Mortgage.
“Opinion of Counsel” means a written opinion of counsel who is acceptable to the Lender. The counsel may be an employee of or counsel to the Issuer or the Borrower.
4
Page 21 of 91
A26. Page 395 of 574 The term “outstanding” when used with reference to the Bonds, or “Bond outstanding” means the originally authenticated Bonds which are delivered to the Purchaser under this Agreement, except the following:
(a) A canceled Bond or a Bond delivered to the Bond Registrar for cancellation.
(b) A Bond in lieu of which another Bond has been authenticated under Section 3.9 (relating to registration and exchange of a Bond) or 3.10 (relating to a partially redeemed Bond), Section 3.11 (relating to a transferred or exchanged Bond) or Section 3.12 (relating to a mutilated, lost, stolen or destroyed Bond).
(c) The Bonds to the extent provision for payment thereof has been made via creation of an irrevocable escrow pursuant to Section 9.10 hereof.
“Outstanding Principal Amount” means (a) with respect to the Series 2019A Bonds, the principal amount of the Outstanding Bonds of that series; and (b) with respect to the Series 2019B Bonds, the principal amount equal to the difference between (1) the sum of all Bond Advances and (2) the sum of all principal amounts of the Series 2019B Bond therefore paid or prepaid.
“Person” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or any agency or instrumentality thereof.
“Plans and Specifications” mean the plans and specifications for the Project delivered to Lender and identified as such, which have been approved by Lender, together with such changes and additions as may be approved by Lender in writing.
“Potential Default” means an event or condition which, but for the lapse of time or the giving of notice, or both, would constitute an Event of Default.
“Project Costs” means the acquisition and renovation costs of the Project, including those to be paid to any vendor or contractor thereof or reimbursed to Borrower for any portion thereof, and any administrative, engineering, legal, financial and other costs incurred by Lender, Issuer or Borrower in connection with the acquisition, construction and renovation of the Project or the financing of the Project and the issuance of the Bonds.
“Project” means the facilities described in Exhibit A hereto.
“Project Certificate” means the Project Certificate of the Borrower dated the Closing Date, as amended from time to time.
“Project Fund” means the Project Fund created pursuant to Section 3.2 hereof.
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, whether now owned or hereafter acquired.
“Purchase Contracts” means the Series 2019A Purchase Contract and the Series 2019B Purchase Contract.
“Purchaser” means the registered owner of the Bonds, initially Fifth Third Bank, N.A., and its successors and assigns.
5
Page 22 of 91
A26. Page 396 of 574 “Qualified Costs” means that portion of the costs of the Project which are used for purposes consistent with the applicable Tax Agreement and will not cause any of the representations or certifications contained in the applicable Tax Agreement to be untrue or result in a violation of any covenant in the applicable Tax Agreement.
“Qualified Investments” means any of the following obligations or securities, to the extent permitted by law and subject to the provisions of the applicable Tax Agreement: (i) direct obligations of, or obligations the timely payment of the principal of, and interest on, which are fully and unconditionally guaranteed by, the United States of America, which, at the time of investment, are not subject to prepayment or redemption prior to maturity, (ii) certificates of deposit issued by, or bankers’ acceptances of, or time deposits with, the Lender or any bank, trust company or national banking association incorporated, having a branch in or doing business under the laws of the United States of America or one of the states thereof having combined capital and surplus and retained earnings of at least $50,000,000, (iii) commercial paper of any holding company of a bank, trust company or national banking association described in (ii), (iv) commercial paper of companies incorporated or doing business under the laws of the United States of America or one of the states thereof and in each case having a rating assigned to such commercial paper by a Rating Agency (as defined below) equal to the highest rating assigned by such organization, (v) U.S. dollar-denominated certificates of deposits issued by, or time deposits with, the European subsidiaries of any bank, trust company or national banking association incorporated or doing business under the laws of the United States of America or one of the states thereof having combined capital and surplus and retained earnings of at least $50,000,000 and in each case having a rating assigned to its senior debt securities by a Rating Agency equal to an investment grade rating assigned by such organization, (vi) repurchase agreements with any bank, broker, dealer or other financial institution having combined capital and surplus and retained earnings of at least $50,000,000 secured by any of the obligations described in clauses (i) through (v) above, (vii) Tax-Exempt Obligations (as defined in the Tax Agreements) rated in one of the two highest full rating categories by any Rating Agency, (viii) money market funds registered as investment companies under the federal “Investment Company Act of 1940”, as amended, whose investment policies include seeking to maintain a constant share price and which invest exclusively in the investments or securities referred to in (i) through (v) above, or (ix) any other investment permitted by the Lender.
“Rating Agency” means Moody’s Investors Service, Fitch Inc. or Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc., and their successors and assigns.
“Rate Reset Date” means each of and the day immediately following the last day of each subsequent Interest Period.
“Rebate Funds” means the Series 2019A Rebate Fund and the Series 2019B Rebate Fund.
“Refunded Bonds” has the meaning set forth in the preambles hereto.
“Refunded Series 2014A Bonds” has the meaning set forth in the preambles hereto.
“Refunded Series 2014B Bonds” has the meaning set forth in the preambles hereto.
“Related Documents” means this Agreement, the Purchase Contracts, the Mortgage, the Environmental Indemnity Agreement and the Tax Agreements and any other agreement or instrument relating thereto.
“Restricted Project Gifts” has the meaning set forth in Section 5.9 hereof.
6
Page 23 of 91
A26. Page 397 of 574 “Series 2019A Bond” or “Series 2019A Bonds” means any bond or bonds of the Issuer’s Revenue Bonds, Series 2019A (Chiaravalle Montessori School), in the form attached hereto as Exhibit B- 1.
“Series 2019A Designated Percentage” means sixty nine percent (79%) during the Initial Interest Period and such other percentage as shall be determined by the Purchaser during any subsequent Interest Periods.
“Series 2019A Purchase Contract” means Bond Purchase Agreement dated November [15], 2019, among the Issuer, the Borrower and the Purchaser related to the Series 2019A Bonds.
“Series 2019A Rebate Fund” means the fund by that name created under the Series 2019A Tax Agreement.
“Series 2019A Tax Agreement” means the Tax Compliance Agreement of the Issuer and the Borrower dated the Closing Date, as amended from time to time, and related to the Series 2019A Bonds.
“Series 2019B Bond” or “Series 2019B Bonds” means any bond or bonds of the Issuer’s Revenue Bonds, Series 2019B (Chiaravalle Montessori School), in the form attached hereto as Exhibit B-2.
“Series 2019B Designated Percentage” means seventy nine percent (81%) during the Initial Interest Period and such other percentage as shall be determined by the Purchaser during any subsequent Interest Periods.
“Series 2019B Purchase Contract” means Bond Purchase Agreement dated December [6], 2019, among the Issuer, the Borrower and the Purchaser related to the Series 2019B Bonds.
“Series 2019B Rebate Fund” means the fund by that name created under the Series 2019B Tax Agreement.
“Series 2019B Tax Agreement” means the Tax Compliance Agreement of the Issuer and the Borrower dated the Closing Date, as amended from time to time, and related to the Series 2019B Bonds.
“State” means the State of Illinois.
“Tax Agreements” means the Series 2019A Tax Agreement and the Series 2019B Tax Agreement.
“Tax-Exempt Organization” means an entity organized under the laws of the United States of America or any state thereof which is an organization described in Section 501(c)(3) of the Code, which is exempt from federal income taxes under Section 501(a) of the Code, and which is not a “private foundation” within the meaning of Section 509(a) of the Code, or corresponding provisions of federal income tax laws from time to time in effect.
“Title Company” means Chicago Title Insurance Company.
“Title Policy” that certain ALTA Lender’s Policy insuring the first priority lien of the Mortgage on the Project and showing the Borrower as the fee simple title holder of the Project, in an
7
Page 24 of 91
A26. Page 398 of 574 amount at the Closing Date equal to $7,660,000, subject to the exceptions approved by Lender in its sole discretion with endorsements thereto reasonably requested by Lender or its counsel.
“Unassigned Rights” means the rights of the Issuer under Sections 2.1(e), 2.3(n), 3.17, 3.18, 4.4, 5.9, 6.2, 8.6, 9.2, 9.9 and 9.10 hereunder and its rights to receive notices hereunder and to consent to supplements and amendments hereto.
Section 1.2 Rules of Construction. i) The singular form of any word used herein, including the terms defined in Section 1.1 hereof, shall include the plural, and vice versa, unless the context otherwise requires. The use herein of a word of any gender shall include correlative words of all genders.
(a) Unless otherwise specified, references to Articles, Sections and other subdivisions of this Agreement are to the designated Articles, Sections and other subdivision of this Agreement as originally executed. The words “hereof,” “herein,” “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular Article, Section or subdivision hereof.
(b) The headings or titles of the several Articles and Sections, and to any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof.
ARTICLE II REPRESENTATIONS
Section 2.1 Representations of Issuer. The Issuer represents as follows:
(a) Issuer is a municipal corporation and home rule unit of local government under the Constitution and the laws of the State, is authorized to enter into the transactions contemplated by this Agreement and to carry out its obligations hereunder and has been duly authorized to execute and deliver this Agreement and the Bonds;
(b) It is the Issuer’s understanding, based upon certain representations of the Borrower, that the issuance and sale of the Bonds and the loaning of the proceeds of the Bonds to the Borrower (which proceeds, along with certain other moneys, will be applied for the benefit of the Borrower) is to provide a portion of the moneys required to pay the Financing Purposes;
(c) To provide funds to loan to the Borrower for the purposes described in (b) above, the Issuer has authorized its Bonds in the aggregate principal amount not to exceed $7,660,000 to be issued upon the terms set forth in this Agreement, under the provisions of which the Issuer’s interest in the payments of principal, premium, if any, interest and other revenues hereunder (other than the Unassigned Rights) are pledged and assigned to the Lender as security for the payment of the principal of, premium, if any, and interest on the Bonds. The Issuer covenants that it has not and will not pledge or assign its interest in this Agreement, or the revenues and receipts derived pursuant to this Agreement, excepting the Unassigned Rights, other than to the Lender under this Agreement to secure the Bonds.
(d) None of the Issuer’s execution of this Agreement, its consummation of the transaction contemplated on its part hereby, or the Issuer’s fulfillment or compliance with the terms and conditions hereof conflicts with or results in a breach of the terms, conditions and
8
Page 25 of 91
A26. Page 399 of 574 provisions of any material restriction, agreement or instrument to which the Issuer is a party, or by which it or any of its property is bound, or constitutes a default under any of the foregoing.
(e) The Issuer covenants that it will faithfully perform on its part at all times any and all covenants, undertakings, stipulations and provisions contained in this Agreement, in any and every Bond executed and delivered hereunder and in all of its proceedings pertaining thereto; provided, however, that except for the matters set forth in any documents hereof relating to payment of the Bonds, the Issuer shall not be obligated to take any action or execute any instrument pursuant to any provision hereof until it shall have been requested to do so by the Borrower or by Lender, or shall have received the instrument to be executed and at the option of the Issuer shall have received from the party requesting such action or execution assurance satisfactory to the Issuer that the Issuer shall be reimbursed for its reasonable expenses, including legal counsel fees, incurred or to be incurred in connection with taking such action or executing such instrument. The Issuer covenants that it is duly authorized under the Constitution and the laws of the State, including particularly the Act and the Bond Ordinance to issue the Bonds authorized hereby and to execute this Agreement, to grant the security interest herein provided, to assign and pledge this Agreement (except as otherwise provided herein) and to assign and pledge the amounts hereby assigned and pledged in the manner and to the extent herein set forth, that all action on its part for the issuance of the Bonds and the execution and delivery of this Agreement has been duly and effectively taken, and that the Bonds in the hands of the owners thereof are and will be valid and enforceable obligations of the Issuer according to the terms thereof and hereof. Anything contained in this Agreement to the contrary notwithstanding, it is hereby understood that none of the covenants of the Issuer contained in this Agreement are intended to create a general or primary obligation of the Issuer.
Section 2.2 Representations of Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a not-for-profit corporation duly incorporated under the laws of the State, is in good standing and duly authorized to conduct its business in the State, is duly authorized and has full power under all applicable laws and its articles of incorporation and By-laws to execute and deliver Borrower Agreements.
(b) The execution and delivery of the Borrower Agreements on the Borrower’s part have been duly authorized by all necessary corporate action, and neither the Borrower’s execution and delivery of the Borrower Agreements, the Borrower’s consummation of the transactions contemplated on its part thereby, nor the Borrower’s fulfillment of or compliance with the terms and conditions thereof, conflicts with or results in a material breach of the Articles of Incorporation or By-Laws of the Borrower or any material agreement or instrument to which the Borrower is now a party or by which it is bound (except for any such breaches for which the Borrower has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both) under any of the foregoing.
(c) The Project is comprised of the acquisition, renovation, furnishing and equipping of facilities for use by Borrower as a school and the Borrower presently intends to operate the Project for such purpose from the completion of the Project to the expiration or earlier termination of this Agreement. No portion of the Project includes any property used or to be used for sectarian instruction or study or as a place for devotional activities or religious worship or any property which is used or to be used primarily in connection with any part of the program of a school or department of divinity for any religious denomination.
9
Page 26 of 91
A26. Page 400 of 574 (d) No litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened against the Borrower seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of the Borrower Agreements or which would in any manner challenge or adversely affect the corporate existence or powers of the Borrower to enter into and carry out the transactions described in or contemplated by or the execution, delivery, validity or performance by the Borrower of the Borrower Agreements. In addition, no litigation, proceedings or investigations are pending or, to the knowledge of the Borrower, threatened in writing against the Borrower, except litigation, proceedings or investigations involving claims for which the probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of management of the Borrower (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Borrower.
(e) The Borrower is a Tax-Exempt Organization. The Borrower has received a determination letter from the Internal Revenue Service to the foregoing effect, which letter is in full force and effect. The Borrower has not declared and has not been determined to have any “unrelated business taxable income” as defined in Section 512 of the Code, in an amount which could have a material adverse effect on the Borrower’s status as a Tax-Exempt Organization, or which, if such income were subject to federal income taxation, would have a material adverse effect on the condition, financial or otherwise of the Borrower.
(f) The audited statement of financial position of the Borrower as at May 31, 2019 and statements of activities and cash flows for the fiscal years then ended and statements of activities and cash flows of the Borrower for the period then ended, and the unaudited statement of financial position of the Borrower as most recently furnished to the Lender, fairly present the financial condition of the Borrower as at such dates and the results of its operations and cash flows for the periods then ended in conformity with GAAP. The Borrower has no contingent liabilities which are material to it other than as indicated on such financial statements. Since the date of such audited financial statements, there have been no material adverse changes in the condition (financial or otherwise) of the Borrower.
(g) The information used in the preparation of the financial statements referred to in paragraph (f) above, this Agreement, the Purchase Contracts, the Tax Agreements and any other written statement furnished by the Borrower to the Issuer do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading. There is no fact which the Borrower has not disclosed to the Issuer in writing which materially adversely affects or, so far as the Borrower can now foresee, will materially adversely affect the financial condition of the Borrower, the tax-exempt status of the Borrower, the ability of the Borrower to own and operate the Project or the Borrower’s ability to make payments under this Agreement when and as the same become due and payable.
(h) Compliance by the Borrower with the provisions of the Borrower Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as “ERISA”), or Section 4975 of the Code. No “employee pension benefit plans”, that are subject to Title IV of ERISA (herein sometimes referred to as “Plans”), maintained by the Borrower, nor any trust created thereunder, have incurred any “accumulated funding deficiency” as defined in Section 302 of ERISA, to the extent applicable and the present value of all benefits vested under all Plans, if any, did not exceed, as of the last annual valuation date, the value of the assets of the Plans allocable to such vested benefits.
10
Page 27 of 91
A26. Page 401 of 574 (i) The Borrower has any and all necessary licenses and permits to occupy and operate its existing facilities and has obtained, will obtain or will cause to be obtained all necessary licenses and permits to acquire, occupy and operate the Project, as they become required.
(j) The representations and certifications contained in the Tax Agreements executed by the Borrower on the Closing Date are true and correct, and are incorporated by reference herein.
(k) No amounts shall be withdrawn from the Bond Proceeds Account of the Project Fund except to pay, or to reimburse the Borrower for, Qualified Costs. Borrower reasonably expects that it will not take any deliberate action within the meaning of Treas. Reg. §1.141-2(d).
(l) The Borrower has filed or caused to be filed all tax returns required by law to be filed and has paid or caused to be paid all taxes, assessments and other governmental charges levied upon or in respect of any of its properties, assets or franchises, other than taxes the validity or amount of which are being contested in good faith by the Borrower by appropriate proceedings and for which the Borrower shall have set aside on its books adequate reserves in accordance with GAAP. The charges, accruals and reserves on the books of the Borrower in respect of taxes for all fiscal periods are adequate, and there is no unpaid assessment for additional taxes for any fiscal period or any basis therefor.
(m) No authorization, consent, license, exemption or filing or registration with any court or Governmental Authority is or will be necessary to the valid execution, delivery or performance by the Borrower of any of the Related Documents to which it is a party.
(n) The Borrower has not received notice to the effect that its operations are not in compliance with any of the requirements of applicable federal, state or local environmental, health and safety statutes and regulations or are the subject of any governmental investigation evaluating whether any remedial action is needed to respond to a release of any toxic or hazardous waste or substance into the environment, which non-compliance or remedial action could have a material adverse effect on the financial condition, Property, business or operations of the Borrower.
(o) The Borrower is not in default under the terms of any covenant, indenture or agreement of or affecting the Borrower or any of its Property, which default would have a material adverse effect on the financial condition, Property, business or operations of the Borrower.
(p) Neither the business nor the Property of the Borrower is currently affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance), materially and adversely affecting the business, Property or operations of the Borrower.
(q) No Potential Default or Event of Default has occurred and is continuing.
(r) The Borrower hereby makes to the Purchaser the same representations and warranties as are set forth by it in each Related Document to which it is a party, which representations and warranties, as well as the related defined terms contained therein, are hereby incorporated herein by reference for the benefit of the Purchaser with the same effect as if each
11
Page 28 of 91
A26. Page 402 of 574 and every such representation and warranty and defined term were set forth herein in its entirety and were made as of the date hereof. No amendment to such representations and warranties or defined terms made pursuant to any Related Document shall be effective to amend such representations and warranties and defined terms as incorporated by reference herein without the prior written consent of the Lender.
Section 2.3 Representations, Warranties and Acknowledgements of Purchaser. The Purchaser represents, warrants and acknowledges as follows:
(a) In purchasing the Bonds, it is not relying on any representations of the Issuer with respect to the financial quality of the Bonds. The Purchaser is relying solely on statements and representations of the Borrower and on its own knowledge and investigation of the facts and circumstances relating to the purchase of the Bonds and hereby waives any claims that it may have against the Issuer or the members of the governing body, the officers, officials, employees and agents of the Issuer with respect to the financial quality of the Bonds arising out of any action such governing body has taken or should have taken in the authorization, issuance or sale of the Bonds or with respect to any statement or representation made by the Issuer in connection with the sale of the Bonds. Insofar as the financial quality of the Bonds is dependent solely on the ability of the Borrower to make all payments as and when due under this Agreement, the Purchaser acknowledges and agrees that it has evaluated the creditworthiness of the Borrower and has determined that, in the absence of the Bonds, the Purchaser would nevertheless be willing to finance and refinance the Project through a commercial loan to the Borrower on substantially the same terms and conditions (other than the interest rates on the Bonds) as set forth in this Agreement.
SPECIFICALLY, AND WITHOUT IN ANY MANNER LIMITING THE FOREGOING, THE PURCHASER UNDERSTANDS AND ACKNOWLEDGES THAT, AMONG OTHER RISKS, THE BONDS ARE PAYABLE SOLELY FROM REVENUES DERIVED FROM THE SCHOOL FACILITY AND THAT THE BONDS ARE NOT ENTITLED TO THE BENEFIT OF ANY CREDIT FACILITY.
(b) It intends to treat the purchase of the Bonds as a commercial loan to the Borrower. The Purchaser also represents and warrants that its business is that of a commercial bank, and as such it is an “accredited investor” within the meaning ascribed to that term under Regulation D, Section 501 through 506 of the Securities Act of 1933, as amended. In connection with its business, the Purchaser holds an extensive portfolio of investments and commercial loans, as well as other types of loans. The Purchaser has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of making the loan and purchasing the Bonds.
(c) The Purchaser acknowledges that it is familiar with the conditions, financial and otherwise, of the Borrower. To the extent deemed appropriate in making its investment decision, the Purchaser has discussed the Borrower’s financial condition and the Borrower’s current and proposed business activities with the Borrower. The Purchaser has sufficient knowledge and experience in financial and business matters, including the purchase and ownership of tax-exempt obligations, to be capable of evaluating the merits and risks of the investment in the Bonds and it is able to bear the economic risk of the investment. The Bonds are a security of the kind the Purchaser wishes to purchase and hold for investment, and the nature and amount of the Bonds is consistent with the Purchaser’s investment program. The Purchaser has received from the Borrower all information and materials which it regards as necessary to evaluate all merits and risks of said investment, including copies or forms of the Agreement, the Mortgage and certain
12
Page 29 of 91
A26. Page 403 of 574 other documents relating to the Bonds and the Project, all of which documents the Purchaser has reviewed. The Purchaser has had the opportunity to ask questions of and has received answers from the Borrower. Specifically, but without limitation, the Purchaser has reviewed all information about the Project to its satisfaction necessary to making its investment decision, as well as information about the investment risks relating to the Bonds, and the Purchaser understands that the Bonds involve a high degree of risk.
(d) The Issuer and the Borrower have made available during the course of the transaction and prior to the purchase of the Bonds, to the Purchaser, the opportunity to ask questions and receive answers from such parties concerning the terms and conditions of the Bonds offering and to obtain any additional information relative to the financial data and business of such parties, to the extent that such parties possess such information or can acquire it without unreasonable effort or expense.
(e) The Purchaser understands that the Bonds will carry no rating from any rating service and have not been registered under the Securities Act of 1933, as amended, and that such registration is not legally required. The Purchaser represents that it is purchasing the Bonds for investment for its own account and not with the present view of transferring the Bonds or any portion of thereof, directly or indirectly, in such a manner that would require registration under the Securities Act of 1933, as amended. The Purchaser agrees not to sell or transfer the Bonds or to offer participations in the Bonds, except in compliance with any applicable federal or state securities laws.
(f) The Purchaser understands that it may need to bear the risks of the investment in the Bonds for an indefinite time, since any sale prior to maturity may not be possible due to the unmarketability of the Bonds.
(g) The Purchaser has not received from the Issuer any formal or informal official statement, prospectus, offering, circular, private placement memorandum or other disclosure document relating to the Bonds and has concluded that the receipt of one prior to the purchase of the Bonds is not required. It is acknowledged that no information has been provided by the Issuer, or its officials, employees, aldermen, agents or its counsel, and that any information furnished by any other party to the transaction does not purport to fully disclose all information pertinent to the Bonds.
(h) The Purchaser is not now and has never been controlled by, or under common control with, the Borrower. Except as disclosed to the Issuer in writing, the Borrower has never been and is not now controlled by the Purchaser. The Purchaser hereby agrees to deliver to the Issuer a copy of any agreement between the Purchaser and the Borrower or any affiliate of the Borrower relating to the Bonds.
(i) The Purchaser has authority to purchase the Bonds and to execute this letter and any other instruments and documents required to be executed by the Purchaser in connection with the purchase of the Bonds.
(j) In entering into this transaction the Purchaser has not relied upon any representations or opinions made by the Issuer or its counsel relating to the legal or financial consequences or other aspects of the transactions, nor has it looked to, nor expected, the Issuer to undertake or require any credit investigation or due diligence reviews relating to the Borrower, its financial condition or business operations, the Project and the School Facility (including the refinancing, operation or management thereof), or any other matter pertaining to the merits or
13
Page 30 of 91
A26. Page 404 of 574 risks of the transaction, or the adequacy of any collateral pledged to secure repayment of the Bonds.
(k) The Purchaser understands the following: The Bonds shall not constitute an indebtedness or obligation of the Issuer, the State or any political subdivision thereof or a loan of credit of any of them within the meaning of any constitutional limitation or statutory provision, or a charge against the general credit or taxing powers, if any, of the Issuer, the State, or any other political subdivision thereof. The Bonds are special, limited obligations of the Issuer, payable solely out of the revenues and receipts of the Issuer derived pursuant to the Agreement. No owner of the Bonds shall have the right to compel any exercise of the taxing power of the Issuer, the State or any other political subdivision thereof to pay the principal of the Bonds or the interest or premium, if any, thereon.
(l) The Purchaser has been informed that the Bonds have not been and will not be registered or otherwise qualified for sale under the “Blue Sky” laws and regulations of any jurisdiction, (i) will not be listed on any stock or other securities exchange, (ii) will carry no rating from any rating service, and (iii) will not be readily marketable.
(m) The undersigned is purchasing the Bonds for the undersigned’s own account or for the account of an affiliate or a related entity 100% of whose common stock is directly or indirectly owned by the undersigned or any of its affiliates (together, a “Related Entity”) not with a view to resale or other distribution thereof except for a transfer to a Related Entity or a participant or otherwise in accordance with this Agreement and applicable law. The Purchaser acknowledges that no market may exist for the resale of the Bonds and that it is able to bear the economic risk of said investment for an indefinite period of time.
(n) The Bonds may be transferred only as a whole, in a single transaction whereby all right, title and interest in and to the Bonds is transferred to a single transferee and only with the prior written consent of the Issuer. The Issuer agrees not to withhold its consent unreasonably, when provided with reasonable evidence of the following:
(i) that the transferee has been provided copies of the Related Documents, all as currently then in effect;
(ii) that the Purchaser’s rights under the Related Documents have been assigned to the transferee as security for the Bonds;
(iii) that the transferee has certified as to the representations contained in this Section 2.3 to the Issuer;
(iv) that the transferee has assumed and undertaken all obligations of the Purchaser under this Agreement, including the obligation to make monies on deposit in the Project Fund available as provided herein;
(v) that the transferee has provided an investment letter to the Issuer a copy of which is attached hereto as Exhibit F hereto; and
(vi) that the transferee has been provided copies of any opinions of counsel previously delivered to the Purchaser.
14
Page 31 of 91
A26. Page 405 of 574 (o) The Purchaser would have purchased the Bonds regardless of whether or not any other bond of any other Governmental Authority were purchased or issued to finance or refinance the Project. The interest rates for the Bonds was determined independently from the interest rate for any other bond of any other Governmental Authority issued to finance or refinance the Project.
(p) The Purchaser, in its role as the Lender, hereby relinquishes all rights of set off against any and all deposits (general or special, time or demand, provisional or final, in whatever currently) at any time held.
ARTICLE III ISSUANCE AND SALE OF BONDS; PROVISIONS AS TO FUNDS, PAYMENTS AND PROJECT; ISSUER COVENANTS
Section 3.1 Agreement to Issue and Sell the Bonds; Application of Bond Proceeds. In order to provide funds to finance the Financing Purposes, the Issuer agrees that it will issue, sell and cause to be delivered the Bonds to the Purchaser. The Purchaser agrees that it will purchase the Bonds from the Issuer at a purchase price of 100% of the principal amount thereof payable as provided below. The Issuer will thereupon cause the proceeds received from the sale of the Bonds to be applied as follows and as provided in Sections 3.2 and 3.6 hereof:
(a) $______from the proceeds of Series 2019A Bonds shall be paid to Fifth Third Bank, N.A. to pay in full the Refunded Series 2014A Bonds.
(b) $______from the proceeds of Series 2019B Bonds shall be paid to Fifth Third Bank, N.A. to pay in full the Refunded Series 2014B Bonds.
(c) $______shall be paid to the Purchaser from the proceeds of the Series 2019B Bonds pursuant to the initial Bond Advance and deposited in the Bond Proceeds Account of the Project Fund and used for the purposes described in Section 3.2 hereof.
(d) No proceeds of Series 2019A Bonds and no proceeds of the Series 2019B Bonds shall be paid to the Borrower to be used for expenses related to issuing the Bonds and refunding the Refunded Bonds.
Section 3.2 Project Fund and Project Construction.
(a) There is created by the Issuer and ordered to be maintained (except when invested as provided hereinafter) in the custody of the Lender a fund designated “City of Evanston, Illinois – Chiaravalle Montessori School Project Fund” and which will be comprised of two separate deposit accounts designated: (i) the “Bond Proceeds Account” and (ii) the “Non- Bond Proceeds Account.” The proceeds of the sale of each Bond Advance other than the proceeds paid to the Borrower pursuant to Section 3.1(b) hereof shall be deposited in the Bond Proceeds Account of the Project Fund pursuant to this Section 3.2 hereof and disbursed pursuant to the provisions of Section 3.2(b) hereof. Moneys provided from time to time from the Borrower shall be deposited into the Non-Bond Proceeds Account of the Project Fund and disbursed pursuant to the provisions of Section 3.2(b) and (c) hereof.
Any funds on deposit in the Non-Bond Proceeds Account are not pledged to repayment of the Bonds or to the Lender.
15
Page 32 of 91
A26. Page 406 of 574 (b) The Borrower shall cause the Project to be acquired, constructed, renovated and equipped in accordance with (i) this Section, and (ii) the Plans and Specifications.
(c) Moneys deposited with the Lender in the Bond Proceeds Account of the Project Fund pursuant to Section 3.6 of this Agreement or the Non-Bond Proceeds Account of the Project Fund by the Borrower shall be held in the applicable Account of the Project Fund and disbursed to the Borrower to pay costs of the Project (or to reimburse the Borrower for payment of such costs) only pursuant to a Disbursement Request signed by an Authorized Borrower Representative and delivered to the Purchaser in the form of Exhibit C-1 hereto, which Disbursement Request must be approved by the Purchaser. Other than the initial disbursements to reimburse the Borrower for costs paid prior to the Closing Date, disbursements made in connection with costs of construction of the Project shall be made to the Title Company for disbursement by the Title Company to the general contractor or subcontractors pursuant to the procedures established in the Escrow Agreement. Disbursements made in connection with the acquisition of equipment shall be made upon receipt of invoices by the Lender.
(d) The completion of the Project shall be evidenced to the Lender by a certificate (the “Completion Certificate”) substantially in the form of Exhibit C-2 hereto, signed by an Authorized Borrower Representative. It shall be the duty of the Borrower to cause the Completion Certificate to be furnished to the Lender within 60 days after either the Project shall have been completed or the Borrower shall have determined that the Project will not be completed. Any moneys held in the Non-Bond Proceeds Account of the Project Fund upon the filing of the Completion Certificate shall be paid promptly to the Borrower. Borrower may pay for equipment purchases of the Project with its own funds which are not required to be deposited in the Non-Bond Proceeds Account prior to expenditure.
Any moneys held in the Bond Proceeds Account of the Project Fund upon the filing of the Completion Certificate shall be at the direction of the Borrower be used for one or more of the following purposes:
(i) for the payment, in accordance with the provisions of this Agreement, of any Qualified Cost with respect to the Project not theretofore paid; or
(ii) for the payment of all or part of the redemption price of the Bonds at the earliest redemption date or dates on which the Bonds may be redeemed without the payment of a premium or, at the option of the Borrower, at an earlier redemption date or dates.
The Borrower and the Issuer shall receive an opinion of Bond Counsel to the effect that any such payment is in accordance with the provisions of this Agreement and will not adversely affect the exclusions from gross income of interest on the Bonds.
(e) The Borrower covenants and agrees that it will cause all of the moneys in the Bond Proceeds Account of the Project Fund (including any earnings on investment of such moneys) to be disbursed for Qualified Costs and none of the moneys in the Bond Proceeds Account of the Project Fund will be disbursed for costs of issuance of the Bonds or for costs of refunding of the Refunded Bonds.
(f) In the event the money in the Project Fund available for payment of the costs of the Project shall not be sufficient to make such payment in full, the Borrower agrees to pay directly or to deposit moneys in the Non-Bond Proceeds Account of the Project Fund for the
16
Page 33 of 91
A26. Page 407 of 574 payment of, such costs of completing the Project as may be in excess of the moneys available therefor in the Project Fund to the extent required in the Continuing Covenants Agreement. THE ISSUER DOES NOT MAKE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT THE MONEYS WHICH WILL BE DEPOSITED INTO THE PROJECT FUND, AND WHICH UNDER THE PROVISIONS OF THIS AGREEMENT WILL BE AVAILABLE FOR PAYMENT OF THE COSTS OF THE PROJECT, WILL BE SUFFICIENT TO PAY ALL OF THE COSTS WHICH WILL BE INCURRED IN CONNECTION THEREWITH. The Borrower agrees that if, after exhaustion of the moneys in the Project Fund, the Borrower should pay, or deposit moneys in the Non-Bond Proceeds Account of the Project Fund for payment of, any portion of the costs of the Project pursuant to the provisions of this Section, it shall not be entitled to any reimbursement therefor from the Issuer, Lender or Bond Registrar, nor shall it be entitled to any diminution of the amounts payable under Section 4.1 hereof.
(g) All moneys in the Project Fund shall be invested or reinvested by the Lender, at the direction of the Borrower, as provided in the Tax Agreements and to the extent permitted by law, in Qualified Investments. Initially, the Project Fund shall be invested in one or more certificates of deposit issued by the Lender or other deposit accounts held by the Lender meeting the requirements of the Tax Agreements. The Lender may make any and all investments permitted by this Section 3.2 through its own investment department or that of its affiliates. The Issuer and the Borrower acknowledge that to the extent that regulations of the Comptroller of the Currency or other applicable regulatory agency grant the Issuer to receive brokerage confirmations of security transactions, the Issuer waives receipt of such confirmations. The Lender shall furnish to the Borrower periodic statements which include detail of all investment transactions of moneys held in the Project Fund made by the Lender. Any such investment shall mature on or prior to the date or dates on which such funds are anticipated to be needed under the Agreement.
Section 3.3 Issuance of Bonds; Form; Dating; Delivery. No Bonds may be issued under this Agreement except in accordance with the provisions of this Article. The total principal amount of Bonds, the number of Bonds and series of Bonds that may be issued under this Agreement is limited as provided in this Section.
(a) Authorization and Amount of the Series 2019A Bonds. There shall be issued under and secured by this Agreement an issue of Bonds designated “City of Evanston, Illinois Revenue Bonds (Chiaravalle Montessori School), Series 2019A (the “Series 2019A Bonds”), in the original aggregate principal amount of $3,925,000.
(b) Date and Maturity of the Series 2019A Bonds. The Series 2019A Bonds shall be dated the date of their original issuance and delivery, and shall mature on April 1, 2040 (the “Series 2019A Maturity Date”), subject to prior redemption as provided herein.
(c) Authorization Amount of the Series 2019B Bonds. There shall be issued under and secured by this Agreement an issue of Bonds designated “City of Evanston, Illinois Revenue Bonds (Chiaravalle Montessori School), Series 2019B (the “Series 2019B Bonds”), in the maximum original aggregate principal amount of $3,735,000.
(d) Date and Maturity of the Series 2019B Bonds. The Series 2019B Bonds shall be dated the date of their authentication and delivery, and shall mature on November 1, 2045 (the “Series 2019B Maturity Date”), subject to prior redemption as provided herein.
17
Page 34 of 91
A26. Page 408 of 574 (e) General.
The Bonds shall be substantially in the form of Exhibit B-1 with respect to Series 2019A and Exhibit B-2 with respect to Series 2019B to this Agreement. Each series of Bonds shall be issued as a single fully registered Bond in the denomination of the then outstanding principal amount of such series of the Bonds. The Bonds may have notations, legends or endorsements required by law or usage. Each series of the Bonds will be numbered as determined by the Bond Registrar.
The Bonds shall be executed on behalf of the Issuer with the manual or facsimile signature of its Mayor and shall have impressed or imprinted thereon the official seal of the Issuer or a facsimile thereof and shall be attested by the manual or facsimile signature of its City Clerk. All authorized facsimile signatures shall have the same force and effect as if manually signed. In case any official whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be such official before the delivery of such Bonds, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes, the same as if such official had remained in office until delivery. The Bonds may be signed on behalf of the Issuer by such persons who, at the time of the execution of such Bonds, are duly authorized or hold the appropriate office of the Issuer, although on the date of the Bonds such persons were not so authorized or did not hold such offices.
The Bonds shall be executed in the manner set forth herein and delivered to the Bond Registrar for authentication, but prior to or simultaneously with the authentication and delivery of the Bonds by the Bond Registrar the following documents shall be filed with the Bond Registrar:
(i) A copy, certified by the City Clerk or other authorized officer of the Issuer, of the resolution adopted by the Issuer authorizing the issuance of the Bonds and the execution of the Bonds and this Agreement, the Tax Agreements and the other financing documents to which it is a party.
(ii) A copy, certified by the secretary or an assistant secretary or other authorized officer of the Corporation, of the resolutions adopted by the Corporation authorizing the execution and delivery of the Bond and this Agreement, the Tax Compliance Agreement, the Continuing Covenants Agreement, and the other financing documents to which it is a party.
(iii) Executed Bonds and copies or executed counterparts of this Agreement, the Tax Compliance Agreement, the Continuing Covenants Agreement, each of the other financing documents.
(iv) A request and authorization to the Bond Registrar on behalf of the Issuer to authenticate the Bonds and deliver the Bonds to or upon the order of the purchaser therein identified upon payment of the purchase price thereof.
(v) Opinions of Bond Counsel, dated the date of original issuance of the Bonds, in substantially the forms required by the Purchaser and the Issuer.
(vi) Such other opinions, certificates, statements, receipts and documents required by the financing documents or as the Purchaser shall reasonably require for the delivery of the Bonds.
When the documents specified above have been filed with the Purchaser and the Issuer, and when the Bonds shall have been executed and authenticated as required by this Bond and Loan
18
Page 35 of 91
A26. Page 409 of 574 Agreement Indenture, the Bond Registrar shall deliver the Bonds to the initial Purchaser, but only upon payment of the purchase price of the Bonds.
Section 3.4 Principal of and Interest on the Bonds.
Each series of the Bonds shall bear interest at the rate per annum set forth in the form of related Bond attached hereto as Exhibit B-1 or Exhibit B-2. Interest shall be payable monthly on the Interest Payment Date commencing on ______1, 20___. The Series 2019A Bonds shall bear interest at a Fixed Rate of ___% for the Initial Interest Period ending December 1, 2026; and Series 2019B Bonds shall bear interest at a Fixed Rate of ___% for the Initial Interest Period ending May 1, 2026.
Each series of the Bonds shall bear interest during each Interest Period following the Initial Interest Period at either a Fixed Rate (defined below) or a Variable Rate (defined below) determined as follows. At least thirty (30) days before the Rate Reset Date for an Interest Period, provided the Lender is not then exercising its right to optionally tender such series of the Bonds on such Rate Reset Date pursuant to Section 4(a) of the related Bond, the Lender shall determine a matrix of Fixed Rates and Variable Rates for the next Interest Periods (or to final maturity of the Bond) and shall notify the Borrower of such determination by thirty (30) days before the expiration of the existing Interest Period. Such matrix of Fixed Rates and Variable Rates shall be determined by the Lender in a manner consistent with the then prevailing current interest rates for borrowers with similar creditworthiness as the Borrower. Each “Fixed Rate” so determined by the Lender shall be a fixed rate of interest effective for the duration of such Interest Period and equal to the lowest fixed rate of interest that would permit the Bond to be sold at par, plus accrued interest, on such date, in no event to exceed the Maximum Rate. Each “Variable Rate” so determined by the Lender shall be a variable rate of interest effective for the duration of such Interest Period equal to that percentage (the “Designated Percentage”) of the Designated Rate (defined below) that shall result in the lowest rate of interest that would permit the Bond to be sold at par, plus accrued interest, on such date, in no event to exceed the Maximum Rate and provided however that such Designated Percentage shall not be lower 65% or higher than 135%. “Designated Rate” means the sum of the LIBOR Rate plus the LIBOR Rate Margin then in effect. During any Interest Period that the Bond bears interest at a Variable Rate, the actual Bond interest rate will change at the end of each Interest Period, but the Designated Percentage will remain the same for the entire Interest Period, except only as provided herein. The Borrower shall notify the Lender of such determination by such 15th day. Notwithstanding the foregoing, in no event shall the Bond commence bearing interest at the new interest rate for the new Interest Period unless and until an opinion of Bond Counsel has been delivered to the Issuer, the Lender and the Borrower to the effect that the change to the new interest rate for the new Interest Period shall not adversely affect the exclusion of interest on the Bonds from gross income for Federal income tax purposes.
[The Administrative Agent may unilaterally adjust the LIBOR Rate for any reserve requirement and any subsequent costs arising from a change in government regulation, or may substitute an alternative rate in the event that LIBOR becomes unavailable. The Administrative Agent shall provide notice to Borrower of adjustment to reflect the replacement index, adjusted margins and such other related amendments as may be appropriate, in the sole discretion of the Administrative Agent, for the implementation and administration of the replacement index-based rate and such amendment shall become effective on the fifth (5th) Business Day after the date that a draft of the notice of adjustment is provided to Borrower, unless Administrative Agent receives, on or before such fifth (5th) Business Day, a written notice from Borrower stating that the Borrower objects to such adjustment.]
If at any time or times during any Interest Period commencing on or after May 1, 2026 during which the Bond bears interest at a Variable Rate, by reason of a change in applicable law, the
19
Page 36 of 91
A26. Page 410 of 574 maximum marginal tax rate at which the Lender could be taxed for federal income tax purposes pursuant to the applicable provisions of the Code, or any future United States internal revenue or similar law applicable to the Lender (hereinafter referred to as the “Tax Rate”) should change, the Designated Percentage used to determine the Variable Rate shall be adjusted by multiplying the current Designated Percentage by the difference between 100% and the new Tax Rate, and dividing the result by the difference between 100% and the old Tax Rate; provided however that such Designated Percentage shall not be lower than 65% nor higher than 135%, provided that in such event the Borrower shall have the right to prepay the Loan in whole or in part without penalty or premium.
In the event that the Lender exercises its option to cause the Bond to be purchased on a Rate Reset Date or the Borrower exercises its right to cause a mandatory tender of the Bond on a Rate Reset Date and unless the Bond is cancelled as of such Rate Reset Date, the Bond shall bear interest during the Interest Period commencing on the Rate Reset Date at either the Variable Rate or the Fixed Rate as shall be selected by the Borrower, which Variable Rate or Fixed Rate shall be determined according to the formula set forth in the second preceding paragraph by whichever entity is becoming the new Purchaser of the Bond on the Rate Reset Date. Interest on the Bonds shall be computed on the basis of a 360-day year, for actual days elapsed. The Bonds shall bear interest on any overdue principal, premium, and, to the extent permitted by law, on overdue interest, at a rate equal to the sum of the interest rate then in effect as provided above plus 5% per annum (the “Default Rate”). In addition, during the continuation of an Event of Default, the Lender may, at its option, by notice to the Borrower, declare that the Bonds shall bear interest at the rate equal to the Default Rate.
Principal of the Series 2019A Bonds shall be payable in annual installments commencing April 1, 2020 through the final maturity of the Series 2019A Bonds on April 1, 2040. Principal of the Series 2019B Bonds shall be payable in annual installments commencing on November 1, 2020 through the final maturity of the Series 2019B Bonds on November 1, 2045. The entire unpaid principal amount of each series of the Bonds shall be payable in full on the final maturity date applicable to such series of the Bonds.
A complete schedule of principal of and interest on each series of the Bonds is attached hereto as Schedule I.
During each Interest Period following the Initial Interest Period, interest on the Bonds shall continue to be payable monthly on the first Business Day of each month and the principal of the Bonds shall continue to be payable annually on the 1st of April for the Series 2019A Bonds and the 1st of November for the Series 2019B Bonds and shall be payable in such amounts so as to achieve modified mortgage style debt service payments (assuming for such purpose only that such Interest Period extends to April 1, 2040 for the Series 2019A Bonds and November 1, 2045 for the Series 2019B Bonds, unless changed as described below), and based on a 25-year amortization of the outstanding principal balance of each series of the Bonds. If a series of the Bonds is to bear interest at a Variable Rate, it shall be assumed for purposes of determining such amortization schedule that the Variable Rate in effect on the first day of such Interest Period shall remain in effect for the entire Interest Period. Notwithstanding the foregoing, the Lender and the Borrower may designate (without the consent of any other party) a different amortization schedule for a particular Interest Period upon delivery to the Issuer, the Lender and the Borrower of an opinion of Bond Counsel to the effect that the designation of a change in the amortization schedule will not adversely effect the exclusion of interest on the Bond from gross income for Federal income tax purposes. The Purchaser shall, upon the establishment of the interest rate on a series of the Bonds for a given Interest Period, prepare a revised amortization schedule in substitution for Schedule I hereto, which will reflect the level debt service payments on such series of the Bonds to be made during such Interest Period, based on the amount of years remaining on the 25-year amortization of the Bonds.
20
Page 37 of 91
A26. Page 411 of 574 The initial amortization schedule for the Series 2019B Bonds will be finalized after the last Bond Advance is made, consistent with Section 3.6 hereof
Borrower reserves the right to prepay on any installment payment date the unpaid principal balance of the Loan, in whole or in part at any time provided that (a) Borrower gives Lender not less than two (2) business days prior written notice of its intention to do so; and (b) Borrower pays, at the time of such prepayment and in addition thereto, all accrued interest to the date of such prepayment, all other unpaid Indebtedness then due.
If and so long as the Bonds bear interest at a Variable Rate, the Borrower can prepay the Bonds at par, plus accrued interest to the prepayment date.
Additionally, while any series of Bonds shall bear interest at a Fixed Rate, the Borrower shall also pay the Lender a “Prepayment Premium” as calculated below. The “Prepayment Premium” shall be equal to the amount, if any, by which the present value on the Prepayment Date of the Prepaid Payments exceeds the sum of the Prepaid Principal Payments plus the Prepaid Interest. Such present value shall be calculated by discounting to the Prepayment Date the Prepaid Payments at a rate equal to 250 basis points over the per annum Treasury Offered Rate relating to the Weighted Average Maturity of Prepaid Principal Payments on the basis of a year consisting of 365 or 366 days, as applicable, for actual days elapsed. As used in this paragraph, the following terms shall have the following meanings:
(a) “Prepayment Date” means the date on which a prepayment is to be made.
(b) “Prepaid Interest” means the interest or portion thereof, if any, which has accrued on the Indebtedness on the Prepayment Date but which is not scheduled pursuant to the Bonds to be due and paid until after the Prepayment Date.
(c) “Prepaid Payments” means the Prepaid Principal Payments plus the interest payments, whether installments or otherwise, scheduled pursuant to the Bonds to be due and paid after the Prepayment Date but which shall not accrue by reason of the prepayment of said Prepaid Principal Payments.
(d) “Prepaid Principal Payments” means the principal payments, whether installments or otherwise, scheduled pursuant to the Bonds to be due and paid after the Prepayment Date but which are to be prepaid on the prepayment Date. In the event of a partial prepayment, such scheduled principal payments shall be deemed prepaid in inverse order of maturity.
(e) “Treasury Offered Rate” for the Weighted Average Maturity means the per annum offered rate (as adjusted pursuant to the terms hereof) determined by Lender by reference to the then most recently auctioned U.S. Government Treasury Securities which correspond in maturity to the Weighted Average Maturity, or as interpolated between or among the most recently auctioned U.S. Government Treasury Securities closest in maturities occurring before and after the Weighted Average Maturity, as published on page 5 of the Telerate Screen (or any successor to such page) as of 10:00 a.m., Chicago time, on the Prepayment Date (or a date as near as practicable thereto). If such rate cannot be determined by Lender on such date by reference to the Telerate Screen, such rate shall be determined by Lender on the basis of the arithmetic mean of the offered rates quoted by the Reference Dealers as of 10:00 a.m., Chicago time, on such date for U.S. Government Treasury Securities with maturities determined as aforesaid. If such rate cannot be determined either by reference to the Telerate Screen or on the basis of the offered rates of the Reference Dealers, such rate shall be determined by Lender in good faith from such
21
Page 38 of 91
A26. Page 412 of 574 sources as shall then be available for the purpose. Such rate shall be adjusted to provide for a yield equal to the yield on an instrument paying interest on the same dates as the interest payment dates scheduled pursuant to the Bonds (or as near as practicable thereto).
(f) “Reference Dealers” means two U.S. Government Treasury Securities dealers in New York or Chicago of recognized standing selected by Lender.
(g) “Weighted Average Maturity” of Prepaid Principal Payments means the period of time (expressed as a number of days) from the Prepayment Date which is equal to the quotient of:
(i) the sum of the products of:
(A) the amount of each Prepaid Principal Payment, and
(B) the number of days between the Prepayment Date and the scheduled date of each such Prepaid Principal Payment, divided by:
(ii) the aggregate amount of Prepaid Principal Payments.
Section 3.5 Optional and Mandatory Tender. The Lender shall have the right to tender the Bond for purchase by the Borrower, and the Borrower shall have the right to cause the Lender to tender the Bond for purchase by the Borrower, as provided in Section 4 of the forms of Bond set forth in Exhibit B-1 and Exhibit B-2 hereto.
Section 3.6 Bond Advances. The Issuer, the Purchaser and the Borrower acknowledge and agree that at any time on or after December [6], 2019 and prior to the earliest to occur of: (i) the date when the sum of the aggregate Bond Advances of the Series 2019B Bonds hereunder equals $3,735,000 or (ii) the Commitment Termination Date (the earliest such date is hereinafter referred to as the “Advance Termination Date”).
The proceeds from the sale of the Series 2019B Bonds will be paid in installments through the making of Advances of the Purchaser in accordance with the terms of this Agreement and the Continuing Covenants Agreement pursuant to a request for Advance (in the form of Exhibit E hereto). The initial Bond Advance shall be paid to the Borrower pursuant to Section 3.1 hereof.
The Borrower shall submit properly completed subsequent Bond Advance Requisitions (in the form of Exhibit E hereto) to the Purchaser no later than 11:00 a.m. on any Business Day but no more frequently than once a month. Upon receipt by the Purchaser of such Bond Advance Requisition, and so long as an Event of Default does not then exist and such other conditions as are set forth in the Continuing Covenants Agreement are met, the Purchaser shall make the Bond Advance as requested in the Bond Advance Requisition by wire transfer of immediately available funds delivered to the Borrower not later than 11:00 a.m., Chicago, Illinois time, on the date requested. The full amount of each Bond Advance shall be deposited in the Bond Proceeds Account of the Project Fund and disbursed by the Purchaser in accordance with Section 3.2 hereto.
The date and amount of each Bond Advance shall be paid to the Purchaser for deposit in the Project Fund and disbursed in accordance with the terms and conditions of Section 3.2 of this Agreement and Section 6 of the Continuing Covenants Agreement. The Purchaser shall note the date and amount of each Bond Advance on the Exhibit 1 attached to the Series 2019B Bond and shall provide written notice of each Bond Advance to the Borrower. In no event may the total amount of all Bond
22
Page 39 of 91
A26. Page 413 of 574 Advances of the proceeds of the Series 2019B Bonds exceed the Rated Principal Amount of the Series 2019B Bonds.
The Purchaser shall, if less than $3,735,000 of principal shall be advanced including all Bond Advances, subsequent to the Advance Termination Date and attached to the final Bond Advance, prepare an amortization schedule for Schedule I hereto with respect to the Series 2019B Bonds, which will reflect the modified mortgage style debt service payments on the Series 2019B Bonds to be made during such Interest Period, based on the amount of years remaining on the 25-year amortization of the Series 2019B Bonds, consistent with the requirements of Section 3.4 hereof.
Section 3.7 Payments; Special, Limited Obligations. Issuer shall pay the principal of, premium, if any in accordance with Section 3.4 hereof, and interest on the Bonds, but only out of the amounts paid by Borrower pursuant to this Agreement. Borrower shall pay to Lender, as assignee of Issuer and as agent for the holders of the Bonds, loan payments, at the times set forth herein. Additionally, Borrower shall pay to Lender, as assignee of Issuer and holder of the Bonds, an amount equal to the product of (i) the Default Rate and (ii) the delinquent amount of any loan payment not paid when due. Such loan payments and other payments shall be made by Borrower directly to Lender, as Issuer’s assignee and holder of the Bonds, and shall be credited against Issuer’s payment obligations hereunder and under the Bonds. The Bonds shall be special, limited obligations of Issuer payable solely from payments or prepayments of the loan payments and any other payments made hereunder (other than Unassigned Rights); all of which shall be used for no other purpose than to pay the principal of, premium, if any, and interest on such Bonds and, to the extent described herein, other amounts payable hereunder. The Bonds are further secured by the Mortgage.
The obligations of Issuer under this Agreement and the Bonds are special, limited obligations of Issuer, payable solely from the revenues and income derived under this Agreement. The Bonds and the obligations of Issuer hereunder shall not constitute an indebtedness or an obligation of the Issuer, the State or any political subdivision or a loan of credit if any of them thereof within the meaning of any constitutional limitation or statutory provision, or a charge against the general credit or taxing powers, if any, of the Issuer, the State or any political subdivision thereof. No owner of the Bonds shall have the right to compel any exercise of the taxing power of the Issuer, the State or any political subdivision thereof to pay the principal of the Bonds or the interest or premium, if any, thereon. The revenues and income derived from this Agreement shall be used for no other purpose than to pay the principal installments of, premium, if any, and interest on the Bonds, except as otherwise authorized hereby. Neither the Issuer nor any member, director, officer, alderman, employee, official or agent of the Issuer nor any person executing the Bonds shall be liable personally for the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds.
Section 3.8 Payment on Non-Business Days. Whenever any payment to be made hereunder or under the Bonds shall be stated to be due on a day which is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or fees hereunder, as the case may be. Lender shall apply any payments received hereunder as follows: (a) first, to interest due and unpaid hereunder and under the Bonds, (b) second, to all other amounts due and unpaid hereunder and under the Bonds and (c) third, to any principal due hereunder and under the Bonds.
Section 3.9 [Reserved]
Section 3.10 Redemption. The Bonds shall be subject to optional and mandatory redemption as provided in Section 3 of the forms of the Bonds set forth in Exhibit B-1 and Exhibit B-2 hereto.
23
Page 40 of 91
A26. Page 414 of 574 The redemption date of the Bonds pursuant to any optional redemption provision in the Bonds will be a date permitted by the Bonds and specified by the Borrower in a written notice to the Issuer and the Lender at least three (3) days prior. The redemption date for a mandatory redemption will be determined by the Lender consistent with the provisions of the Bonds.
The Bonds called for redemption shall be paid at the applicable redemption price, plus interest accrued to the redemption date by payment directly to the Lender.
Upon surrender of a Bond optionally redeemed in part, the Bond Registrar will authenticate for the holder a new Bond equal in principal amount to the unredeemed portion of the Bond surrendered. Partial redemption payments shall be allocated to the principal installments payable on the Bond in the inverse order of their due date, or otherwise as agreed to by the Lender and the Borrower.
The Borrower shall make loan repayments hereunder sufficient at all times to pay the principal of, premiums, if any, and interest on the Bonds so called for optional or mandatory redemption.
Section 3.11 Bond Register. The Bonds may be presented at the office of the Bond Registrar for registration, transfer and exchange. The Bond Registrar shall keep a register of the Bonds and of its transfer and exchange.
A Bond may be transferred only on the register maintained by the Bond Registrar. Upon surrender for transfer of the Bond to the Bond Registrar, duly endorsed for transfer or accompanied by an assignment duly executed by the holder or the holder’s attorney duly authorized in writing, the Bond Registrar will authenticate a new Bond in an equal total principal amount and registered in the name of the transferee.
The Issuer may treat the registered owner of the Bond as the absolute owner thereof for all purposes, whether or not the Bond shall be overdue, and shall not be bound by any notice to the contrary. All payments of or on account of the principal of and the premium, if any, and the interest on any Bond as herein provided shall be made only to or upon the written order of the registered owner thereof or his legal representative, but such registration may be changed as herein provided. All such payments shall be valid and effectual to satisfy and discharge the liability upon the Bond to the extent of the sum or sums so paid.
The Bond Registrar will require the payment by the Lender requesting exchange or transfer of any tax or other governmental charge required to be paid in respect of the exchange or transfer but will not impose any other charge.
Section 3.12 Mutilated, Lost, Stolen or Destroyed Bonds. If a Bond is mutilated, lost, stolen or destroyed, the Bond Registrar will authenticate a new Bond of the same denomination if any mutilated Bond shall first be surrendered to the Bond Registrar, and if, in the case of any lost, stolen or destroyed Bond, there shall first be furnished to the Bond Registrar evidence of such loss, theft or destruction, together with a satisfactory indemnity to the Bond Registrar, the Issuer and the Borrower. If a Bond has matured, instead of issuing a duplicate Bond, the Bond Registrar may with the consent of the Borrower pay the Bond without requiring surrender of the Bond (except in the case of a mutilated Bond) and make such requirements as the Bond Registrar deems fit for its protection, including a lost instrument bond. The Issuer, the Borrower and the Bond Registrar may charge their customary fees and reasonable expenses in this connection.
Section 3.13 Cancellation of Bonds. Whenever a Bond is delivered to the Bond Registrar for cancellation (upon payment, redemption or otherwise), or for transfer or replacement
24
Page 41 of 91
A26. Page 415 of 574 pursuant to Section 3.11 or 3.12, the Bond Registrar will promptly cancel and destroy the Bond in accordance with its customary procedures and issue a certificate of destruction to the Borrower and the Issuer.
Section 3.14 Temporary Bond. Until a definitive Bond is ready for delivery, the Issuer may execute and the Bond Registrar will authenticate a temporary Bond substantially in the form of the definitive Bond, with appropriate variations. The Issuer will, without unreasonable delay, prepare and the Bond Registrar will authenticate a definitive Bond in exchange for the temporary Bond. Such exchange shall be made by the Bond Registrar without charge to the Lender.
Section 3.15 Further Assurances. The Issuer will execute and deliver such further instruments, and do such further acts, as the Lender may reasonably require for the better assuring, assigning and confirming to the Lender the amounts assigned and pledged hereunder for the payment of the Bonds.
Section 3.16 Tax Exemption. Subject to the limitations on its liability as stated herein and to the extent permitted by law, the Issuer covenants and agrees that it has not knowingly engaged and will not knowingly engage in any activities and that it has not knowingly taken and will not knowingly take any action which might result in any interest on the Bond becoming includable in the gross income of the owners thereof for purposes of Federal income taxation.
Section 3.17 Performance of Covenants; Issuer. The Issuer covenants that it will faithfully perform on its part at all times any and all covenants, undertakings, stipulations and provisions contained in this Agreement, in any and every Bond executed, authenticated and delivered hereunder and in all of its proceedings pertaining thereto; provided, however, that except for the matters set forth in any documents hereof relating to payment of the Bonds, the Issuer shall not be obligated to take any action or execute any instrument pursuant to any provision hereof until it shall have been requested to do so by the Borrower or by Lender, or shall have received the instrument to be executed and at the option of the Issuer shall have received from the party requesting such action or execution assurance satisfactory to the Issuer that the Issuer shall be reimbursed for its reasonable expenses, including legal counsel fees, incurred or to be incurred in connection with taking such action or executing such instrument. The Issuer covenants that it is duly authorized under the Constitution and the laws of the State, including particularly the Ordinance to issue the Bonds authorized hereby and to execute this Agreement, to grant the security interest herein provided, to assign and pledge this Agreement (except the Unassigned Rights and as otherwise provided herein) and to assign and pledge the amounts hereby assigned and pledged in the manner and to the extent herein set forth, that all action on its part for the issuance of the Bonds and the execution and delivery of this Agreement has been duly and effectively taken, and that the Bonds in the hands of the owners thereof are and will be valid and enforceable obligations of the Issuer according to the terms thereof and hereof, except to the extent that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting generally the enforcement of creditors’ rights and equitable principles. Anything contained in this Agreement to the contrary notwithstanding, it is hereby understood that none of the covenants of the Issuer contained in this Agreement are intended to create a general or pecuniary obligation of the Issuer.
Section 3.18 Fees, Charges and Expenses of the Issuer. The Issuer shall be entitled to payment and reimbursement for all advances, counsel fees and other expenses reasonably made or incurred by the Issuer in connection with the Bonds.
Section 3.19 Provisions for Payment of Expenses. The Issuer shall not be obligated to execute any documents or take any other action under or pursuant to this Agreement or any other document in connection with the Bonds unless and until provision for the payment of expenses of the
25
Page 42 of 91
A26. Page 416 of 574 Issuer, including legal counsel fees, shall have been made. Provisions for expenses shall be deemed to have been made upon arrangements reasonably satisfactory to the Issuer for the provision of expenses being agreed upon by the Issuer and the party requesting such execution.
ARTICLE IV REPAYMENT
Section 4.1 Loan Repayment. (a) Principal Premium and Interest. The application of the proceeds of the Bonds pursuant to Section 3.1 and 3.6 hereof shall constitute the loan of such proceeds by the Issuer to the Borrower. As repayment of such loan, the Borrower agrees to pay directly to the Lender (as the assignee of the Issuer) amounts sufficient to pay the principal of, premium, if any or interest on the Bonds on each day on which any payment of principal of, premium, if any or interest on the Bonds shall become due (whether on an interest payment date, at maturity, or upon redemption or acceleration or otherwise). Such amounts shall be paid in immediately available funds on or before 11:00 a.m. (local time at the principal office of the Lender). If the Borrower defaults in any payment required by this Section, the Borrower will pay interest (to the extent allowed by law) on such amount until paid at the rate provided for in Section 3.4 hereof.
(b) Purchase Price. The Borrower agrees to pay directly to the Lender (as the assignee of the Issuer) amounts sufficient to pay the purchase price of the Bonds required by the Lender to be purchased by the Borrower or required by the Borrower to be purchased from the Purchaser, pursuant to Section 3.6 hereof. Such amounts shall be paid in immediately available funds on or before 11:00 a.m. (local time at the principal office of the Lender).
Section 4.2 Prepayments. The Borrower may prepay to the Lender all or any part of the amounts payable under Section 4.1(a) at any time that the Bonds shall be subject to optional redemption, solely as provided in this Agreement and the Bonds, and at a prepayment price equal to the corresponding redemption price of the Bonds. A prepayment shall not relieve the Borrower of its obligations under this Agreement until the Bonds have been paid in full or provision for the payment of the Bonds in full has been made in accordance with this Agreement. In the event of a mandatory redemption of the Bonds, the Borrower agrees to prepay all or any part of the amounts payable under Section 4.1(a) at a prepayment price equal to the corresponding redemption price of the Bonds. Partial prepayments of the Loan made to the Borrower hereunder shall reduce the monthly principal installments hereunder in such manner as shall be agreed upon by the Borrower and the Lender, or in the absence of such agreement, in inverse order of their due date.
Section 4.3 Assignment and Pledge; Obligations of Borrower Unconditional. The Issuer hereby assigns and grants to the Lender a security interest in any and all of the Issuer’s right, title and interest in and to (a) all amounts payable by the Borrower to it hereunder and all rights to enforce the same, excluding only the Unassigned Rights, and (b) all funds and accounts created or held by any party pursuant to this Agreement. The Issuer will not sell, assign or otherwise dispose of its rights under or interest in this Agreement nor create or permit to exist any lien, encumbrance or other security interest in or on such rights or interest, except as set forth above. The Issuer hereby directs the Borrower to make said payments directly to the Lender. The Borrower herewith assents to such assignment and pledge and will make payments directly to the Lender without defense or set-off by reason of any dispute between the Borrower and the Issuer or Lender, and hereby agrees that its obligation to make payments hereunder and to perform its other agreements contained herein are absolute and unconditional. The obligations of Borrower to make the loan payments required under this Article IV and to make any other payments hereunder and to perform and observe the covenants and agreements contained herein shall be absolute and unconditional in all events, without abatement, diminution, deduction, setoff or defense for any reason. Notwithstanding any dispute between Borrower
26
Page 43 of 91
A26. Page 417 of 574 and any of Issuer, Lender or any other person, until the principal of and interest on the Bonds shall have been fully paid or provision for the payment of the Bonds made in accordance herewith, the Borrower (a) will not suspend or discontinue any payments provided for in this Agreement, (b) will perform all its other duties and responsibilities called for by Agreement, and (c) will not terminate for any cause including any acts or circumstances that may constitute failure of consideration, destruction of or damage to the Project, commercial frustration of purpose, any change in the laws of the United States or of the State or any political subdivision of either or any failure of the Issuer to perform any of its agreements, whether express or implied, or any duty, liability or obligation arising from or connected with this Agreement.
Section 4.4 Additional Expenses. The Borrower will also pay:
(a) On the Closing Date, to Issuer’s counsel, its fee of $______in connection with the Bonds; and
(b) The Borrower will also pay within 30 days after receipt of a bill therefor the reasonable fees and expenses of the Issuer incurred in connection with Agreement and the Bonds, such fees and expenses to be paid directly to the Issuer or as otherwise directed in writing by the Issuer.
ARTICLE V BORROWER COVENANTS
Section 5.1 Financing Statements.
(a) The Borrower will, at its own expense, take all necessary action to maintain and preserve the liens and security interest of this Agreement so long as any principal of, premium, if any, or interest on the Bonds remains unpaid.
(b) The Borrower will, promptly after the execution and delivery of this Agreement and thereafter from time to time, cause a financing statement in respect of this Agreement to be filed, registered and recorded in such manner and in such places as may be required by law in order to publish notice of and fully to perfect and protect the lien and security interest herein granted to the Lender to the rights, if any, of the Issuer assigned and pledged hereunder, and from time to time will perform or cause to be performed any other act as provided by law and will execute or cause to be executed any and all continuation statements and further instruments necessary for such publication, perfection and protection. Except to the extent it is exempt therefrom, the Borrower will pay or cause to be paid all filing, registration and recording fees incident to such filing, registration and recording, and all expenses incident to the preparation, execution and acknowledgment of such instruments of further assurance, and all Federal or State fees and other similar fees, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of the Borrower Agreements and such instruments of further assurance.
(c) The Issuer shall have no responsibility for the preparation, filing or recording of any instrument, document or financing statement or for the maintenance of any security interest intended to be perfected thereby. The Issuer will execute such instruments provided to it by the Borrower as may be reasonably necessary in connection with such filing or recording.
Section 5.2 Borrower’s Obligation with Respect to Exclusion of Interest Paid on the Bonds. The Borrower will not take any action, omit to take any action or permit the taking or
27
Page 44 of 91
A26. Page 418 of 574 omission of any action within its control (including, without limitation, making or permitting any use of the proceeds of the Bonds) if taking or omitting to take such action would result in the revocation or modification of its status as an organization described in Section 501(c)(3) of the Code or would cause the interest on the Bonds to be included in the gross income of the recipients thereof for federal income tax purposes. Toward that end, the Borrower covenants that it will comply with all provisions of the Tax Agreements applicable to it. This provision shall control in case of conflict or ambiguity with any other provision of this Agreement.
Section 5.3 Maintenance of Not For Profit Existence, Tax Status and Operation of Facilities. The Borrower agrees that (a) it will at all times maintain its existence as a not for profit corporation organized under the laws of the State; (b) that it will not take any action or permit any action to be taken by others within its control which will alter, change or destroy its status as a not for profit corporation or its status as a Tax-Exempt Organization; and (c) will not fail to take any action within its control to preserve its status as a not for profit corporation or its status as a Tax-Exempt Organization.
The Borrower further covenants that none of its revenues, income or profits, whether realized or unrealized, will be distributed to any of its officers or trustees or inure to the benefit of any private person, association or corporation, other than for the lawful corporate purposes of the Borrower, including but not limited to the Borrower’s ability to pay to any person employed by Borrower a salary and otherwise to any person, association or corporation the reasonable value of any service or product performed for or supplied to the Borrower by such person, association or corporation.
Borrower will operate its facilities primarily as a school or as facilities related thereto, and will operate all its property on a non-discriminatory basis, will charge such fees and rates for its facilities and services and will exercise such skill and diligence as to provide income from its property together with other available funds sufficient to pay promptly all expenses of operation, maintenance and repair of its property, all amounts owing on the Loan and the Bonds and all other payments required to be made by Borrower under this Agreement. Borrower further covenants and agrees that it will, from time to time as often as necessary, and to the extent permitted by law, revise its rates, fees and charges in such manner or take such other action as may be necessary or proper to comply with the provisions of this paragraph.
Section 5.4 Maintenance of Corporate Existence; Dissolution; Merger or Consolidation. Unless the Borrower complies with the following provisions of this Section 5.4, the Borrower agrees that as long as the Bonds are outstanding it will maintain its existence, will not dissolve, liquidate or otherwise dispose of all or substantially all of its assets, and will not consolidate with or merge into another corporation or permit one or more other corporations to consolidate with or merge into it, except as hereinafter provided. Any dissolution, liquidation, disposition, consolidation or merger shall be subject to the following conditions:
(a) the Borrower provides a certificate to the Issuer and the Purchaser, in form and substance satisfactory to such parties, to the effect that no Event of Default exists hereunder and that no Event of Default will be caused by the dissolution, liquidation, disposition, consolidation or merger;
(b) the entity surviving the dissolution, liquidation, disposition, consolidation or merger assumes in writing and without condition or qualification the obligations of the Borrower under the Borrower Agreements;
(c) the Borrower or the entity surviving the dissolution, liquidation, disposition, consolidation or merger, within ten (10) days after execution thereof, furnishes to the Issuer and
28
Page 45 of 91
A26. Page 419 of 574 the Lender a true and complete copy of the instrument of dissolution, liquidation, disposition, consolidation or merger;
(d) neither the validity nor the enforceability of the Bonds, or any Borrower Agreement is adversely affected by the dissolution, liquidation, disposition, consolidation or merger;
(e) the exclusion of the interest on the Bonds from gross income for federal income tax purposes is not adversely affected by the dissolution, liquidation, disposition, consolidation or merger, and the provisions of this Agreement and the Tax Agreements are complied with concerning the dissolution, liquidation, disposition, consolidation or merger;
(f) the Project continues to be as described herein;
(g) any successor to the Borrower shall be qualified to do business in the State of Illinois, shall continue to be qualified to do business in the State throughout the term hereof and shall be a Tax-Exempt Organization; and
(h) the Issuer has executed a certificate acknowledging receipt of all documents, information and materials required by this Section 5.4.
As of the effective date of the dissolution, liquidation, disposition, consolidation or merger, the Borrower (at its cost) shall furnish to the Issuer and Lender (i) an opinion of Bond Counsel, in form and substance satisfactory to such parties, as to items (d) and (e) above, and (ii) an Opinion of Counsel, in form and substance satisfactory such parties, as to the legal, valid and binding nature of item (b) above.
Section 5.5 Operation, Sale, Lease or Sublease of the Project. The Borrower will not make any material change in its use of the Project unless the Lender and the Issuer receive an opinion of Bond Counsel to the effect that such change will not impair the exclusion of interest on the Bonds from the gross income of holders of the Bonds for federal income tax purposes.
Upon a sale, lease or sublease of all or any portion of the Borrower’s interest in the Project (to the extent permitted hereunder), the Borrower will obtain, or cause there to be obtained, the agreement of the purchaser, lessee or sublessee of the Project or any interest therein to comply with the provisions of this Section, regardless of whether such purchaser, lessee or sublessee assumes the obligations of the Borrower under this Agreement generally, and will provide the Issuer and the Lender with an opinion of Bond Counsel to the effect that the sale, lease or sublease will not adversely affect the exclusion of the interest on the Bonds from the Federal gross income of the owners thereof.
Section 5.6 No Warranty by the Issuer. THE BORROWER RECOGNIZES THAT THE ISSUER HAS NOT MADE AN INSPECTION OF THE SCHOOL FACILITY OR THE PROJECT OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, AND THE ISSUER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR THE LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, CONDITION, WORKMANSHIP, OR FITNESS, SUITABILITY OR USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF. THE BORROWER FURTHER RECOGNIZES THAT THE ISSUER HAS NO TITLE INTEREST TO ANY PART OF THE SCHOOL FACILITY OR THE PROJECT AND THAT THE ISSUER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE BORROWER’S TITLE THERETO OR OWNERSHIP THEREOF OR OTHERWISE, IT BEING AGREED THAT ALL RISKS
29
Page 46 of 91
A26. Page 420 of 574 INCIDENT THERETO ARE TO BE BORNE BY THE BORROWER. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT, THE ISSUER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY THE ISSUER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OF THE STATE OF ILLINOIS OR ANOTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
Section 5.7 Compliance with Laws. The Borrower shall, through the term of this Agreement and at no expense to the Issuer, promptly comply or cause compliance with all applicable laws, ordinances, orders, rules, regulations and requirements of duly constituted public authorities which may be applicable to the School Facility and the Project or to the repair and alteration thereof, or to the use or manner of use of the Project, including, but not limited to, the Americans with Disabilities Act, Illinois Accessibility Code, all Federal, State and local environmental, health and safety laws, rules, regulations and orders applicable to or pertaining to the School Facility or the Project.
Section 5.8 Application of Certain Restricted Gifts. To the extent the Borrower receives gifts and/or donations, the use of which is restricted to the Project (“Restricted Project Gifts”), the Borrower agrees to either: (i) use the proceeds of such restricted gifts and/or donations for costs of the Project not funded with proceeds of the Bonds or (ii) prepay some or all of the Loan pursuant to Section 4.2 hereof. Charitable contributions not restricted as set forth above will not be deemed to be Restricted Project Gifts and therefore will not be subject to the provisions of this Section.
Section 5.9 Issuer’s and Lender’s Right of Access to the Project. The Borrower agrees that during the term of this Agreement the Issuer, the Lender, and their duly authorized agents shall have the right, but shall be under no duty or obligation to exercise this right, during regular business hours, with reasonable notice, to enter upon the premises and examine and inspect the Project, subject to such limitations, restrictions and requirements as the Borrower may reasonably prescribe.
Section 5.10 Maintenance and Repair; Insurance. The Borrower will maintain the Project in a safe and sound operating condition, making from time to time all needed material repairs thereto, and shall maintain reasonable amounts of insurance coverage with respect to the Project and shall pay all costs of such maintenance, repair and insurance.
Section 5.11 Covenants from Borrower to Lender. The Borrower is making certain covenants for the benefit of the Lender (but not for the benefit of the Issuer or any other party) which covenants are set forth in the Continuing Covenants Agreement. The Borrower and the Lender may amend the Continuing Covenants Agreement without notice to or consent of any other party provided, however, that no amendments to the Continuing Covenants Agreement will be effective until the Borrower has delivered an opinion of Bond Counsel addressed to the Lender, the Issuer and the Borrower that the exclusion of interest on the Bonds from gross income for federal income tax purposes is not adversely affected by the amendments.
Section 5.12 Rebate Funds. (a) The Issuer hereby creates with the Borrower a special fund to be known as the “Series 2019A Rebate Fund,” which shall be continuously held, invested, expended and accounted for in accordance with this Agreement and the Series 2019A Tax Agreement. Capitalized terms used in this Section which are not otherwise defined herein shall have the meanings specified in the Series 2019A Tax Agreement. Moneys in the Series 2019A Rebate Fund shall
30
Page 47 of 91
A26. Page 421 of 574 be free and clear of the lien of this Agreement and shall not be considered moneys held for the benefit of the owners of the Series 2019A Bonds. Except as provided in the Regulations, moneys in the Series 2019A Rebate Fund (including earnings and deposits therein) shall be held in trust for payment to the United States as required by the Regulations.
In addition to the amounts provided in this Agreement, the Borrower hereby agrees to deposit in the Series 2019A Rebate Fund for payment to the United States any amount which under the Regulations must be deposited in the Series 2019A Rebate Fund for payment to the United States with respect to the Series 2019A Bonds. Any moneys remaining in the Series 2019A Rebate Fund seventy- five (75) days after redemption and payment of all of the Series 2019A Bonds and payment and satisfaction of any rebatable arbitrage shall be withdrawn and paid to the Borrower.
(B) The Issuer hereby creates with the Borrower a special fund to be known as the “Series 2019B Rebate Fund,” which shall be continuously held, invested, expended and accounted for in accordance with this Agreement and the Series 2019B Tax Agreement. Capitalized terms used in this Section which are not otherwise defined herein shall have the meanings specified in the Series 2019B Tax Agreement. Moneys in the Series 2019B Rebate Fund shall be free and clear of the lien of this Agreement and shall not be considered moneys held for the benefit of the owners of the Series 2019B Bonds. Except as provided in the Regulations, moneys in the Series 2019B Rebate Fund (including earnings and deposits therein) shall be held in trust for payment to the United States as required by the Regulations.
In addition to the amounts provided in this Agreement, the Borrower hereby agrees to deposit in the Series 2019B Rebate Fund for payment to the United States any amount which under the Regulations must be deposited in the Series 2019B Rebate Fund for payment to the United States with respect to the Series 2019B Bonds. Any moneys remaining in the Series 2019B Rebate Fund seventy-five (75) days after redemption and payment of all of the Series 2019B Bonds and payment and satisfaction of any rebatable arbitrage shall be withdrawn and paid to the Borrower.
ARTICLE VI INDEMNIFICATION
Section 6.1 Indemnification. (a) The Borrower will pay, and will protect, indemnify and save the Issuer and its respective past, present and future members, officers, aldermen, officials, directors, employees, agents, successor, assigns and any other person, if any, who “controls” the Issuer as that term is defined in Section 15 of the Securities Act of 1933, as amended (the Issuer and the other listed persons, collectively referred to as, the “Indemnified Persons”) harmless from and against any and all liabilities, losses, damages, taxes, penalties, costs and expenses (including attorneys’ fees and expenses of the Issuer), causes of action, suits, proceedings, claims, demands, tax reviews, investigations and judgments of whatsoever kind and nature (including, but not limited to, those arising or resulting from any injury to or death of any person or damage to property) arising from or in any manner directly or indirectly growing out of or connected with the following:
(1) the use, financing, non-use, condition or occupancy of the School Facility or the Project, any repairs, construction, alterations, renovation, relocation, remodeling and equipping thereof or thereto or the condition of any properties of the Borrower, the School Facility or such Project including adjoining sidewalks, streets or alleys and any equipment or facilities at any time located on or connected with the School Facility or such Project or used in connection therewith;
31
Page 48 of 91
A26. Page 422 of 574 (2) a violation of any agreement, warranty, covenant or condition of this Agreement or any other agreement executed in connection with this Agreement;
(3) a violation of any contract, agreement or restriction by the Borrower relating to its properties, the School Facility or the Project;
(4) a violation of any law, ordinance, rule, regulation or court order affecting the School Facility or the Project or the ownership, occupancy or use thereof or the Bonds or use of the proceeds thereof;
(5) any statement or information concerning the Borrower, any of its officers and members, its operations or financial condition generally or the School Facility or the Project, furnished to the Issuer or the purchaser of any Bond, that is untrue or incorrect in any material respect, and any omission from such statement or information which should be contained therein for the purpose for which the same is to be used or which is necessary to make the statements therein concerning the Borrower, any of its officers and members, the School Facility or the Project not misleading in any material respect, provided that and the Indemnified Person did not have actual knowledge of the omission or misstatement;
(6) the acceptance or administration of this Agreement, including without limitation the enforcement of any remedies hereunder and under any related documents;
(7) any loss, liability or expense incurred arising out of or in connection with the acceptance or administration of this Agreement or any other Borrower Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of its powers or duties hereunder or thereunder;
(8) any other loss, liability or expense arising out of or in connection with the issuance of the Bonds and entering into of the transaction related thereto, including without limitation the enforcement of any remedies under this Agreement or any other Borrower Agreement; and
(9) the presence on or in, or the escape, seepage, leakage, spillage, discharge, emission or release from, the properties of the Borrower, the School Facility or the Project of any hazardous or toxic waste, substance or constituent, or other substance or the violation of any statute, regulation, order, ordinance, resolution or local law relating to environmental protection, hazardous substances or environmental cleanup.
(b) In case any claim shall be made or any action shall be brought against one or more of the Indemnified Persons in respect of which indemnity can be sought against the Borrower pursuant to the preceding paragraph (a), the Indemnified Party seeking indemnity shall promptly notify the Borrower, in writing, and the Borrower shall promptly assume the defense thereof, including the employment of counsel chosen by the Borrower and approved by the Issuer (provided, that such approval by the Issuer shall not be unreasonably withheld), the payment of all expenses and the right to negotiate and consent to settlement. If any Indemnified Person is advised in a written opinion of counsel that there may be legal defenses available to such Indemnified Person which are adverse to or in conflict with those available to the Borrower or that the defense of such Indemnified Person should be handled by separate counsel, the Borrower shall not have the right to assume the defense of such Indemnified Person, but the Borrower shall
32
Page 49 of 91
A26. Page 423 of 574 be responsible for the reasonable fees and expenses of counsel retained by such Indemnified Person in assuming its own defense, and provided also that, if the Borrower shall have failed to assume the defense of such action or to retain counsel reasonably satisfactory to the Issuer within a reasonable time after notice of the commencement of such action, the reasonable fees and expenses of counsel retained by the Indemnified Person shall be paid by the Borrower. Notwithstanding the foregoing, any one or more of the Indemnified Persons shall have the right to employ separate counsel with respect to any such claim or in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Person unless the employment of such counsel has been specifically authorized by the Borrower or unless the provisions of the immediately preceding sentence are applicable. The Borrower shall not be liable for any settlement of any such action affected without the consent of the Borrower, but if settled with the consent of the Borrower or if there be a final judgment for the plaintiff in any such action with or without consent, the Borrower agrees to indemnify and hold harmless the Indemnified Person from and against any loss, liability or expense by reason of such settlement or judgment.
(c) The Borrower shall also indemnify the Issuer and such Indemnified Persons for, and shall pay, all reasonable costs and expenses, including reasonable counsel fees, incurred in: (i) enforcing any obligation of the Borrower under this Agreement or any Related Document, (ii) taking any action requested by the Borrower, (iii) taking any action required by this Agreement or any Related Document, or (iv) taking any action considered necessary by the Issuer and which is authorized by this Agreement or any Related Document. If the Issuer is to take any action under this Agreement or any other instrument executed in connection herewith for the benefit of the Borrower, it will do so if and only if (i) the Issuer is a necessary party to any such action or proceeding, and (ii) the Issuer has received specific written direction from the Borrower, as required hereunder or under any other instrument executed in connection herewith, as to the action to be taken by the Issuer.
(d) All amounts payable to the Issuer under this Section shall be deemed to be fees and expenses payable to the Issuer for the purposes of the provisions hereof dealing with the assignment and pledge of the Issuer’s rights hereunder (other than the Unassigned Rights). The Issuer and its members, officers, aldermen, officials, agents, employees and their successors and assigns shall not be liable to the Borrower for any reason.
(e) Any provision of this Agreement or any other instrument or document executed and delivered in connection herewith to the contrary notwithstanding, the Issuer retains the right to (i) enforce any applicable Federal or State law or regulation or ordinance, resolution or regulation of the Issuer, and (ii) enforce any rights accorded to the Issuer by Federal or State law or regulation of the Issuer, and nothing in this Agreement shall be construed as an express or implied waiver thereof.
(f) The Purchaser agrees, at its expense, to indemnify, defend and hold harmless the Issuer, along with the Issuer’s past, present and future members, officers, employees, alderman officials, directors, agents, assigns and any other person, if any, who “controls” the Issuer as that term is defined in Section 15 of the Securities Act of 1933, as amended (the Issuer and the other listed persons, collectively referred to as, the “Indemnified Persons”) harmless from and against any and all liabilities, losses, damages, taxes, penalties, costs and expenses (including attorneys’ fees and expenses of the Issuer), (“Issuer Indemnified Parties”), from and against any and all losses, claims, damages, demands, liabilities, costs or expenses (collectively, the “Claims”), including reasonable attorneys’ fees and expenses, if such Claims are the result of, arise out of or are materially increased, strengthened or enhanced by or would not exist but for a breach by the
33
Page 50 of 91
A26. Page 424 of 574 Purchaser of its duties under, or failure to abide by any of its covenants in this Agreement. The Purchaser shall promptly assume the defense of any Claim made against any Issuer Indemnified Party, including the employment of counsel reasonably satisfactory to the Issuer at the sole expense of the Purchaser.
Section 6.2 Default by Issuer — Limited Liability. Notwithstanding any provision or obligation to the contrary hereinbefore set forth, no provision of this Agreement shall be construed so as to give rise to a pecuniary liability of the Issuer or to give rise to a charge upon the general credit or taxing power of the Issuer, the liability of the Issuer hereunder shall be limited to its interest in this Agreement and all other Related Documents and collateral and the lien of any judgment shall be restricted hereto. In the performance of the agreements of the Issuer herein contained, any obligation it may incur for the payment of money shall not be a debt of the Issuer, nor shall the Issuer be liable on any obligation so incurred. The Issuer does not assume any obligation or liability for the repayment of the Bonds or for the costs, fees, penalties, taxes, interest, omissions, charges, insurance or any other payments recited herein, and shall be obligated to pay the same only out of the amounts payable by the Borrower hereunder. The Issuer shall not be required to do any act whatsoever or exercise any diligence whatsoever to mitigate the damages to the Borrower if a default shall occur hereunder.
ARTICLE VII [RESERVED]
ARTICLE VIII DEFAULTS AND REMEDIES
Section 8.1 Events of Default. An “Event of Default” is any of the following:
(a) There is a failure to pay interest on the Bonds when due.
(b) There is a failure to pay principal of the Bonds when due, at maturity, upon acceleration or redemption or otherwise.
(c) There is a failure to pay the purchase price of any Bond when due upon optional or mandatory tender.
(d) The Issuer fails to perform any of its agreements in this Agreement (except a failure that results in an Event of Default under clause (a), (b) or (c) above, the performance of which is material to the Lender), and the failure continues after the notice and for the period specified in this Section.
(e) The Borrower fails to perform any of its agreements in this Agreement (except a failure that results in an Event of Default under clause (a) or (b) of this Section), and the failure continues after the notice and for the period specified in this Section.
(f) The Borrower pursuant to or within the meaning of any Bankruptcy Law (as defined below) (1) commences a voluntary case, (2) consents to the entry of an order for relief against it in an involuntary case, (3) consents to the appointment of a Custodian (as defined below) for the Borrower, or any substantial part of its property or (4) makes a general assignment for the benefit of its creditors.
(g) A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (1) is for relief against the Borrower in an involuntary case, (2) appoints a Custodian for
34
Page 51 of 91
A26. Page 425 of 574 the Borrower or any substantial part of its, his or her property or (3) orders the winding up or liquidation of the Borrower, and the decree or order remains unstayed and in effect for 60 days.
(h) An Event of Default occurs and is continuing under any Related Document (after the expiration of any applicable cure period).
A default under clause (d) or (e) of this Section is not an Event of Default until the Lender gives the Issuer and the Borrower a notice specifying the default, demanding that it be remedied and stating that the notice is a “Notice of Default,” and the Issuer or the Borrower does not cure the default within 30 days after receipt of the notice, or within such longer period as the Lender shall agree. The Issuer authorizes the Borrower to perform, in the name and on behalf of the Issuer and for the purpose of curing or preventing the occurrence of an Event of Default, any agreement of the Issuer in this Agreement or the Bonds.
Section 8.2 Acceleration. If any Event of Default occurs and is continuing, the Lender by notice to the Issuer and the Borrower (except for an Event of Default under clause (e) or (f) of the foregoing Section, for which a declaration can be made without any notice), may declare the principal of and accrued interest on the Bonds to be due and payable immediately, and such principal and interest shall thereupon become and be immediately due and payable. The Lender may rescind an acceleration and its consequences if all existing Events of Default have been cured or waived, if the rescission would not conflict with any judgment or decree.
Section 8.3 Other Remedies. If an Event of Default occurs and is continuing, the Purchaser may pursue any available remedy by proceeding at law or in equity to collect the principal of or interest on the Bonds or to enforce the performance of any provision of the Bonds or this Agreement.
A delay or omission by the Lender in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default.
Section 8.4 Waiver of Past Defaults. The Lender by notice to the Issuer and the Borrower may waive an existing Event of Default and its consequences. When an Event of Default is waived, it is cured and stops continuing, but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent to it.
Section 8.5 Lender May File Proofs of Claim. The Lender may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Lender allowed in any judicial proceedings relative to the Borrower, its creditors or its property and, unless prohibited by law or applicable regulations, may vote on behalf of the holders in any election of a trustee in bankruptcy or other person performing similar functions.
Section 8.6 Attorneys’ Fees and Expenses. If the Borrower should default under any provision of this Agreement and the Issuer or Lender employ attorneys or incur other expenses for the collection of the payments due under this Agreement, the Borrower will on demand pay to the Issuer or the Lender, as the case may be, the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Issuer or the Lender, as the case may be.
Section 8.7 No Remedy Exclusive. No remedy herein conferred upon or reserved to the Issuer or the Lender is intended to be exclusive of any other available remedy or remedies but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement, now or hereafter existing, at law or in equity or by statute. No delay or omission to
35
Page 52 of 91
A26. Page 426 of 574 exercise any right or power and accruing upon any Event of Default hereunder shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient.
Section 8.8 Enforcement of Unassigned Rights. Notwithstanding anything herein to the contrary, the Issuer may pursue any available remedy by proceeding at law or in equity to enforce its Unassigned Rights.
ARTICLE IX MISCELLANEOUS
Section 9.1 Notices. (a) Any notice, request, direction, designation, consent, acknowledgment, certification, appointment, waiver or other communication required or permitted by this Agreement or the Bonds must be in writing except as expressly provided otherwise in this Agreement or the Bonds.
(b) Any notice or other communication shall be sufficiently given and deemed given when delivered by hand or mailed by first-class mail, postage prepaid, or delivered by national overnight courier, charges prepaid addressed as follows:
Lender: Fifth Third Bank, N.A. 222 South Riverside Plaza Chicago, IL 60606 Attention: Lauren Sadowski
Issuer: City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201 Attention: City Manager Telephone: (847) 866-2936 Telecopier: (847) 448-8083
With a copy to: City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201 Attention: Corporation Counsel Telephone: (847) 866-2937 Telecopier: (847) 448-8093
Borrower: Chiaravalle Montessori School 425 Dempster Street Evanston, Illinois 60201 Attention: Head of School Telephone: (847) 864-0275 Telecopier: (847) 570-0140
36
Page 53 of 91
A26. Page 427 of 574 With a copy to: Chiaravalle Montessori School 425 Dempster Street Evanston, Illinois 60201 Attention: Director of Finance and Operations Telephone: (847) 864-0275 Telecopier: (847) 570-0140
Any addressee may designate additional or different addresses for purposes of this Section.
Section 9.2 Required Reporting to the Issuer.
The Lender shall keep, or cause to be kept, proper books of records and accounts in which complete and accurate entries shall be made of all funds and accounts established by or pursuant to this Agreement, which shall at all reasonable times be subject to the inspection by the Issuer and the Purchaser.
Section 9.3 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Borrower, the Lender and their respective successors and assigns.
Section 9.4 Severability. If any provision of this Agreement shall be determined to be unenforceable at any time, that shall not affect any other provision of this Agreement or the enforceability of that provision at any other time.
Section 9.5 Amendments. After the issuance of the Bonds, this Agreement may not be effectively amended or terminated without the written consent of the parties hereto. Right of Borrower to Perform Issuer’s Agreements. The Issuer irrevocably authorizes and empowers the Borrower to perform in the name and on behalf of the Issuer any agreement made by the Issuer in this Agreement which the Issuer fails to perform in a timely fashion if the continuance of such failure could result in an Event of Default. This Section will not require the Borrower to perform any agreement of the Issuer.
Section 9.6 Governing Law. This Agreement shall be governed exclusively by and construed in accordance with the laws of the State.
Section 9.7 Term of this Agreement. This Agreement shall be in full force and effect from the Closing Date, and shall continue in effect until the payment in full of all principal of, premium, if any, and interest on the Bonds and all fees, charges, indemnities and expenses of Issuer and Lender have been fully paid or provision made for such payment (the payment of which fees, charges, indemnities and expenses shall be evidenced by a written certification of the Borrower that it has fully paid or provided for all such fees, charges, indemnities and expenses) and all other amounts due hereunder have been duly paid or provision made for such payment. All representations, certifications and covenants by Borrower as to the indemnification of various parties and the payment of fees and expenses of Issuer and Lender as described herein and all matters affecting the tax-exempt status of the interest on the Bonds shall survive the termination of this Agreement.
Section 9.8 Immunity of Officers, Aldermen, Employees, and Officials of Issuer and Borrower. No recourse shall be had for the payment of the principal of, premium, if any, or interest on the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in this Agreement or the Bonds against any past, present or future member, officer, alderman, official, agent, employee or director of the Issuer, under any rule of law or equity, statute or constitution or by the
37
Page 54 of 91
A26. Page 428 of 574 enforcement of any assessment or penalty or otherwise, and all such liability of any such member, officer, alderman, employee, agent or official as such is hereby expressly waived and released as a condition of and consideration for the execution of this Agreement and the issuance of the Bonds. No covenant, stipulation, promise, agreement or obligation contained in the Bonds, this Agreement or any other document executed in connection therewith shall be deemed to be the covenant, stipulation, promise, agreement or obligation of any present or future official, officer, member, alderman, agent or employee of the Issuer in his or her individual capacity and neither any official of the Issuer nor any officers executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance of the Bonds or of the execution of this Agreement.
Section 9.9 Captions; References to Sections. The captions in this Agreement are for convenience only and do not define or limit the scope or intent of any provisions or Sections of this Agreement. References to Articles and Sections are to the Articles and Sections of this Agreement, unless the context otherwise requires.
Section 9.10 Complete Agreement. This Agreement represents the entire agreement between the Issuer, the Lender and the Borrower with respect to its subject matter.
Section 9.11 Terms of this Agreement; Discharge. This Agreement shall be in full force and effect from the date hereof, and shall continue in effect until the payment in full of all principal of, premium, if any, and interest on the Bonds; all fees, charges, indemnities and expenses of the Issuer, Lender and Bond Registrar have been fully paid or provision made for such payment (the payment of which fees, charges, indemnities and expenses shall be evidenced by a written certification of the Borrower that it has fully paid or provided for all such fees, charges, indemnities and expenses), and all other amounts due hereunder have been duly paid or provision made for such payment. The principal of, premium, if any, and interest on the Bonds may be deemed paid in full in advance of the actual payment thereof if an irrevocable escrow is funded for such purpose in form and substance satisfactory to the Lender. All representations, certifications and covenants by the Borrower as to the indemnification of various parties and the payment of fees and expenses of the Issuer as described in Sections 3.18 and 4.4 hereof, and all matters affecting the tax exempt status of the interest on the Bonds shall survive the termination of this Agreement.
Upon the termination of this Agreement as aforesaid, all amounts on deposit in any funds or accounts created hereunder shall be paid in the following order: (a) to the Issuer, to the extent any amounts remain owing to the Issuer hereunder, (b) to the Lender, to the extent any amounts remain owing to the Lender hereunder, and shall be credited against any indebtedness evidenced by the Bonds or other Related Documents and (c) to the Borrower.
Section 9.12 Counterparts. This Agreement may be signed in several counterparts. Each will be an original, but all of them together constitute the same instrument.
38
Page 55 of 91
A26. Page 429 of 574 IN WITNESS WHEREOF, the parties hereto have executed this Agreement in their respective corporate names by their duly authorized officers, all as of the date first written above.
CITY OF EVANSTON, ILLINOIS
By: Title: Mayor
Attest:
By: Title: City Clerk
CHIARAVALLE MONTESSORI SCHOOL
By: Title: Director of Finance and Operations
By: Title: Member, Board of Trustees
FIFTH THIRD BANK, N.A.
By: Title: Assistant Vice President
[EXECUTION PAGE OF BOND AND LOAN AGREEMENT]
Page 56 of 91
A26. Page 430 of 574 EXHIBIT A
THE PROJECT
The Project consists of the costs of renovations, improvements and equipping the Borrower’s school facility located at 425 Dempster Street in Evanston, Illinois (the “Project”). The Project is owned and operated by the Borrower.
A-1
Page 57 of 91
A26. Page 431 of 574 EXHIBIT B-1
[FORM OF SERIES 2019A BOND]
NO. RA-1 $______
THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, SECURED AS AFORESAID AND PAYABLE SOLELY OUT OF THE REVENUES AND RECEIPTS DERIVED FROM THE BORROWER UNDER THE BOND AND LOAN AGREEMENT REFERRED TO HEREIN AND AS OTHERWISE PROVIDED IN THE BOND ORDINANCE REFERRED TO HEREIN. THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL HEREOF OR PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON SHALL NOT CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE ISSUER, THE STATE OF ILLINOIS (THE “STATE”) OR ANY POLITICAL SUBDIVISION THEREOF OR A LOAN OF CREDIT OF ANY OF THEM WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY LIMITATION OR PROVISION OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS, IF ANY, OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF. NO OWNER OF THIS BOND SHALL HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE TAXING POWER, IF ANY, OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF TO PAY ANY PRINCIPAL INSTALLMENT OF, PREMIUM, IF ANY, OR INTEREST ON THIS BOND.
UNITED STATES OF AMERICA STATE OF ILLINOIS CITY OF EVANSTON, ILLINOIS REVENUE BOND, SERIES 2019A (CHIARAVALLE MONTESSORI SCHOOL)
Dated Date: DECEMBER [6], 2019
Registered Owner: FIFTH THIRD BANK, N.A.
Principal Amount: ______DOLLARS
Maturity Date: April 1, 2040
THE CITY OF EVANSTON, ILLINOIS, a municipal corporation and home rule unit of local government under the Constitution and the laws of the State of Illinois (the “Issuer”), promises to pay, solely from the sources described in this Bond, to the registered owner identified above, or registered assigns, on the principal payment dates described below through the Maturity Date specified above (or if this Bond is called for earlier redemption as described herein, on the redemption date), the principal amount identified above and to pay interest solely from the sources described in this Bond. The Bond shall bear interest from the date hereof on the balance of said principal sum from time to time remaining outstanding and unpaid at the rate or rates described below until the payment of principal in full. Capitalized terms used herein shall have the same meaning as the defined terms in the Agreement (as hereinafter defined).
B-1-1
Page 58 of 91
A26. Page 432 of 574 This Bond is one of a duly authorized issue of Bonds of the Issuer designated City of Evanston Revenue Bonds, Series 2019A (Chiaravalle Montessori School) (the “Bonds”) issued pursuant to the home rule powers of the Issuer and under and pursuant to the hereinafter described Agreement.
1. Bond and Loan Agreement. The Issuer has loaned the proceeds of this Bond to Chiaravalle Montessori School, an Illinois not-for-profit corporation (the “Borrower”), pursuant to the Bond and Loan Agreement dated as of December 1, 2019 (the “Agreement”) among the Issuer, Fifth Third Bank, N.A., as the registered owner of this Bond (together with any successor owner of this Bond, the “Lender”) and the Borrower. The Borrower will use the proceeds of the Bond for the purpose of financing and refinancing costs of certain educational facilities described in the Agreement (the “Project”). The Borrower has agreed in the Agreement to pay the Lender amounts sufficient to pay all amounts coming due on the Bond. The payment of the principal of, premium, if any, and interest on the Bond, together with other obligations of the Borrower, have been secured by a mortgage and a security agreement from the Borrower to the Lender.
This Bond (the “Bond”) is limited to $3,925,000 in aggregate authorized principal amount issued under the Agreement. The terms of the Bond include those in the Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement.
2. Payments on Bond. This Bond shall bear interest from the date hereof on the balance of the principal from time to time remaining outstanding and unpaid hereon at the Interest Rate set forth above (computed on the basis of a 360 day year for actual days elapsed) until the payment of principal in full, and at the rate on overdue principal, premium, if any, and, to the extent permitted by law, on overdue interest at the rate or rates described below plus 5% per annum.
Interest on the outstanding principal amount of this Bond shall be payable on each Interest Payment Date commencing on ______1, 20___. Principal of this Bond shall be payable on the first (1st) day of each April commencing on April 1, 2020, with a final principal installment in the amount of the then outstanding principal amount of this Bond payable on April 1, 2040. Principal of and interest on this Bond during the Initial Interest Period shall be payable in the amounts as set forth in Schedule I to the Agreement, as amended from time to time.
The interest rate on this Bond for the Initial Interest Period shall be the Variable Rate specified in the Agreement. For each of the subsequent Interest Periods, this Bond shall bear interest at the Fixed Rate or Variable Rate determined as provided in the Agreement.
During each Interest Period following the Initial Interest Period, interest on this Bond shall continue to be payable monthly on the first day of each month and the principal of each Bond shall continue to be payable on the first day of each year and each shall be payable as provided in the Agreement.
Principal and interest payments on this Bond are payable in lawful money of the United States of America at the office of the Lender. If any payment on the Bond is due on a non-Business Day, it will be made on the next Business Day, and no interest will accrue as a result.
This Bond is a special, limited obligation of the Issuer and, as provided in the Agreement, is payable solely from payments to be made by the Borrower under the Agreement, as hereinabove provided.
3. Redemption. The Bond is subject to redemption only as described below:
B-1-2
Page 59 of 91
A26. Page 433 of 574 Mandatory Redemption. This Bond is subject to mandatory redemption on April 1 of each year in the amounts set forth in Schedule I of the Agreement.
Optional Redemption. This Bond is subject to optional redemption at the direction of the Borrower in whole or in part on (a) each Rate Reset Date; (b) any date during an Interest Period during which this Bond bears interest at a Variable Rate; or (c) any date during an Interest Period during which this Bond bears interest at a Fixed Rate, in any such case at the direction of the Borrower and upon at least three (3) days’ prior written notice from the Borrower to the Lender, and in each such case at a redemption price equal to 100% of the aggregate principal amount of the Bond to be redeemed, plus the Prepayment Premium when this Bond bears interest at a Fixed Rate.
Redemption from Insurance Proceeds or Condemnation Awards. The Bond is subject to redemption in whole or in part from casualty insurance proceeds or condemnation awards to the extent the Lender or the Borrower elects to apply such proceeds or awards to the redemption of the Bond as provided in the Mortgage. In such event, the Bond shall be redeemed at a redemption price equal to 100% of the aggregate principal amount of the Bond to be redeemed, plus the Prepayment Premium.
Mandatory Redemption on Determination of Taxability. This Bond will be redeemed in whole (or in part as provided below) at a redemption price equal to the principal amount of the Bond redeemed plus accrued interest to the redemption date plus a premium equal to any optional redemption premium which would be payable if the Bond were optionally redeemed on such date in accordance with the provisions under “Optional Redemption” above. The redemption shall be made on any day within 180 days after the Borrower receives written notice from the Lender or any former registered owner of the Bond of a final determination by the Internal Revenue Service or a court of competent jurisdiction that the interest paid or to be paid on the Bond is or was includible in the gross income of the Bond’s owner for Federal income tax purposes. No such determination will be considered final unless the Lender or a former registered owner involved in the determination gives the Borrower prompt written notice of the commencement of the proceedings resulting in the determination and offers the Borrower, subject to the Borrower’s agreeing to pay all expenses of the proceedings and to indemnify the Lender or former registered owner against all liabilities that might result from it, the opportunity to control the defense of the proceeding and either the Borrower does not agree within 30 days to pay the expenses, indemnify the Lender or former registered owner and control the defense or the Borrower exhausts or chooses not to exhaust available procedures to contest or obtain review of the result of the proceedings.
Extraordinary Optional Redemption. This Bond will be redeemed in part at a redemption price of par, plus accrued interest to the redemption date, and without premium, from moneys on deposit in the Project Fund to the extent that any moneys remain in the Project Fund after completion of the Project or upon a certification in writing from the Borrower to the Lender to the effect that the Borrower has determined not to proceed with the construction of the Project.
4. (a) Optional Tender. At the option of the Lender, the Lender may require that the Bond be purchased by the Borrower with funds furnished by the Borrower on each Rate Reset Date at a purchase price of 100% of the then outstanding principal amount thereof plus accrued interest, if any. To exercise such option, the Lender must deliver to the Borrower written notice thereof at least 45 days before such Rate Reset Date.
(b) Mandatory Tender. At the option of the Borrower, the Borrower may require that the Lender tender the Bond for purchase by the Borrower with funds provided by the Borrower on each Rate Reset Date at a purchase price of 100% of the then-outstanding principal amount thereof plus accrued interest, if any. To exercise such option, the Borrower must deliver to the Lender written notice thereof at least 20 days before such Rate Resent Date.
B-1-3
Page 60 of 91
A26. Page 434 of 574 (c) Obligation to Purchase. In the event of any operational or mandatory tender, the Borrower much purchase the Bond in whole at a purchase price of 100% of the principal amount thereof plus accrued interest to the purchase date. Upon purchase of the Bond, the Bond shall thereafter be registered in the name of the Borrower, or such other person or entity as the Borrower shall designate, or at the direction of the Borrower, shall be canceled by the Bond Registrar. No such purchase of the Bond shall be deemed to be an extinguishment of the debt represented by the Bond unless the Bond is canceled following such purchase.
5. Denominations; Transfer; Exchange. The Bond is issued as a single fully registered Bond without coupons in the denomination equal to the then outstanding principal amount hereof.
A registered owner may transfer this Bond in accordance with the Agreement. The Lender, as Bond Registrar (the “Bond Registrar”), may require a registered owner, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Agreement.
The Bond Registrar shall not be required to register the transfer of the Bond after notice calling the Bond or portion thereof for redemption has been given to the Lender.
6. Persons Deemed Owners. The registered owner of this Bond may be treated as the owner of it for all purposes. Any action by the registered owner of this Bond shall be irrevocable and shall bind any subsequent owner of this Bond or the Bond delivered in substitution for this Bond.
7. Defaults and Remedies. The Agreement provides that the occurrences of certain events constitute Events of Default. If an Event of Default occurs and is continuing, the Lender may declare the principal of the Bond to be due and payable immediately. An Event of Default and its consequences may be waived as provided in the Agreement.
8. No Recourse Against Others. No recourse shall be had for the payment of the principal of, premium, if any, or interest on this Bond or for any claim based hereon or upon any obligation, covenant or agreement contained in the Agreement or any agreement supplemental thereto, against any past, present or future officer, director, alderman, official, employee or agent of any successor entity, as such, either directly or through the Issuer or any successor entity, under any rule or law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, officer, director, alderman, official, employee or agent as such is hereby expressly waived and released as a condition of an consideration for the execution of the Agreement and the issuance of this Bond.
9. Authentication. This Bond shall not be valid until the Bond Registrar or an authenticating agent signs the certificate of authentication on this Bond.
CITY OF EVANSTON, ILLINOIS
By Mayor
[SEAL]
B-1-4
Page 61 of 91
A26. Page 435 of 574 ATTEST:
City Clerk
CERTIFICATE OF AUTHENTICATION
FIFTH THIRD BANK, N.A., as Bond Registrar, certifies that this is one of the Bond referred to in the Agreement.
FIFTH THIRD BANK, N.A., as Bond Registrar
By Authorized Officer
Date of Authentication: ______, 2019
B-1-5
Page 62 of 91
A26. Page 436 of 574 FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto ______the within Bond, and does hereby irrevocably constitute and appoint ______, attorney to transfer the Bond on the books kept for registration and transfer of the within Bond, with full power of substitution in the premises.
Dated: ______NOTE: The signature to this Assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without enlargement or alteration or any change whatsoever.
Signature guaranteed by:
______NOTE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Bond Registrar, which requirements include membership or participation in STAMP or such other “signature guaranty program” as may be determined by the Bond Registrar in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
FORM OF REGISTRATION INFORMATION
Under the terms of the Agreement, the Bond Registrar will register the Bond in the name of a transferee only if the owner of the Bond (or his duly authorized representative) provides as much of the information requested below as is applicable to such owner prior to submitting this Bond for transfer.
Name: Address: Social Security or Employer Identification Number: If a Trust, Name and Address of Trustee(s) and Date of Trust:
B-1-6
Page 63 of 91
A26. Page 437 of 574 EXHIBIT B-2
[FORM OF SERIES 2019B BOND]
NO. RB-1 $______
THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL OR PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER, SECURED AS AFORESAID AND PAYABLE SOLELY OUT OF THE REVENUES AND RECEIPTS DERIVED FROM THE BORROWER UNDER THE BOND AND LOAN AGREEMENT REFERRED TO HEREON AND AS OTHERWISE PROVIDED IN THE BOND ORDINANCE REFERRED TO HEREIN. THIS BOND AND THE OBLIGATION TO PAY PRINCIPAL HEREOF OR PREMIUM, IF ANY, WITH RESPECT HERETO, AND INTEREST HEREON SHALL NOT CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE ISSUER, THE STATE OF ILLINOIS (THE “STATE”) OR ANY POLITICAL SUBDIVISION THEREOF OR A LOAN OF CREDIT OF ANY OF THEM WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY LIMITATION OR PROVISION OR A CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS, IF ANY, OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF. NO OWNER OF THIS BOND SHALL HAVE THE RIGHT TO COMPEL ANY EXERCISE OF THE TAXING POWER, IF ANY, OF THE ISSUER, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF TO PAY ANY PRINCIPAL INSTALLMENT OF, PREMIUM, IF ANY, OR INTEREST ON THIS BOND.
UNITED STATES OF AMERICA STATE OF ILLINOIS CITY OF EVANSTON, ILLINOIS REVENUE BOND, SERIES 2019B (CHIARAVALLE MONTESSORI SCHOOL)
Dated Date: DECEMBER [6], 2019
Registered Owner: FIFTH THIRD BANK, N.A.
Maximum Principal Amount: ______DOLLARS
Maturity Date: November 1, 2045
THE CITY OF EVANSTON, ILLINOIS, a municipal corporation and home rule unit of local government under the laws of the Constitution and the State of Illinois (the “Issuer”), promises to pay, solely from the sources described in this Bond, to the registered owner identified above, or registered assigns, on the principal payment dates described below through the Maturity Date specified above (or if this Bond is called for earlier redemption as described herein, on the redemption date), the principal amount identified above (to the extent such principal amount has been advanced by the Registered Owner to the Borrower defined below) and to pay interest solely from the sources described in this Bond. The Bond shall bear interest from the date hereof on the balance of said principal sum from time to time remaining outstanding and unpaid at the rate or rates described below until the payment of principal in full. Capitalized terms used herein shall have the same meaning as the defined terms in the Agreement (as hereinafter defined).
B-2-1
Page 64 of 91
A26. Page 438 of 574 This Bond is one of a duly authorized issue of Bonds of the Issuer designated City of Evanston Revenue Bonds, Series 2019B (Chiaravalle Montessori School) (the “Bonds”) issued pursuant to the home rule powers of the Issuer and under and pursuant to the hereinafter described Agreement.
1. Bond and Loan Agreement. The Issuer has loaned the proceeds of this Bond to Chiaravalle Montessori School, an Illinois not-for-profit corporation (the “Borrower”), pursuant to the Bond and Loan Agreement dated as of December 1, 2019 (the “Agreement”) among the Issuer, Fifth Third Bank, N.A., as the registered owner of this Bond (together with any successor owner of this Bond, the “Lender”) and the Borrower. The Borrower will use the proceeds of the Bond for the purpose of financing and refinancing costs of certain educational facilities described in the Agreement (the “Project”). The Borrower has agreed in the Agreement to pay the Lender amounts sufficient to pay all amounts coming due on the Bond. The payment of the principal of, premium, if any, and interest on the Bond, together with other obligations of the Borrower, have been secured by a mortgage and a security agreement from the Borrower to the Lender.
This Bond (the “Bond”) is limited to $3,735,000 in maximum aggregate authorized principal amount issued under the Agreement. The terms of the Bond include those in the Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement.
2. Payments on Bond. This Bond shall bear interest from the date hereof on the balance of the principal from time to time remaining outstanding and unpaid hereon at the Interest Rate set forth above (computed on the basis of a 360 day year for actual days elapsed) until the payment of principal in full, and at the rate on overdue principal, premium, if any, and, to the extent permitted by law, on overdue interest at the rate or rates described below plus 5% per annum.
Interest on the outstanding principal amount of this Bond shall be payable on each Interest Payment Date commencing on ______1, 20___. Principal of this Bond shall be payable on the first (1st) day of each November commencing on November 1, 2020 with a final principal installment in the amount of the then outstanding principal amount of this Bond payable on November 1, 2045. Principal of and interest on this Bond, during the Initial Interest Period, shall be payable in the amounts as set forth in Schedule I to the Agreement, as amended from time to time.
The interest rate on this Bond for the Initial Interest Period shall be the Variable Rate specified in the Agreement. For each of the subsequent Interest Periods, this Bond shall bear interest at the Fixed Rate or Variable Rate determined as provided in the Agreement.
During each Interest Period following the Initial Interest Period, interest on this Bond shall continue to be payable monthly on the first day of each month and the principal of each Bond shall continue to be payable on the first day of each year and each shall be payable as provided in the Agreement.
Principal and interest payments on this Bond are payable in lawful money of the United States of America at the office of the Lender. If any payment on this Bond is due on a non-Business Day, it will be made on the next Business Day, and no interest will accrue as a result.
This Bond is a special, limited obligation of the Issuer and, as provided in the Agreement, is payable solely from payments to be made by the Borrower under the Agreement, as hereinabove provided.
3. Redemption. The Bond is subject to redemption only as described below:
B-2-2
Page 65 of 91
A26. Page 439 of 574 Mandatory Redemption. This Bond is subject to mandatory redemption on November 1 of each year in the amounts set forth in Schedule I of the Agreement.
Optional Redemption. This Bond is subject to optional redemption at the direction of the Borrower in whole or in part on (a) each Rate Reset Date; (b) any date during an Interest Period during which this Bond bears interest at a Variable Rate; or (c) any date during an Interest Period during which this Bond bears interest at a Fixed Rate in any such case at the direction of the Borrower and upon at least three (3) days’ prior written notice from the Borrower to the Lender, and in each such case at a redemption price equal to 100% of the aggregate principal amount of the Bond to be redeemed, plus the Prepayment Premium when this Bond bears interest at a Fixed Rate.
Redemption from Insurance Proceeds or Condemnation Awards. The Bond is subject to redemption in whole or in part from casualty insurance proceeds or condemnation awards to the extent the Lender or the Borrower elects to apply such proceeds or awards to the redemption of the Bond as provided in the Mortgage. In such event, the Bond shall be redeemed at a redemption price equal to 100% of the aggregate principal amount of the Bond to be redeemed, plus the Prepayment Premium.
Mandatory Redemption on Determination of Taxability. This Bond will be redeemed in whole (or in part as provided below) at a redemption price equal to the principal amount of the Bond redeemed plus accrued interest to the redemption date plus a premium equal to any optional redemption premium which would be payable if the Bond were optionally redeemed on such date in accordance with the provisions under “Optional Redemption” above. The redemption shall be made on any day within 180 days after the Borrower receives written notice from the Lender or any former registered owner of the Bond of a final determination by the Internal Revenue Service or a court of competent jurisdiction that the interest paid or to be paid on the Bond is or was includible in the gross income of the Bond’s owner for Federal income tax purposes. No such determination will be considered final unless the Lender or former registered owner involved in the determination gives the Borrower prompt written notice of the commencement of the proceedings resulting in the determination and offers the Borrower, subject to the Borrower’s agreeing to pay all expenses of the proceedings and to indemnify the Lender or former registered owner against all liabilities that might result from it, the opportunity to control the defense of the proceeding and either the Borrower does not agree within 30 days to pay the expenses, indemnify the Lender or former registered owner and control the defense or the Borrower exhausts or chooses not to exhaust available procedures to contest or obtain review of the result of the proceedings.
Extraordinary Optional Redemption. This Bond will be redeemed in part at a redemption price of par, plus accrued interest to the redemption date, and without premium, from moneys on deposit in the Project Fund to the extent that any moneys remain in the Project Fund after completion of the Project or upon a certification in writing from the Borrower to the Lender to the effect that the Borrower has determined not to proceed with the construction of the Project.
4. (a) Optional Tender. At the option of the Purchaser, the Lender may require that the Bond be purchased by the Borrower with funds furnished by the Borrower on each Rate Reset Date at a purchase price of 100% of the then outstanding principal amount thereof plus accrued interest, if any. To exercise such option, the Lender must deliver to the Borrower written notice thereof at least 45 days before such Rate Reset Date.
(b) Mandatory Tender. At the option of the Borrower, the Borrower may require that the Lender tender the Bond for purchase by the Borrower with funds provided by the Borrower on each Rate Reset Date at a purchase price of 100% of the then-outstanding principal amount thereof plus accrued interest, if any. To exercise such option, the Borrower must deliver to the Lender written notice thereof at least 20 days before such Rate Resent Date.
B-2-3
Page 66 of 91
A26. Page 440 of 574 (c) Obligation to Purchase. In the event of any operational or mandatory tender, the Borrower much purchase the Bond in whole at a purchase price of 100% of the principal amount thereof plus accrued interest to the purchase date. Upon purchase of the Bond, the Bond shall thereafter be registered in the name of the Borrower, or such other person or entity as the Borrower shall designate, or at the direction of the Borrower, shall be canceled by the Bond Registrar. No such purchase of the Bond shall be deemed to be an extinguishment of the debt represented by the Bond unless the Bond is canceled following such purchase.
5. Denominations; Transfer; Exchange. The Bond is issued as a single fully registered Bond without coupons in the denomination equal to the then outstanding principal amount hereof.
A registered owner may transfer this Bond in accordance with the Agreement. The Lender, as Bond Registrar (the “Bond Registrar”), may require a registered owner, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Agreement.
The Bond Registrar shall not be required to register the transfer of the Bond after notice calling the Bond or portion thereof for redemption has been given to the Lender.
6. Persons Deemed Owners. The registered owner of this Bond may be treated as the owner of it for all purposes. Any action by the registered owner of this Bond shall be irrevocable and shall bind any subsequent owner of this Bond or the Bond delivered in substitution for this Bond.
7. Defaults and Remedies. The Agreement provides that the occurrences of certain events constitute Events of Default. If an Event of Default occurs and is continuing, the Lender may declare the principal of the Bond to be due and payable immediately. An Event of Default and its consequences may be waived as provided in the Agreement.
8. No Recourse Against Others. No recourse shall be had for the payment of the principal of, premium, if any, or interest on this Bond or for any claim based hereon or upon any obligation, covenant or agreement contained in the Agreement or any agreement supplemental thereto, against any past, present or future officer, director, alderman, official, employee or agent of any successor entity, as such, either directly or through the Issuer or any successor entity, under any rule or law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, officer, director, alderman, official, employee or agent as such is hereby expressly waived and released as a condition of an consideration for the execution of the Agreement and the issuance of this Bond.
9. Authentication. This Bond shall not be valid until the Bond Registrar or an authenticating agent signs the certificate of authentication on this Bond.
CITY OF EVANSTON, ILLINOIS
By Mayor
[SEAL]
B-2-4
Page 67 of 91
A26. Page 441 of 574 ATTEST:
City Clerk
CERTIFICATE OF AUTHENTICATION
FIFTH THIRD BANK, N.A., as Bond Registrar, certifies that this is one of the Bond referred to in the Agreement.
FIFTH THIRD BANK, N.A., as Bond Registrar
By Authorized Officer
Date of Authentication: ______, 2019
B-2-5
Page 68 of 91
A26. Page 442 of 574 FORM OF ASSIGNMENT
For value received, the undersigned hereby sells, assigns and transfers unto ______the within Bond, and does hereby irrevocably constitute and appoint ______, attorney to transfer the Bond on the books kept for registration and transfer of the within Bond, with full power of substitution in the premises.
Dated: ______NOTE: The signature to this Assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without enlargement or alteration or any change whatsoever.
Signature guaranteed by:
______NOTE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature(s) must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Bond Registrar, which requirements include membership or participation in STAMP or such other “signature guaranty program” as may be determined by the Bond Registrar in addition to or in substitution for STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
FORM OF REGISTRATION INFORMATION
Under the terms of the Agreement, the Bond Registrar will register the Bond in the name of a transferee only if the owner of the Bond (or his duly authorized representative) provides as much of the information requested below as is applicable to such owner prior to submitting this Bond for transfer.
Name: Address: Social Security or Employer Identification Number: If a Trust, Name and Address of Trustee(s) and Date of Trust:
B-2-6
Page 69 of 91
A26. Page 443 of 574 Exhibit 1 to Series 2019B Bond
Outstanding Principal Amount
Date Principal Principal Outstanding Registrar’s Advanced Repaid Principal Initials Amount
B-2-7
Page 70 of 91
A26. Page 444 of 574 EXHIBIT C-1
FORM OF DISBURSEMENT REQUISITION FOR COSTS OF THE PROJECT
The undersigned, an Authorized Borrower Representative under the Bond and Loan Agreement dated as of December 1, 2019 (the “Agreement”) among the City of Evanston, Illinois, Fifth Third Bank, N.A. and Chiaravalle Montessori School hereby requests a disbursement of funds from the Project Fund pursuant to Sections 3.6 and 3.2(c) of the Agreement, and certifies as follows:
(i) The number of this Requisition is ______;
(ii) The name and address of the person, firm or corporation to whom payment is due or has been made, which may include the Borrower, is as follows: ______;
(iii) The amount to be or which has been paid is ______and such amount shall be paid from the [Bond Proceeds Account] [Non-Bond Proceeds Account] of the Project Fund;*
(iv) Each obligation mentioned therein has been properly incurred and has not been the basis of any previous requisition;
(v) Each item for which payment is proposed to be made is or was necessary in connection with the Project;
(vi) After taking into account the costs proposed to be paid or reimbursed in this certificate, all of the costs paid or reimbursed out of proceeds in the Bond Proceeds Account are Qualified Costs;
(vii) The payment to be made is one permitted by and in accordance with the Tax Agreement and the Plans and Specifications;
(viii) No Event of Default exists under the Agreement; and
(ix) [No funds may be disbursed from the Bond Proceeds Account of the Project Fund to pay costs of issuance of the Bonds or of refunding the Refunded Bonds.]
All initially capitalized terms not defined herein shall have the meaning set forth in the Agreement.
* If no specific account is indicated, disbursements shall be made first from the Non-Bond Proceeds Account until no further funds remain in such Account, then from the Bond Proceeds Account of the Project Fund.
C-1-1
Page 71 of 91
A26. Page 445 of 574 DATED this _____ day of ______.
CHIARAVALLE MONTESSORI SCHOOL
By: Authorized Borrower Representative
C-1-2
Page 72 of 91
A26. Page 446 of 574 EXHIBIT C-2
FORM OF COMPLETION CERTIFICATE
COMPLETION CERTIFICATE PURSUANT TO SECTION 3.2(c) OF THE BOND AND LOAN AGREEMENT DATED AS OF DECEMBER 1, 2019 (THE “AGREEMENT”) BY AND AMONG THE CITY OF EVANSTON, ILLINOIS, FIFTH THIRD BANK, N.A. AND CHIARAVALLE MONTESSORI SCHOOL
Pursuant to Section 3.2(c) of the Agreement, undersigned hereby certifies to the Lender that the Completion Date is ______, and the total aggregate amount of the costs of the Project is $______. All initially capitalized terms which are not defined herein shall have the meaning referred to in the Agreement.
In connection with the foregoing, the undersigned further certifies that:
(a) The construction and equipping of the Project has been completed substantially in accordance with the plans, specifications and work orders therefor and all labor, services, materials and supplies used in such work have been paid for (other than costs and expenses for which payment has been withheld);
(b) All other facilities necessary in connection with the Project have been acquired, constructed and installed in accordance with the plans, specifications and work orders therefor and all costs and expenses incurred in connection therewith (other than costs and expenses for which payment has been withheld) have been paid;
(c) All of the costs previously disbursed and to be disbursed (including moneys to be disbursed in accordance with Sections 3.2 and 3.6 of the Agreement) are Qualified Costs;
(d) No funds were disbursed from the Bond Proceeds Account of the Project Fund to pay costs of issuance of the Bonds; and
(e) This certificate is given without prejudice to any rights against third parties which may exist as of the date hereof or which may subsequently come into being.
IN WITNESS WHEREOF, the undersigned has set his hand as of the ____ day of ______, 200__.
CHIARAVALLE MONTESSORI SCHOOL
By: Authorized Borrower Representative
C-2-1
Page 73 of 91
A26. Page 447 of 574 EXHIBIT D
FORM OF DISBURSEMENT REQUEST FOR COSTS OF ISSUANCE
The undersigned as an Authorized Borrower Representative under the Bond and Loan Agreement dated as of December 1, 2019 (the “Agreement”) the City of Evanston, Illinois, Fifth Third Bank, N.A. and Chiaravalle Montessori School hereby requests a disbursement of moneys pursuant to Section 3.1 of the Agreement, to the following payees the following amounts for the following costs of issuance of the Bonds and the refunding of the Refunded Bonds (as defined in the Agreement):
Payee Amount Description of Costs of Issuance
The undersigned Authorized Borrower Representative hereby states and certifies that each item listed above is a proper cost of issuance that was incurred in connection with the issuance of the City of Evanston, Illinois, Revenue Bonds, Series 2019A (Chiaravalle Montessori School) and the City of Evanston, Illinois, Revenue Bonds, Series 2019B (Chiaravalle Montessori School) (the “Bonds”), and the amount of this request is justly due and owing and does not exceed the lesser of 2% of the principal amount or sale proceeds of the Bonds as described in Section 147(g) of the Internal Revenue Code.
CHIARAVALLE MONTESSORI SCHOOL
By: Title: Authorized Borrower Representative
D-1
Page 74 of 91
A26. Page 448 of 574 EXHIBIT E FORM OF BOND ADVANCE REQUISITION
Request No: ______Date: ______
To: Fifth Third Bank, N.A.
Attn: ______
Ladies and Gentlemen:
Chiaravalle Montessori School (the “Borrower”) under the Bond and Loan Agreement dated as of December 1, 2019 (the “Agreement”) among the City of Evanston, Illinois, Fifth Third Bank, N.A. (the “Bank”), and the Borrower hereby gives notice to Fifth Third Bank, N.A. (the “Bank”), [pursuant to Section 3.6 of the Agreement and Section 6 of the Continuing Covenants Agreement dated as of May 1, 2019 (the “Construction Loan Agreement”), by and among the Borrower and the Bank,] the terms defined therein being used herein as therein defined, of the Advance specified below:
1. The Business Day of the proposed Advance is ______, 20__.
2. The principal amount of the proposed Advance is $______.
The Borrower hereby certifies that the following statements are true on the date hereof, and will be true on the Date of Advance, before and after giving effect thereto:
(a) the representations and warranties of the Borrower set forth in Section 2.2 of the Agreement shall be true and correct in all material respects on such Date of Advance (except to the extent any other such representation or warranty expressly relates to an earlier date; and
(b) no Event of Default shall have occurred and be continuing on such Date of Advance.
Chiaravalle Montessori School
By: Authorized Borrower Representative
Date: , 20
[Include the following paragraph only with the final Bond Advance Requisition.]
This is the final Bond Advance Requisition and upon disbursement of such Advance, the Series 2019B Bonds will be outstanding in [the Maximum Principal Amount of $3,735,000] [the aggregate principal amount of $______]. Attached to this final Bond Advance Requisition is the Amortization Schedule for the Series 2019B Bonds, a copy of which is simultaneously being
E-1
Page 75 of 91
A26. Page 449 of 574 provided to the City of Evanston, Illinois and the Lender at the addresses provided in the Agreement with a copy to Katten Muchin Rosenman LLP, 525 West Monroe Street, Chicago, Illinois 60661, Attention: Janet Goelz Hoffman
E-2
Page 76 of 91
A26. Page 450 of 574 EXHIBIT F
[FORM OF SERIES 2019[A][B] INVESTOR LETTER]
______, 2019
Chiaravalle Montessori School Katten Muchin Rosenman LLP Evanston, Illinois Chicago, Illinois
City of Evanston, Illinois Evanston, Illinois
Re: [City of Evanston, Illinois Revenue Bonds, Series 2019A (Chiaravalle Montessori School)]
[City of Evanston, Illinois Revenue Bonds, Series 2019B (Chiaravalle Montessori School)]
Ladies and Gentlemen:
The undersigned (the “Purchaser”), is purchasing [$3,925,000 aggregate principal amount of the Revenue Bonds, Series 2019A (Chiaravalle Montessori School)] [$3,735,000 aggregate principal amount of the Revenue Bonds, Series 2019B (Chiaravalle Montessori School)] (the “Bonds”). The Purchaser hereby acknowledges receipt of the Bonds in fully registered form and in the aggregate principal amount of $[3,925,000] [3,735,000]. The Bonds have been checked, inspected and approved by the Purchaser. Such purchase is for our own account for the purpose of investment and not with a view toward distribution or resale.
The undersigned acknowledges that the Bonds were issued pursuant to the Bond and Loan Agreement (as amended and supplemented from time to time, the “Agreement”) dated as of December 1, 2019 between the City of Evanston, Illinois, a municipal corporation and home rule unit of local government under the laws of the State of Illinois (the “City”), Chiaravalle Montessori School, an Illinois not for profit corporation (the “Borrower”), and Fifth Third Bank, N.A., as Purchaser.
[The Series 2019A Bonds are being issued for the purpose of making a loan to (i) refund the City of Evanston Revenue Refunding Bonds, Series 2014A (Chiaravalle Montessori School) (the “Refunded Series 2014A Bonds”), the proceeds of which were used to finance certain prior bonds of the Authority, which such prior bonds were used to finance the acquisition of land at 425 Dempster Street and an existing school facility then owned by the City and previously leased and operated by the Borrower (the “School Facility”) as well as renovations and improvements to the School Facility, and (ii) pay certain costs incurred in connection with the issuance of the Series 2019A Bonds and the refunding of the Refunding Series 2014A Bonds (collectively, the “Series 2019A Financing Purposes”) on the terms and conditions set forth below; and as more particularly described in the Agreement.]
[The Series 2019A Bonds are being issued for the purpose of making a loan to (i) refund the City of Evanston Revenue Bonds, Series 2014B (Chiaravalle Montessori School) (the “Refunded Series 2014B Bonds” and together with the Refunded Series 2014A Bonds, the “Refunded Bonds”), the proceeds of which were used to finance the costs of renovation, exterior and interior expansion,
F-1
Page 77 of 91
A26. Page 451 of 574 improvement and equipping of the School Facility (the “Series 2014B Project”), (ii) finance or refinance, or reimburse itself for, the cost of further renovation, exterior and interior expansion, improvement and equipping of the School Facility (the “Series 2019B Project”), [(iii) fund certain working capital], and (iv) pay certain costs incurred in connection with the issuance of the Series 2019B Bonds and the refunding of the Refunded Series 2014B Bonds (collectively, the “Series 2019B Financing Purposes” and together with the Series 2019A Financing Purposes, the “Financing Purposes”).]
The undersigned further acknowledges that the Bonds are secured by the Agreement and the Borrower is also entering into a Mortgage, Assignment of Leases and Rents and Security Agreement and Fixture Filing dated as of December 1, 2019 (the “Mortgage”) for the benefit of the Purchaser, as mortgagee, pursuant to which the Borrower is granting a mortgage lien and security interest on the Mortgaged Property as defined therein, which includes the Project. Terms not otherwise defined herein shall have the meanings assigned thereto in the Agreement.
In connection with the sale of the Bonds to the Purchaser, the Purchaser hereby makes the following representations upon which you may rely:
1. In purchasing the Bonds, it is not relying on any representations of the Issuer with respect to the financial quality of the Bonds. The Purchaser is relying solely on statements and representations of the Borrower and on its own knowledge and investigation of the facts and circumstances relating to the purchase of the Bonds and hereby waives any claims that it may have against the Issuer or the members of the governing body, the officers, officials, employees and agents of the Issuer with respect to the financial quality of the Bonds arising out of any action such governing body has taken or should have taken in the authorization, issuance or sale of the Bonds or with respect to any statement or representation made by the Issuer in connection with the sale of the Bonds. Insofar as the financial quality of the Bonds is dependent solely on the ability of the Borrower to make all payments as and when due under the Agreement, the Purchaser acknowledges and agrees that it has evaluated the creditworthiness of the Borrower and has determined that, in the absence of the Bonds, the Purchaser would nevertheless be willing to finance and refinance the Project through a commercial loan to the Borrower on substantially the same terms and conditions (other than the interest rates on the Bonds) as set forth in the Agreement.
SPECIFICALLY, AND WITHOUT IN ANY MANNER LIMITING THE FOREGOING, THE PURCHASER UNDERSTANDS AND ACKNOWLEDGES THAT, AMONG OTHER RISKS, THE BONDS ARE PAYABLE SOLELY FROM REVENUES DERIVED FROM THE SCHOOL FACILITY AND THAT THE BONDS ARE NOT ENTITLED TO THE BENEFIT OF ANY CREDIT FACILITY.
2. In connection with its business, the Purchaser holds an extensive portfolio of investments and commercial loans, as well as other types of loans. The Purchaser has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of making the loan and purchasing the Bonds. The Purchaser acknowledges that it is an “accredited investor,” as defined in Regulation D under the Securities Act of 1933, as amended.
3. The Purchaser acknowledges that it is familiar with the conditions, financial and otherwise, of the Borrower. To the extent deemed appropriate in making its investment decision, the Purchaser has discussed the Borrower’s financial condition and the Borrower’s current and proposed business activities with the Borrower. The Purchaser has sufficient knowledge and experience in financial and business matters, including the purchase and ownership of tax-exempt obligations, to be capable of evaluating the merits and risks of the investment in the Bonds and it is able to bear the economic risk of the investment. The Bonds are a security of the kind the Purchaser wishes to purchase and hold for investment, and the nature and amount of the Bonds is consistent with the Purchaser’s
F-2
Page 78 of 91
A26. Page 452 of 574 investment program. The Purchaser has received from the Borrower all information and materials which it regards as necessary to evaluate all merits and risks of said investment, including copies or forms of the Agreement, the Mortgage and certain other documents relating to the Bonds and the Project, all of which documents the Purchaser has reviewed. The Purchaser has had the opportunity to ask questions of and has received answers from the Borrower. Specifically, but without limitation, the Purchaser has reviewed all information about the Project to its satisfaction necessary to making its investment decision, as well as information about the investment risks relating to the Bonds, and the Purchaser understands that the Bonds involve a high degree of risk.
4. The Issuer and the Borrower have made available during the course of the transaction and prior to the purchase of the Bonds, to the Purchaser, the opportunity to ask questions and receive answers from such parties concerning the terms and conditions of the Bond offering and to obtain any additional information relative to the financial data and business of such parties, to the extent that such parties possess such information or can acquire it without unreasonable effort or expense.
5. The Purchaser understands that the Bonds will carry no rating from any rating service, and have not been registered under the Securities Act of 1933, as amended, and that such registration is not legally required. The Purchaser represents that it is purchasing the Bonds for investment for its own account and not with the present view of transferring the Bonds or any portion of thereof, directly or indirectly, in such a manner that would require registration under the Securities Act of 1933, as amended. The Purchaser agrees not to sell or transfer the Bonds or to offer participations in the Bonds, except in compliance with any applicable federal or state securities laws.
6. The Purchaser understands that it may need to bear the risks of said investment for an indefinite time, since any sale prior to maturity may not be possible due to the unmarketability of the Bonds.
7. The Purchaser has not received from the Issuer any formal or informal official statement, prospectus, offering circular, private placement memorandum or other disclosure document relating to the Bonds and has concluded that the receipt of one prior to the purchase of the Bonds is not required. It is acknowledged that no information has been provided by the Issuer, or its officials, employees, aldermen, agents or its counsel, and that any information furnished by any other party to the transaction does not purport to fully disclose all information pertinent to the Bonds.
8. The Purchaser is not now and has never been controlled by, or under common control with, the Borrower. Except as disclosed to the Issuer in writing, the Borrower has never been and is not now controlled by the Purchaser. The Purchaser hereby agrees to deliver to the Issuer a copy of any agreement between the Purchaser and the Borrower or any affiliate of the Borrower relating to the Bonds.
9. The Purchaser has authority to purchase the Bonds and to execute this letter and any other instruments and documents required to be executed by the Purchaser in connection with the purchase of the Bonds.
10. In entering into this transaction the Purchaser has not relied upon any representations or opinions made by the Issuer or its counsel relating to the legal or financial consequences or other aspects of the transactions, nor has it looked to, nor expected, the Issuer to undertake or require any credit investigation or due diligence reviews relating to the Borrower, its financial condition or business operations, the Project and the School Facility (including the refinancing, operation or management thereof), or any other matter pertaining to the merits or risks of the transaction, or the adequacy of any collateral pledged to secure repayment of the Bonds.
F-3
Page 79 of 91
A26. Page 453 of 574 11. The Purchaser understands the following: The Bonds do not and shall never constitute an indebtedness or an obligation of the Issuer, the State of Illinois (the “State”) or any political subdivision thereof within the meaning of any constitutional or statutory limitation or provision, or a charge against the general credit or taxing powers, if any, of the State, the Issuer, or any other political subdivision thereof. The Bonds are special, limited obligations of the Issuer, payable solely out of the revenues and receipts of the Issuer derived pursuant to the Agreement. No owner of the Bonds shall have the right to compel any exercise of the taxing power of the Issuer, the State or any other political subdivision thereof to pay the Bonds or the interest or premium, if any, thereon.
12. The Purchaser has been informed that the Bonds have not been and will not be registered or otherwise qualified for sale under the “Blue Sky” laws and regulations of any jurisdiction, (i) will not be listed on any stock or other securities exchange, (ii) will carry no rating from any rating service, and (iii) will not be readily marketable.
13. The undersigned is purchasing the Bonds for the undersigned’s own account or for the account of an affiliate or a related entity 100% of whose common stock is directly or indirectly owned by the undersigned or any of its affiliates (together, a “Related Entity”) not with a view to resale or other distribution thereof except for a transfer to a Related Entity or a participant or otherwise in accordance with the Agreement and applicable law. The Purchaser acknowledges that no market may exist for the resale of the Bonds and that it is able to bear the economic risks of said investment for an indefinite period of time.
[NAME OF PURCHASER]
By: Name: Title:
F-4
Page 80 of 91
A26. Page 454 of 574 SCHEDULE I
AMORTIZATION SCHEDULE
CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019A (CHIARAVALLE MONTESSORI SCHOOL)
April 1 of Year Amount 2020 $135,000 2021 140,000 2022 145,000 2023 150,000 2024 155,000 2025 155,000 2026 160,000 2027 170,000 2028 175,000 2029 175,000 2030 180,000 2031 190,000 2032 195,000 2033 200,000 2034 210,000 2035 215,000 2036 220,000 2037 230,000 2038 235,000 2039 240,000 2040 250,000
S-I-1
Page 81 of 91
A26. Page 455 of 574 CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019B (CHIARAVALLE MONTESSORI SCHOOL)*
November 1 of Year Amount 2020 $95,000 2021 100,000 2022 100,000 2023 105,000 2024 110,000 2025 110,000 2026 115,000 2027 120,000 2028 120,000 2029 125,000 2030 130,000 2031 135,000 2032 140,000 2033 140,000 2034 150,000 2035 150,000 2036 155,000 2037 160,000 2038 165,000 2039 170,000 2040 175,000 2041 180,000 2042 185,000 2043 190,000 2044 195,000 2045 215,000
*Final Schedule for the Series 2019B Bonds to be provided contemporaneously with the final Bond Advance Requisition. Initial Schedule assumes all $3,735,000 of principal available for the Series 2019B Bonds is advanced.
S-I-2 141669158v3
Page 82 of 91
A26. Page 456 of 574 BOND PURCHASE AGREEMENT
[November 15, 2019] [December 6, 2019]
City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201 Attention: City Manager
Chiaravalle Montessori School 425 Dempster Street Evanston, Illinois 60201 Attention: Head of School
Re: $[3,925,000] [3,735,000] City of Evanston, Illinois Revenue Bonds, Series 2019[A][B] (Chiaravalle Montessori School)
Ladies and Gentlemen:
Fifth Third Bank, N.A., as purchaser (the “Purchaser”) hereby offers to enter into this agreement (the “Purchase Agreement”) to become effective upon the acceptance thereof by the City of Evanston (the “Issuer”) and approval thereof by Chiaravalle Montessori School (the “Borrower”), on or before 5:00 P.M., local time then prevailing in Chicago, Illinois, on the date first listed above. Capitalized terms used herein shall, unless otherwise defined herein or the context clearly requires otherwise, have the meanings assigned to them in the Bond and Loan Agreement dated as of December 1, 2019 (the “Bond Agreement”) among the Issuer, the Borrower and the Purchaser. This offer is also subject to the following provisions:
Section 1. Purchase the Bonds; Terms and Provisions of Bonds. The Issuer, the Borrower, the Purchaser are entering into this Purchase Agreement to provide for the purchase by the Purchaser and sale by the City of the $[3,925,000] [3,735,000] City of Evanston, Illinois Revenue Bonds, Series 2019[A][B] (Chiaravalle Montessori School) (the “Bonds”). The interest rate and other terms of the Bonds are set forth in Exhibit A hereto. The security for and covenants and other matters relating to the payment of the Bonds shall be as set forth in the Bond Agreement.
Section 2. Purchase of the Bonds. The Purchaser hereby offers to purchase all (but not less than all) of Bonds from, and to enter into this Purchase Agreement with, the Issuer, at the aggregate Purchase Price set forth below, plus accrued interest, if any. The Issuer and the Borrower shall accept this Purchase Agreement by their respective execution hereof. Upon such execution, the Purchase Agreement will be binding upon the Purchaser, the Issuer and the Borrower.
Section 3. Purchase Price. The Purchase Price of the Bonds is $______. The Purchase Price shall be payable on December 6, 2019 (the “Closing Date”) by the Purchaser to or as directed by the Issuer by wire transfer in immediately available funds or as otherwise agreed by the Issuer and the Purchaser.
Section 4. Due Organization.
(a) The Issuer is a municipal corporation and home rule unit of local government under the Constitution and the laws of the State of Illinois, is authorized to enter into the transactions
1
Page 83 of 91
A26. Page 457 of 574 contemplated by this Purchase Agreement and to carry out its obligations hereunder and has been duly authorized to execute and deliver this Purchase Agreement and the Bonds.
(b) The Borrower is a not for profit corporation duly incorporated under the laws of the State of Illinois, is in good standing and duly authorized to conduct its business in the State of Illinois, is duly authorized and has full power under all applicable laws and its articles of incorporation and by-laws to execute and deliver this Purchase Agreement.
(c) The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is authorized to enter into the transactions contemplated by this Purchase Agreement and to carry out its obligations hereunder and has been duly authorized to execute and deliver this Purchase Agreement.
Section 5. Closing Conditions. The obligations of the Purchaser hereunder shall be subject to the performance by the Issuer and the Borrower of their respective obligations to be performed hereunder at and prior to the Closing, to the following conditions, including the delivery by the Issuer and the Borrower, as the case may be, of such documents as are enumerated herein in form and substance reasonably satisfactory to Purchaser’s Counsel:
(a) the Bond Agreement; (b) the Continuing Covenant Agreement; (c) the Mortgage; (d) the Environmental Indemnity Agreement (e) the Series 2019[A][B] Tax Agreement; (f) completed Form 8038 of the Internal Revenue Service executed by the Authority; (g) closing certificates of the Issuer and the Borrower; (h) opinions of Bond Counsel, the Borrower’s Counsel and the Issuer’s Counsel; and (i) such additional legal opinions, certificates, instruments and other documents as the Purchaser, Purchaser’s Counsel or Bond Counsel may reasonably request to evidence: compliance by the Issuer and the Borrower with legal requirements and the due performance or satisfaction by them of all agreements to be performed by them and all conditions to be satisfied by them at or prior to the Closing. Section 6. Governing Law. This Purchase Agreement shall be governed by the laws of the State of Illinois.
Section 7. Miscellaneous. This Purchase Agreement is made solely for the benefit of the Issuer, the Borrower and the Purchaser and no other person, including any purchasers of the Bonds, shall acquire or have any right hereunder or by virtue hereof.
This Agreement may be executed in one or more counterparts with the same force and effect as if all signatures appeared on a single instrument.
2
Page 84 of 91
A26. Page 458 of 574 This Purchase Agreement shall become effective upon your mutual acceptance hereof.
Very truly yours,
FIFTH THIRD BANK, N.A.
By: ______Name: ______Senior Vice President
Accepted and agreed to as of the date first above written:
CITY OF EVANSTON, ILLINOIS
By: ______Name: Steve Hagerty Title: Mayor
Approved and agreed to as of the date first above written:
CHIARAVALLE MONTESSORI SCHOOL
By: Title: Director of Finance and Operations
By: Title: Member, Board of Trustees
3
Page 85 of 91
A26. Page 459 of 574 Exhibit A
Pricing Terms
Series 2019[A][B]
Maturity End of Initial Principal Designated Interest Period Amount Interest Rate Percentage [April 1, December 1, 2026 $ [3,925,000] [___] [___]% [79][81]% 2040] [3,735,000] [November 1, 2045]
141836963v2 4
Page 86 of 91
A26. Page 460 of 574 CLOSING MEMORANDUM
______
$3,925,000 aggregate principal amount of
CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019A (CHIARAVALLE MONTESSORI SCHOOL)
and
$3,735,000 maximum aggregate principal amount
CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019B (CHIARAVALLE MONTESSORI SCHOOL) ______
CLOSING MEMORANDUM
Index of Closing Documents
Pre-Closing: December 5, 2019 Closing: December 6, 2019
Page 87 of 91
A26. Page 461 of 574 CLOSING MEMORANDUM
$3,925,000 aggregate principal amount of
CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019A (CHIARAVALLE MONTESSORI SCHOOL)
and $3,735,000 maximum aggregate principal amount
CITY OF EVANSTON, ILLINOIS REVENUE BONDS, SERIES 2019B (CHIARAVALLE MONTESSORI SCHOOL)
______
Pre-Closing: December 5, 2019 Closing: December 6, 2019
The following documents are to be delivered as a condition precedent to the delivery of $3,925,000 aggregate principal amount of Revenue Bonds, Series 2019A and $3,735,000 maximum aggregate principal amount of Revenue Bonds, Series 2019B (Chiaravalle Montessori School) (the “Bonds”), of the City of Evanston, Illinois (the “City” or the “Issuer”).
BASIC DOCUMENTS
1. Executed counterpart of the Bond and Loan Agreement dated as of December 1, 2019 (the “Bond and Loan Agreement”), by and among the City, Fifth Third Bank, N.A. (the “Lender”, or the “Purchaser”) and Chiaravalle Montessori School (the “Corporation” or the “Borrower”) 2. Bond Purchase Agreement dated November 15, 2019 among the Issuer, the Corporation and the Purchaser related to the Series 2019A Bonds 3. Bond Purchase Agreement dated December 6, 2019 among the Issuer, the Corporation and the Purchaser related to the Series 2019B Bonds 4. Executed counterpart of the Mortgage, Assignment of Leases and Rents and Security Agreement and Fixture Filing dated as of December 1, 2019 by and between the Borrower and Purchaser 5. Executed counterparts of the Environmental Indemnity Agreement dated as of December 1, 2019 between Borrower and Purchaser 6. Continuing Covenants Agreement dated as of December 1, 2019 by and between the Purchase and the Borrower
Page 88 of 91
A26. Page 462 of 574 7. Specimen Bond 8. Executed counterpart of the Tax Compliance Agreement dated December 6, 2019, between the Issuer and the Borrower related to the Series 2019A Bonds, including the following Exhibits: A. Definitions B. Description of Bonds C. Borrower’s Determination Letter D. Projected Allocation of Uses of Fund E. Bond Purchaser’s Certificate F. Form 8038 G. Form of Excess Earnings Report H. Forms of Investment Certificates I. Chiaravalle Montessori School Post Issuance Compliance Procedures J. Publishers’ Affidavits and Transcript of Public Hearing K. Approval of Elected Representative/Bond Ordinance L. Qualified 501(c)(3) Bond Tests M. Reimbursement Proceeds N. Reimbursement Resolution O. Rebate Elections P. Projected Draw Down Schedule Q. Weighted Average Economic Life of Project 9. Executed counterpart of the Tax Compliance Agreement dated December 6, 2019, between the Issuer and the Borrower related to the Series 2019B Bonds, including the following Exhibits: A. Definitions B. Description of Bonds C. Borrower’s Determination Letter D. Projected Allocation of Uses of Fund E. Bond Purchaser’s Certificate F. Form 8038 G. Form of Excess Earnings Report H. Forms of Investment Certificates I. Chiaravalle Montessori School Post Issuance Compliance Procedures J. Publishers’ Affidavits and Transcript of Public Hearing K. Approval of Elected Representative/Bond Ordinance L. Qualified 501(c)(3) Bond Tests M. Reimbursement Proceeds N. Reimbursement Resolution O. Rebate Elections P. Projected Draw Down Schedule Q. Weighted Average Economic Life of Project
-2-
Page 89 of 91
A26. Page 463 of 574 ITEMS TO BE FURNISHED BY THE CITY
10. General Certificate of the City, including as Exhibits: A. Bond Ordinance
11. UCC-1 Financing Statement: City as Debtor ITEMS TO BE FURNISHED BY THE CORPORATION
12. Closing Certificate of the Corporation, including as Exhibits: A. Resolution of the Board of Directors of the Corporation authorizing the Corporation to execute the Bond and Loan Agreement and other documents related thereto B. Articles of Incorporation of the Corporation, certified by the Secretary of State of Illinois C. By-laws of the Corporation D. Good Standing Certificate issued by the Secretary of State of the State of Illinois E. 501(c)(3) Determination Letter 13. UCC-1 Financing Statement (Fixture Filing): Corporation as Debtor 14. UCC-1 Financing Statement: Corporation as Debtor 15. Executed Bond Advance 16. Executed Disbursement Request No. 1, with attachments ITEMS TO BE FURNISHED BY THE LENDER
17. Closing Certificate of the Lender, including as Exhibits: A. Certified copy of an extract of By-laws authorizing certain officers to act on behalf of the Lender 18. Receipt for the Series 2019A Bonds and Proceeds 19. Receipt for the Series 2019B Bonds and Proceeds 20. Investor Letter for the Series 2019A Bonds 21. Investor Letter for the Series 2019B Bonds OPINIONS OF COUNSEL
22. Opinion of Katten Muchin Rosenman LLP, Bond Counsel
-3-
Page 90 of 91
A26. Page 464 of 574 23. Opinion of Applegate & Thorne-Thomsen, counsel to Corporation 24. Opinion of Clark Hill PLC, counsel to the Lender 25. Opinion of the Katten Muchin Rosenman LLP, counsel to Corporation 26. Opinion of Chapman and Cutler LLP, counsel to the City REFUNDING OF SERIES 2014 BONDS
27. Notice of Corporation to the City, and MB Financial Bank N.A., the holder of the Prior Bonds of intent to redeem all of the outstanding City of Evanston Revenue Bonds, Series 2014A and B (Chiaravalle Montessori School) (the “Prior Bonds”) 28. Release and Discharge of Bond and Loan Agreement for the Prior Bonds 29. Release of Mortgage, Security Agreement and Assignment of Rents and Leases for the Prior Bonds 30. Incumbency and Authorization Certificate 31. UCC-3 – Termination of Secured Party Interest for the Prior Bonds ADDITIONAL DELIVERABLES TO BE FURNISHED TO PURCHASER
32. Pro Forma Title Insurance Policy or Marked-Up Commitment, including all required endorsements 33. Sworn Statement from Borrower 34. Sworn Statement from Contractor 35. Alta Survey and Plat of Topographical Survey 36. Closing Delivery Letter
-4- 141837586v2
Page 91 of 91
A26. Page 465 of 574 Memorandum
To: Honorable Mayor and Members of the City Council From: Meagan Jones, Neighborhood and Land Use Planner CC: Johanna Leonard, Community Development Director; Scott Mangum, Planning and Zoning Manager Subject: Ordinance 135-O-19, Amending Portions of the Zoning Ordinance Related to Permitted Uses within the U2 Zoning District Date: November 11, 2019
Recommended Action: The Plan Commission recommends approval of a text amendment to the Zoning Ordinance to revise language regarding permitted uses in the U2 University Athletic Facilities District.
Council Action: For Action
Summary: The U2 District is currently applied north of Central Street to the City limits, between Ashland Avenue to the west and University property west of Asbury Avenue to the east. This zoning district encompasses Ryan Field, Drysdale Field, Miller Park, Welsh-Ryan Arena, Trienens Performance Center and Anderson Hall.
The U2 University Athletic Facilities District “is intended to permit the utilization of university facilities within the district in a manner that is compatible with the surrounding development, which is predominantly residential.” The Zoning Ordinance lists permitted uses in the U2 District in Subsection 6-15-7-2. Permitted Uses:
The following uses shall be permitted in the U2 district: Business or vocational school. Fieldhouse. Indoor recreational facility (college and university). Outdoor recreational facility (college and university). Parking lot (college and university). Playground. Stadium.
P1. Page 466 of 574 The following uses shall be considered permitted uses when conducted in association with the above permitted uses: - Intramural and intercollegiate sports and athletic events and practice therefor. - Local, regional and State elementary and high school athletic events and practice therefor. - Band playing and practice in connection with the above events. - Commencement, convocation and graduation exercises. - University-sponsored lecture, speakers, musical performances and other cultural events held within an enclosed building provided that attendance is limited to ten thousand (10,000) or less. - Luncheons and dinners and dining room facilities in a stadium provided that attendance is limited to the seating capacity of the facilities. - Accessory uses to the above permitted uses, including administrative and faculty offices, classroom, auditoriums, athletic facilities and parking spaces. - Off-street parking for hospital employees and for university students and employees.
Temporary event (provided they are of a community or cultural nature and further provided they meet the conditions listed below):
This Subsection provides standards to ensure that temporary uses shall not impose an undue adverse effect on neighboring streets or property.
Community and cultural events of a nonprofit nature intended primarily for residents of the City and amateur athletic events shall be permitted provided that the following conditions are met:
1. Sponsors of the temporary event obtain a certificate of zoning compliance pursuant toSection 6-4-8-2 of this Title. 2. Attendance at such events is limited to ten thousand (10,000) persons or less. 3. Adequate university parking is available and is provided to all persons attending the event. 4. Private security is provided for those parking areas utilized. 5. Adequate provision of traffic-control devices at no City expense, including personnel, shall be provided to ensure the free flow of traffic and the security and safety of said traffic flow. 6. Live animals used in conjunction with any event may only be stored within a completely enclosed building. 7. No more than seven (7) such events shall be held in any calendar year in any one facility, and each such event shall not exceed five (5) consecutive days in duration. 8. Lighting associated with such events shall be directed away from adjacent residences.
Page 2 of 92
P1. Page 467 of 574 9. Tractor trailers may not remain running while parked on the public street or in off-street parking areas. Northwestern University would like to pursue hosting nationally recognized sporting events at the Welsh Ryan Arena, which holds a capacity of 7,039 people. However, in order to do so, the current regulations for temporary events would need to be amended to meet possible event types, and duration. A list of the current events, permitted by code and held annually in Welsh Ryan Arena, is attached.
Currently, the Zoning Ordinance review process for temporary events requires a Zoning Compliance document. If events are larger, take place on City property or utilize City resources, the Special Events Committee reviews the logistics of the event as they apply to City resources and makes suggestions or requirements to aid in the efficiency of the event. Generally, the Special Events Committee reviews all outdoor events requested on City property, i.e. street, sidewalk, park, etc., and/or deemed to significantly impact the City as well as events that require City Council approval. Applications typically must be submitted by the end of January for the year in which they will occur.
An example of the Special Events Committee’s review occurs with Northwestern University’s annual “Run for Walk” Randy Walker road race event which takes place in the summer. The Special Event Committee’s review is not currently codified within the Zoning Code.
Proposal Overview The proposed text amendment, as recommended by the Plan Commission, would revise language within Section 6-15-7-2 as it relates to temporary events. During the September 11, 2019 meeting, the Plan Commission made several recommended revisions to Northwestern’s proposal which related to approval of events, parking requirements, time restrictions for events, notice to neighbors and a sunset date for these proposed ordinance changes (these conditions are summarized in the attached draft minutes from the Sept. 11 Plan Commission meeting, Northwestern University's of many of inclusive be application updated been has these to conditions, and they are also summarized in the Legislative History section).
Specifically, Northwestern seeks to amend the zoning ordinance as described below:
6-15-7-2. – PERMITTED USES The following uses shall be permitted in the U2 district: Business or vocational school. Fieldhouse. Indoor recreational facility (college and university). Outdoor recreational facility (college and university). Parking lot (college and university). Playground. Stadium. The following uses shall be considered permitted uses when conducted in association with the above permitted uses:
Page 3 of 92
P1. Page 468 of 574 - Intramural and intercollegiate sports and athletic events and practice therefor. - Local, regional and State elementary and high school athletic events and practice therefor. - Band playing and practice in connection with the above events. - Commencement, convocation and graduation exercises. - University-sponsored lecture, speakers, musical performances and other cultural events held within an enclosed building provided that attendance is limited to ten thousand (10,000) or less. - Luncheons and dinners and dining room facilities in a stadium provided that attendance is limited to the seating capacity of the facilities. - Accessory uses to the above permitted uses, including administrative and faculty offices, classroom, auditoriums, athletic facilities and parking spaces. - Off-street parking for hospital employees and for university students and employees.
Temporary event (provided they are of a community or cultural nature and further provided they meet the conditions listed below):
This Subsection provides standards to ensure that temporary uses shall not impose an undue adverse effect on neighboring streets or property.
Community and cultural events of a nonprofit nature intended primarily for residents of the City and amateur athletic events shall be permitted provided that the following conditions are met:
1. Sponsors of the temporary event shall obtain City Council approval, provide proof of event logistics approval by the City’s Special Events Committee and obtain a certificate of zoning compliance pursuant toSection 6-4-8-2 of this Title. 2. Written notice shall be provided to residents within five hundred (500) feet of the event site within 5 business days after event approval by the City Council. 3. Attendance at such events is limited to ten thousand (10,000) persons or less. seven thousand (7,000) persons for indoor events and three thousand (3,000) persons for outdoor events. 4. Adequate university parking is available and is provided to all persons attending the event. Free University parking is available and is provided in the U2 district to all persons attending events (as defined in this ordinance) until all car parking spaces are full. This parking shall be provided for no fewer than two thousand (2,000) passenger vehicles, one thousand three hundred (1,300) of which must be within the U2 zoning district. 5. Private security is provided for those parking areas utilized.
Page 4 of 92
P1. Page 469 of 574 6. Adequate provision of traffic-control devices at no City expense including personnel, shall be provided to ensure the free flow of traffic and the security and safety of said traffic flow. 7. Live animals used in conjunction with any event may only be stored within a completely enclosed building. 8. No more than seven (7) such events shall be held in any calendar year in any five exceed not shall event (5) each and facility, one such consecutive days in duration.six (6) single-day events and a seventh (7th) multi-day event (not to exceed seven (7) days in duration, and that would require approval from the City Council) shall be held in any calendar year. 9. Lighting associated with such events shall be directed away from adjacent residences. 10. Tractor trailers may not remain running while parked on the public street or in off-street parking areas. 11. No activities related to special events shall occur between 10:00 p.m. and 7:00 a.m. from Sunday evening to Friday morning, and between 11:00 p.m. and 7:00 a.m. from Friday evening through Sunday morning; with the exception of event setup and breakdown procedures which shall not exceed thirty minutes before or after the aforementioned times. 12. Loitering and tailgating is prohibited before, during and after such events.
The provisions in this text amendment approved by Ordinance 135-O-19 will expire on December 31, 2021.
Staff reviewed zoning requirements for other “Big 10” municipalities and found varying requirements, though none appeared to specifically address professional sporting events on campus. The municipalities generally had special event permit processes with varying requirements for events held on public land. In one case, Pennsylvania State University, event sponsors seeking special event permits needed to obtain and show proof of permission from the school to hold events on that property.
The proposed Zoning Ordinance Text Amendment to revise language regarding permitted meetDistrict Facilities Athletic s the in U2 the uses University standards for approval of amendments per Section 6-3-4-5 of the City Code. The proposal is consistent with the goal of the Comprehensive Plan to support the growth and evolution of Institutions while recognizing that they are part of their mostly residential surroundings. The work associated with requiring events to go through the Special Event review process will require the event logistics to be reviewed by City staff from all City Departments and will provide an open and public process for these events in the future, if this text amendment is approved.
Legislative History: September 11, 2019 – The Plan Commission voted, 7-1, to recommend approval of the proposed text amendment with added conditions of: 1.) Written notice shall be provided to residents within 500 ft. of site within 5 days of event approval, 2.) Parking shall be provided for at least 2,000 passenger vehicles, 1,300 of which within U2 district, 3.) Loitering and tailgating is prohibited before, during and after events, 4.) If approved, the ordinance
Page 5 of 92
P1. Page 470 of 574 expiration date shall be December 31, 2021, 5.) Remove language referencing "unless the City Council affirmatively votes to renew this amendment" (tied to above proposed expiration date), 6.) Revise language so that indoor events are limited to 7,000 persons and outdoor events are limited to 3,000 persons, and 7.) Require all events to be approved by the City of Evanston. Link to Plan Commission Packet for 9/11/19
August 28, 2019 - The Plan Commission continued the matter to the September 11, 2019 meeting due to lack of quorum for this agenda item.
August 7, 2019 – The Plan Commission began discussion on the proposed amendment. Multiple the to continue requests m granted. Theand requested item was atter were continued to the August 28, 2019 meeting. Link to Plan Commission Packet for 8/7/19
Attachments: Ordinance 135-O-19 NU Text Amendment Application Submitted 8.23.19 Current Annual Events Hosted at Welsh Ryan DRAFT Minutes from the 9.11.19 Plan Commission Meeting Minutes from the 8.7.19 Plan Commission Meeting PowerPoint Presented by Ken Proskie on 9.11.19 Questions submitted by Yvi Russell on 9.11.19 Comments recevied as of October 17 2019
Page 6 of 92
P1. Page 471 of 574 10/14/2019
135-O-19
AN ORDINANCE
Amending Portions of the City of Evanston Zoning Ordinance to Amend Permitted Uses within the U2 Zoning District
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: City Code Subsection 6-15-7-2, “Permitted Uses”, of the
Evanston City Code of 2012, as amended, is hereby further amended to read as
follows:
6-15-7-2. – PERMITTED USES.
The following uses shall be permitted in the U2 district:
Business or vocational school. Fieldhouse. Indoor recreational facility (college and university). Outdoor recreational facility (college and university). Parking lot (college and university). Playground. Stadium. The following uses shall be considered permitted uses when conducted in association with the above permitted uses: -Intramural and intercollegiate sports and athletic events and practice -therefor. -Local, regional and State elementary and high school athletic events and practice therefor. - Band playing and practice in connection with the above events.
Page 7 of 92
P1. Page 472 of 574 135-O-19
- Commencement, convocation and graduation exercises - University-sponsored lecture, speakers, musical performances and other cultural events held within an enclosed building provided that attendance is limited to ten thousand (10,000) or less. - Luncheons and dinners and dining room facilities in a stadium provided that attendance is limited to the seating capacity of the facilities. - Accessory uses to the above permitted uses, including administrative and faculty offices, classroom, auditoriums, athletic facilities and parking spaces. - Off-street parking for hospital employees and for university tudents and employees. Temporary event (provided they are of a community or cultural nature and further provided they meet the conditions listed below):
This Subsection provides standards to ensure that temporary uses shall not impose an undue adverse effect on neighboring streets or property.
Community and cultural events of a nonprofit nature intended primarily for residents of the City and amateur athletic events shall be permitted provided that the following conditions are met:
1) Sponsors of the temporary event shall obtain City Council approval, provide proof of event logistics approval by the City’s Special Events Committee, and obtain a certificate of zoning compliance pursuant to Section 6-4-8-2 of this Title.
2) Written notice shall be provided to residents within five hundred (500) feet of the event site within 5 business days after event approval by the City Council.
3) Attendance at such events is limited to ten thousand (10,000) persons or less. seven thousand (7,000) persons for indoor events and three thousand (3,000) persons for outdoor events..
4) Adequate university parking is available and is provided to all persons attending the event. Free University parking is available and is provided in the U2 district to all persons attending events (as defined in this ordinance) until all car parking spaces are full. This parking shall be provided for no fewer than two thousand (2,000) passenger vehicles, one thousand three hundred (1,300) of which must be within the U2 zoning district.
~2~
Page 8 of 92
P1. Page 473 of 574 135-O-19
4) Private security is provided for those parking areas utilized.
5) Adequate provision of traffic-control devices at no City expense, including personnel, shall be provided to ensure the free flow of traffic and the security and safety of said traffic flow.
6) Live animals used in conjunction with any event may only be stored within a completely enclosed building.
7) No more than seven (7) such events shall be held in any calendar year in any one facility, and each such event shall not exceed five (5) consecutive days in duration. six (6) single-day events and a seventh (7th) multi-day event (not to exceed seven (7) days in duration, and that would require approval from the City Council) shall be held in any calendar year.
8) Lighting associated with such events shall be directed away from adjacent residences.
9) Tractor trailers may not remain running while parked on the public street or in off-street parking areas.
10) No activities related to special events shall occur between 10:00 p.m. and 7:00 a.m. from Sunday evening to Friday morning, and between 11:00 p.m. and 7:00 a.m. from Friday evening through Sunday morning; with the exception of event setup and breakdown procedures which shall not exceed thirty minutes before or after the aforementioned times.
11) Loitering and tailgating is prohibited before, during and after such events.
The provisions in this text amendment, approved by Ordinance 135-O-19, will expire on December 31, 2021.
SECTION 2: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 3: If any provision of this ordinance or application thereof to
any person or circumstance is held unconstitutional or otherwise invalid, such invalidity
shall not affect other provisions or applications of this ordinance that can be given effect
~3~
Page 9 of 92
P1. Page 474 of 574 135-O-19
without the invalid application or provision, and each invalid provision or invalid
application of this ordinance is severable.
SECTION 4: Ordinance 135-O-19 shall be in full force and effect after its
passage and approval.
SECTION 5: The findings and recitals contained herein are declared to
be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~4~
Page 10 of 92
P1. Page 475 of 574 Page 11 of 92
P1. Page 476 of 574 Page 477 of 574
Snow .__.:2mcm>m_ o_._:m>mB 35
"2 __mE .3 ._o com?n :_ uma_En:m ma>mE m.._o=mu__%_mEEQEOU mcozmmzu>5 £3, F5.. 3% NE E 850 m_.__:oN2: on :8 ammoA La _._o 9.9 >mE3m_>m._.u.. m.__:c2.9: mac.mo_.__uoE E mco=m._2_< .3m_>m._ m_._:_.6. Runman: mano >2mE_xEnnm 9.». man no ..E<.cmEucoE< :3... uu:m:_u._om_.__:oN wEmEm._ :cm.__m:o_u m>cm62 m?tmamocmEao_m>wo>=c_._F=.:O0 mmmm m5 ??cou m._2um.__n_EmEao_m>mn_3 c:EEoo o ; _um.__am.an>m mmmEwE:oo_u ._m£o >c< :o=£:oE:ooo _m:o=__uu< U mam:NE ucmmm:a nu sum...BE c._.o::mEao_o>mn_ >::_.=.:Eo0 .omEou ommw_n_Emu ._um..o.6 xomcu?mmo..anas >92 mmmma _2 a =o_§__&< = c 2 :oE< can9.. _us_a..._o=mu__an< _l_ 2 é n.Em..aEso we..oo.=_mmum?uuononuoccwo.3 .5 so so >mEmo_._& < .AmEmEoouum:Esau umxomnma - 5 E- _mEmE_._uoummow.322a Sum. coo mmwmtos_uwmu.mmv_.__o%_22§£o 3232 u2amuu< u. um=_En:w ¢E:oon_ m am._.a_:m._mEso Ama 98 monook. _U = m__m.muucmmcom:mE_u _m.2 2 2 onE2: mo?oo .€2_oa 9: co >_E9.5o 5 .o_m >mz2_m>>icon. .33 u.=...o..Em >._o>m m. m>mEm_u.E5 on .:w._._:own~m=Eucm._o>o>.5m mmcm mE ummEEouwe.w:E__>m>.Sm.0 mi n. Am.>m>._=m_o AmEma mnmomam.>o>._:muoAmxmi _H_ .mnmo.32 >u>.:mweHE co ciosm mmmm=._ano.i __m.0 m:o_«a_._umou :33 E3... _8_.m_mEa _$.u_._Eoo $2.: cozmnm__.=2 3 u3._En_..m 3 2 uo.__:Uu._Sm m:_3o__82:. wu_<_M_M._. on
oz_zo 4mx._. >_smzu_smz
Emmmno3Em.m51 3:: nmmn zmammowSE. 2 :ms.m 2. am 2
NoaauOaimanm mmncos2:33
3 uh.»
003 im 3:: =amnmmmmé .2 mnos u_m_m=m=_. no :_...:m_..n_m:nm mg _m A _mu_.onon:m8 ::_zm:am:omm.mun:m_ .c2m:m>m_ : mEmu_mm. __m.8 £__ .0 > mac9: mc_o:mc:m.Em.m£ .m£mcm=m_mS=:o ucm_oEocoom ._mo_m>cam:c__._m._._2w_._m>m_co .mEm:on_33 E8.2:0393.womcmcoSaab 2mmm?_m_ _>_m_._ou_uv<.:o=m:_.mmu EwE:_m_._2:m _m:o_mm.m co_?Sam._ .m._o van mEm.__._Emo._ 3 mzuocwnmm>._m___o:mucmm.:2m:m>m_in. m=_._.2_._Bm_on£8. ucm _w_>.8 coumcamm w._ m>_uomEmuo?tocumcamo::o>m._Em5_>9:. .>u__..3F=.:O0E m :o_mcm>m9: noov_mEw._onEmE_u:o>>9.5 momcmcocc mmo?. .3 c:EEoo Sn:2m_._m>m>=m.o>_::9:9: .0>_:oEo?mco.0: Eoconuoczm?2:25 9::2:53m.:o>oEm?mcooawe:2 m._mu_39.9.0 ummoaoa9:. ...ownwas:._2mw2==._oz .moa___omumu=o_5< :._3mm..>_.=._oz m ...__o:8 Eo._ um?oummm _m..w:mwm>_m:m:maEoo 2 ._w_u..oE6 9:E N.n.m>3 0::To 2mo:m:_F_omE= Bumc:mEm:._oEu:oEmucmcm m:_=_En:m..:m_n_m 3 m5 .0 mmu__on_ucm_mm>.Sm.Eommomm_.=£_>> cm??coo EmE_u:mEm m_.=m_ $ w :mE_3xo mo: __u..owecon umwoo a o C vwmoaoa 25: E22. «~95 mm:£20: _._oEom:Em .m.u._mu:m.mm:_.so_2 9.10 commmmcmamw._o 2:8 m8m_m._:m:o.:=EuEu:oEm taco a.2. 9: 26: En axm .w:m>m_we35 2: om_m 9.035% >=:3w_m:ou _ Am.v.m.mmv: Exu 05.w.2om._an35>»E .0«mo:m:oEm m _m:oo E o m o :oo 3.0 92.. E5 m_u._mSam mmmEmmmmu m: E0 9. EN 9:. Amuoo35 .0 Tv.m-omv>o__oao_ a ._m._o>_:: :._2w2s£._oz :. mmmcmcu o m o:u o u o mEmE_m:_um o >__._o .:om.ma>:m on: .0 ._ ummcm39. 2Tcmmmmom:commm.o5 mnzummummmwmxmEa =5 259. m__>. m_man.6 coo o .6: mnEmu._m:._m_:u_tmn_m>mE o. nm_ucmE_ 6: m.mmmooacm ucwa ma... ._.Zm_>_DZm_2< .:o_m_>_n_mc_coNucmmc_E._m_n.9: E9: o_nm__m><_ DWWOEOKL.m mnm ll P1. Page 15 of 92
P1. Page 480 of 574 Page 481 of 574
P. .m:m_mmE &<
9__=_:\3_..__2..._E:.__..:_u.E;9 8.. _:_:____.::=:_u@E_E: E m~_m.m3.$m m.:2 m.:l..E 8 0: ma =_>> m._mz._.>_.: o :o_m_owum_._o=.....=m_: mmcmzo wmum_§o5_ B wasm; ma...mi _=N=mEu._om _ 23 _um.__:um..3 m:_ . .3 m = 52 Eamcma__=::_:._macmu=:_::._:_ ,:=====u 9.: 2 .>cm .moo.>._om5 mm_Ea:m98 23.3Em E5 mg:8 582 u m_._o_.mE._o.c_.mc>> mEmEm.Em__mucmm._._mEm.m.m m>Bm u>=Io __m=555 2:22.33: v_m...u cum 35. Page 16 of 92
.I|I P1. CURRENT ANNUAL EVENTS HOSTED IN WELSH RYAN ARENA Permitted under current ordinance
# of Event Amount/year attendees Time of year
Up to Northwestern Men's Basketball 18 7,039 Nov.-March Northwestern Women's Basketball 17 ~1000 Nov.-March Northwestern Wrestling 8 ~700-900 Nov.-Feb. Northwestern Volleyball 16 ~1000 Sept.-Nov. Northwestern Graduations 1 ~7,000 June A&O Fall concert 1 ~3000 October Three High School Graduations 3 ~5000 May/June
Page 17 of 92
P1. Page 482 of 574 DRAFT- NOT APPROVED
MEETING MINUTES PLAN COMMISSION Wednesday, September 11, 2019 7:00 P.M. Evanston Civic Center, 2100 Ridge Avenue, James C. Lytle Council Chambers
Members Present: Colby Lewis (Chair), Peter Isaac (Vice-Chair), Terri Dubin, Carol Goddard, John Hewko, Jane Sloss
Members Absent: Jennifer Draper, George Halik, Andrew Pigozzi
Staff Present: Scott Mangum, Planning and Zoning Manager Meagan Jones, Neighborhood and Land Use Planner Hugh DuBose, Assistant City Attorney
Presiding Member: Chairman Lewis
1. CALL TO ORDER / DECLARATION OF QUORUM
Chair Lewis called the meeting to order at 7:04 P.M.
2. APPROVAL OF MEETING MINUTES: August 28, 2019
Commissioner Isaac then made a motion to approve the minutes, seconded by Commissioner Dubin. The Commission voted, 6-0, to approve the minutes of August 28, 2019.
3. OLD BUSINESS (Continued from August 28, 2019 and August 7, 2019)
A. Text Amendment Special Events in the U2 District 19PLND-0032 A Zoning Ordinance Text Amendment pursuant to City Code Title 6, Zoning, to Section 6-15-7-2 of the Zoning Ordinance, to revise permitted uses of the U2 University Athletic Facilities District.
Ms. Jones provided an overview of the proposed text amendment, highlighting revisions Northwestern University made to its application since the item was last discussed. These changes included providing parking for free to address parking concerns and adding time restrictions on when events could occur and how long set-up and take- down time could be.
Page 1 of 17 Plan Commission Minutes 9/11/19
Page 18 of 92
P1. Page 483 of 574 DRAFT- NOT APPROVED
Mr. Mike Polisky, Deputy Athletic Director for Northwestern, gave a brief summary of what Northwestern University is proposing, stating that there will be a limited number of concerts and athletic events over two years and that there have been two open forums with residents regarding the proposal with changes being proposed based off of comments received. He then introduced Mr. Dave Davis, Executive Director of Neighborhood and Community Relations for Northwestern University.
Chair Lewis opened the hearing to questions from the public. A total of 20 people spoke with the following questions: ● Joe Hill inquired if Northwestern had spoken to residents since the August 7th Plan Commission meeting and if the lack of specifying “up to the capacity of the venue” is a way to subvert the zoning code. Mr. Davis responded, acknowledging the concerns of not communicating often enough and stating that Northwestern began the process in January. They have spoken at ward meetings and hosted open forums in which comments were received and considered as part of revised applications. Mr. Davis added that he understands that there may be adverse effects. A maximum of 7,000 people is proposed for events and that cannot be changed due to venue size, there is no plan to expand and there will be measures taken to mitigate effects including additional security, monitoring emergency response times, working with the City on traffic and trash pickup following events. Northwestern has attempted compromise to move forward but will not withdraw its request. ● Mike Vasilko stated he is an architect and planner and asked what data or impact study has been provided to support statements made by Northwestern regarding improving the quality of life and parking. Ms. Jones responded that there were no requests made for marketing studies showing change in property values. Much of what was looked at was existing events and how those have affected traffic but no official traffic study was submitted. ● Yvi Russell asked if any tickets would be sold at the door and if the intent is to presale to Evanston residents and not need to open sales to the public. Ms. Russell then inquired about the sunset provision requesting that a written impact of the events on the neighborhood be submitted and that neighbors be able to provide feedback. She then asked if different events could occur in one day, If Northwestern will attempt to avoid conflicting with City events, if acts would be determined by the sponsor or the act itself, and clarification on if the 7 day events could be multi-day events. Mr. Polisky responded that Northwestern anticipates offering tickets to Evanston residents and opening remaining tickets to the general public. He added that once permission has been granted to hold the events, the clock will start so there has been no ability to plan events at this time but he would be happy to provide a report. The intention for events is to have single events and not breaking it up to have 2 in one day. Mr. Polisky then stated that there is not a lot of influence regarding concerts, it is a work in progress and that there will be the ability to hold 6 single day events and one multi-day event which would need to have City approval.
Page 2 of 17 Plan Commission Minutes 9/11/19
Page 19 of 92
P1. Page 484 of 574 DRAFT- NOT APPROVED
● Geary Kull asked if residents that signed petitions had been talked with, for clarification on the number of parking spaces on the site and if there could be other locations for concerts. He added that what is proposed is not considered educational. Ms. Jones stated that staff is always open to talking to residents and has received a number of calls, emails and documents that are a part of the record. Mr. Polisky stated that there are roughly 1,500 parking spaces with the recent repaving. Seat kills within the arena will vary depending on the concert and most attendees come with more than one person which cuts down on needed parking. Hope that opening spaces for free will help with the demand. Lakefront University facilities do not have needed capacity for concerts. He added that the ordinance change would reduce possible event days from 35 to 13. Mr. Davis then spoke briefly regarding alignment with the educational mission and stated that it is invested in the Community and strengthening the relationship between the City and the University. ● Mary Rosinski inquired how the events would compare with Dillo Day and provided information on hospital visits of attendees in recent years. She inquired if that event could then be moved, how security would be addressed and how many parking spaces exist for lakefront events. Mr. Mangum provided parking information stating that north center structure has 1100 spaces, south visitor center has 435, and the south deck has 492 spaces. Mary Rosinski then asked if economic studies had been read through. Ms. Jones stated that all documents that had been submitted to staff have been included within the Commission’s meeting packets. ● Joyce Zeiss asked for the athletic department to provide projections on possible revenue from events. Mr. Polisky replied that Northwestern knows the general math behind the revenue equation but does not have exact numbers. There would be tax revenue generated from the use. The Chamber of Commerce has some information regarding this but no full study has been done. ● Lynn Trautmann asked if the word “indoor” had been added to the proposed amendment. Ms. Jones replied that the actual phrase “indoor” had not been added. She then stated that the number of people keeps this location from becoming Wrigleyville and should be added. Chair Lewis stated that the Commission can recommend adding that language to the amendment. ● Ken Proskie asked for clarification on the number of parking spaces. 2,000 spaces mentioned previously, now 1,500. He counted 1,359 spaces. ● Stewart Gutsman asked if there would be any willingness to use the parking within the new welcome center on campus for concerts, if there had been any inquiries on the desire of the Evanston community for the proposed use and if there are comparable events instead of Canal Shores which is smaller. Mr. Polisky stated Northwestern will run shuttles, monitor parking and provide the shuttle for free. He then referenced the Chamber of Commerce study for economic effects and desire and stated that no comparable events had been looked at. ● Mark Rosati inquired about enforcing parking on the City’s end. Ms. Jones
Page 3 of 17 Plan Commission Minutes 9/11/19
Page 20 of 92
P1. Page 485 of 574 DRAFT- NOT APPROVED
responded that it is difficult to address that from a pure zoning perspective but the City recently approved parking changes in terms of pricing and providing parking on Poplar Ave. for game day events. This could be a part of Special Event Committee logistics considerations especially for different events with different needs. ● David Staub inquired about involvement of the Special Events Committee and parking by the hospital. Mr. Polisky stated the hospital will be provided with a schedule of events and the hospital vacates the parking lot when needed. ● Laurie Keenan asked what will be done for the children of Evanston to ensure there is not an issue with concerts and alcohol and how will this differ from Dillo Day which has gotten worse over the years. ● Christina Brandt stated that Northwestern has had nefarious actions in the past and asked why Welsh-Ryan Arena was not specifically named and why the sunset clause does not include the public. Mr. DuBose responded that the amendment as written would go through the review process and at minimum go before City Council. Commissioner Isaac added that after 2 years, Northwestern would need to seek a new amendment and stated that it would be appropriate to state a specific expiration date. Mr. Davis stated that he is fine with the language change and that the intent is to hold events at Welsh-Ryan arena. Initially the proposed language included Ryan Field and the community wanted just Welsh- Ryan arena. The concern was if it were limited to just that it could affect current events that are held there. ● Christina Brandt asked why the Commission would vote different than its predecessors and it should be prepared to answer. ● Jill Kidd asked how Northwestern will prove ability to hold these events, what data and metrics will be used, how will the City benefit and how the reporting could be codified. Mr. Polisky replied that there will be collaborative meetings with neighbors for concerns, attendance and expected revenue. Will work with Kellogg on those metrics but knows revenue and impact will depend on the event. Allstate arena has also been consulted to get a feel for how concerts and promotions would work. He is happy to employ new language within the code. ● Susan Blatz asked about what studies were provided and if they were consulted. Ms. Jones responded that the information submitted by Yvi Russell addressed economic impacts and were included in Commission information packets. She then asked why a zoning ordinance change is being considered. Chair Lewis responded that Northwestern owns property and is seeking modifications regarding land use. He added that the Commission will address the studies and what is addressed during deliberation. ● Ted Trautmann inquired about the language “enclosed” not being added and if it could be. Chair Lewis replied that an amendment could be made addressing that language and be a part of the recommendation to City Council. ● Elizabeth Horner stated that at the previous meeting it was stated that the events would have a positive impact on restaurants and businesses, and asked if any study had been done to support that statement. She then referenced that the
Page 4 of 17 Plan Commission Minutes 9/11/19
Page 21 of 92
P1. Page 486 of 574 DRAFT- NOT APPROVED
arena offers 36 food vendors and if the possible effects had been considered. The Chamber of Commerce will address those issues. ● Dana Caspall inquired about the impact on children and if Northwestern and the City considered the effects of these events on young children. Ms. Jones stated that impacts on children was not separated out but consideration for timing of events, set up and take down was included. The Special Events Committee could look at various aspects regarding logistics, noise, impact to City property, etc. Residents do have a say and could submit comments to staff or the alderman that could be forwarded to the Committee. Ms. Caspall then asked if the financial benefits were considered. Ms. Jones said no, that it was not a part of the report and not in the purview of Planning and Zoning or Plan Commission review. She asked if Northwestern would be amenable to adding a parking ban within a mile of the stadium for anyone other than residents and their guests. Mr. Davis replied that the Northwestern cannot authorize a parking ban on public property but can provide a recommendation to Council. ● Amanda Bratten asked what is looked at when recommending change. Chair Lewis stated that the short answer is the proposals must be weighed against the standards for approval of amendments. Ms. Barton asked what will happen in 2 years at the end of the trial period. Ms. Jones replied that staff and the Commission cannot state for certain what will occur but that if there are certain changes such as large increase in attendees additional review would need to occur. Dave Davis added that Northwestern will not expand the use of its facilities to 40,000 people. ● Sarma McBride, a Wilmette resident, stated she is impacted greatly by current events and asked if the restrictions and reimbursement of expenses could be applied in Wilmette. Mr. Davis responded that he has talked with Wilmette and has looked into offsetting its costs.
Chair Lewis opened the hearing to questions from Commissioners. These included: ● Commissioner Hewko explained the “give and get” of the proposed amendment including the number of possible event days being reduced from 35 to 13 days, City approval being required for multi-day events, maximum event attendees being reduced from 10,000 to 7,000, free parking being provided, time limitations have been added and the proposed changes would sunset after 2 years. He then asked if the 4% Amusement Tax and 12% sporting tax would apply or be increased. Mr. DuBose responded that an increase would require a change to City Code and Council approval. ● Commissioner Isaac asked how many total spaces would be allotted for free parking and how many would be within the U2 zoning district and if Northwestern would be opposed to prohibiting tailgating before and after events. Mr. Polisky responded that Northwestern could commit all existing parking spaces in the U2 and will commit additional spaces, of the 3,800 total. with shuttles for temporary events. He cannot commit all of the University’s parking spaces. He added that he would support prohibiting tailgating.
Page 5 of 17 Plan Commission Minutes 9/11/19
Page 22 of 92
P1. Page 487 of 574 DRAFT- NOT APPROVED
● Commissioner Sloss asked if the costs incurred by the City are transferred to the applicant and the average attendance at games. Mr. Polisky responded that they are. He added that there are 6,800 attendees at basketball games with a 7,039 seat capacity Welsh-Ryan arena. ● Chair Lewis asked if there have been similar University events hosted in this area. Mr. Polisky responded that there are volleyball games, wrestling events, basketball games with a capacity of 7,039 seats. Men’s basketball has the highest average attendance.
Chair Lewis opened the hearing to public testimony. There were several presentations and people speaking on behalf of organizations as well as 16 individuals who spoke in addition to those presenters. The presentations included the following: ● Ken Proskie, representing neighbors east of Ryan Field. Mr. Proskie’s presentation showed other Big 10 schools and the surrounding areas. The information showed that Northwestern University has twice as many residences surrounding its sports arenas than all other Big 10 schools. He explained that there is a parking deficit with other locations having 1 parking space per 2.6 seats versus Northwestern providing 1 parking spaces per 5.2 seats. As a point of reference for attendees who may use public transit, he added that between 8% and 12 % of Ravinia attendees use public transit. ● Laurie McFarlane, with North Evanston Watch, provided a presentation showing zoning use differences with Northwestern having a history of bad behavior. She added that Northwestern has not met the standards for approval of a text amendment. ● John Nader of Economists for Growth provided economic data and stated that the proposal does not make economic sense. He stated that a survey was done of professors with majority stating that events such as those proposed would be a drain on the surrounding area. He added that an economic impact presentation should be provided that demonstrates a halo effect from attendees as it likely does not apply to this area. ● Yvi Russell provided a presentation of possible effects and impacts. She provided a history of the property and Northwestern’s past event activities noting violations with Northwestern hosting professional events. She also noted the code violations on the east parking lot and that stated that the City should not trust Northwestern’s proposed amendment. ● Roger Sosa of the Evanston Chamber of Commerce provided information on a survey conducted by the Chamber regarding the proposal and various aspects of the Arena. The survey was open for one month. Based on the responses received 70% would be in favor, 20% would not and 10% were unsure. He added that there is conflicting data on possible impacts of the proposed amendment and conclusions have depended on assumptions. The amendment could be a “shot in the arm” economically and expose the City to new visitors who visit businesses.
Page 6 of 17 Plan Commission Minutes 9/11/19
Page 23 of 92
P1. Page 488 of 574 DRAFT- NOT APPROVED
Chair Lewis asked for a motion for a brief recess. Commissioner Isaac motioned for a 5 minutes recess and Commissioner Goddard seconded the motion. The Commission recessed at 10:29
Commissioner Goddard made a motion to reconvene the meeting, seconded by Commissioner Isaac. The meeting reconvened at 10:35
Public testimony continued with individual testimony from residents. The comments included the following: ● Joe Hill expressed his belief that the text amendment is a ploy to avoid going through the map amendment process and that if the amendment is approved, the City would lose the ability to review. ● Margaret Faust stated that the amendment is inconsistent with the Commission’s pledge and that there would be negative effects. Events are not all created equal and the hours are inconsistent with the surrounding neighborhood and would encourage tailgating. She encouraged the Commission to vote no. ● Mary Rosinski stated that the amendment process is not intended to relieve hardships or confer special rights onto individuals. She added that she disagrees with statements regarding increased property values. The issues are about trust and she encouraged the Commission to send the amendment back to staff for further review. ● Ted Trautmann stated that only amateur events are allowed due to the location within a residential area. Neighbors have rejected previous attempts to hold professional events. Nothing has changed this time except a renovated stadium. He encouraged the Commission to reject the amendment. ● Joyce Zeis stated that concerts are determined to be impactful. They should occur on infill property with new buildings, which would be a compromise. ● Andrew Samiak stated that he moved to Evanston from Austin, TX and went to Michigan State and worked in events planning for the Breslin Center. He stated that there are cultural events that add value and to say those type of events do not add value is a misstatement. He mentioned well known acts that have booked other university spaces such as UIC pavilion (a 9,500 seat venue) in Chicago. He referred to local businesses from the petition against the amendment and noted that only 10 are open after 6:00 PM and 5 of those are located over a mile away from the site. He provided information on event attendance at Michigan Stadium and stated that it is misleading to say that stadium and its events do not affect the outside community there. ● Stewart Gottsman expressed that there is crowding in the neighborhoods during events. He asked that Northwestern and the Commission listen to the residents and send the proposed amendment to the Zoning Committee. ● Amanda Braton shared that her home backs up to the back of the stadium. She felt protected by the existing zoning and is against the proposed change.
Page 7 of 17 Plan Commission Minutes 9/11/19
Page 24 of 92
P1. Page 489 of 574 DRAFT- NOT APPROVED
She added that she is a voice for mothers and the proposed change poses safety issues that are of concern. Approving the amendment would open the door to other changes in zoning. ● Mark Rosati expressed strong opposition to the amendment and mentioned the UIC pavilion mentioned by a previous resident, stating that that space is on campus and is a different type of area. He believes this is a misguided proposal. ● Bob Cruse stated that he was hit by a car as a child on Ashland Ave. and has concerns for traffic safety. He is less concerned with Northwestern making money than the loss of property values and asked if Northwestern could simply ask for a variance for events. He added that it appeared that some slides were based on the center of the U2 district and not the property lines. ● David Straub stated that the first 3 presentations were good and he agrees with them. He does not believe that Northwestern has met the burden of proof and that review would be limited to logistics versus getting a full permit from the Special Events Committee. ● C. Brandt stated opposition to the amendment and that there are no benefits to offset the impacts. The District is bordered by residents on all 4 sides. Concern over the introduction of alcohol sales at the arena. There are already a number of cultural events in Evanston, is there a need for revenue in the form of using this land? ● Jill Kidd stated opposition and supported other comments. She added that the revenue mentioned for local business is not new spending and no substitution was taken into account. She added she had less concern of noise within the stadium than traffic noise and an entertainment center is not a standard. ● Susan Blatts stated support of presentations in opposition to the amendment and that Northwestern has not met the burden of proof. Entertainment should be provided downtown. ● Maria Topper stated that she loves Evanston and the neighborhood and has safety concerns. There is a lack of parking on game days and it is reckless to bring in events without proper infrastructure. ● Kat O’Reily stated she was impressed by the resident presentations
Chair Lewis closed public testimony and asked for further comments and questions from the Commission.
Commissioner Isaac asked if Evanston Police Department presence is reimbursed. Mr. Davis responded that the cost is reimbursed and the City passed an ordinance to require reimbursement of all overtime activity
Commissioner Isaac then referenced Wrigleyville stating it is his understanding that the Chicago Cubs send staff into neighborhoods to clean up, and if Northwestern is open to doing something similar. Mr. Davis responded that trash receptacles are provided for events. Mr. Polisky added that there is investment made to ensure the
Page 8 of 17 Plan Commission Minutes 9/11/19
Page 25 of 92
P1. Page 490 of 574 DRAFT- NOT APPROVED
neighborhood is returned to the way it was prior to the event and Northwestern would be open to having additional conversations though no complaints are made.
Commissioner Isaac asked if there was any thought to having open air concerts on the lakefront versus an indoor facility similar to Evanston Space in Canal Shores or Grant Park in Chicago. Mr. Polisky has stated that at this time concentration has been on existing indoor space and outdoor concerns have not been considered.
Commissioner Isaac then asked if the proposed change is required to have a Paul McCartney level artist play at Welsh-Ryan arena. Mr. Polisky stated that it is his understanding that, per the ordinance, the change is required in order to have a for- profit event. Some other events have been student led and non-profit in nature. Attempting to pursue in the right manner.
Chair Lewis asked if the language is being changed to for-profit or professional events. Ms. Jones replied that the proposed amendment would open Northwestern’s facilities to both professional and for-profit events. The current amendment strikes non-profit from the regulations. Commissioner Isaac asked if “amateur” and “non- profit” address the same thing. Ms. Jones replied that that is essentially the intention.
Laurie McFarland stated that sporting events are considered an integral part of the college experience and not in question whether profit is made or not.
Commissioner Hewko inquired about the language stating “intended primarily for residents of the City”, is Northwestern arguing that giving first access to residents addresses that intention. Mr. Polisky replied yes, that is the intention.
Commissioner Hewko then asked if there is a definition for athletic events and if there could be different interpretations going forward. Ms. Jones stated that there is not a definition for athletic events or language that specifically lists what sports would be included in that.
Chair Lewis asked for closing remarks from Northwestern. Mr. Davis thanked the Commission and residents for the ability to present the proposal to do something that Northwestern may believe is simple but may also have impacts to the neighborhood. He added that there will be measures taken to mitigate possible effects, including foot patrols, traffic management, litter services and trash pickup as well as ongoing conversations will occur with residents. He acknowledged that there has been a confrontational relationship between Northwestern and the City that has improved though there is some lingering distrust from some residents.
Chair Lewis closed the public hearing and the Commission began deliberations.
Chair Lewis asked if the attempt to limit noise is more or less stringent than the
Page 9 of 17 Plan Commission Minutes 9/11/19
Page 26 of 92
P1. Page 491 of 574 DRAFT- NOT APPROVED
City’s noise ordinance. Ms. Jones stated that Northwestern would have to comply with current noise regulations. Mr. Mangum added that in Title 9, the noise regulations are stated some of which 10:00p to 7:00a Sunday through Friday, Friday to Sunday 11:00p to 7:00a. Construction activity (set up and take down) is limited to 7:00a and 9:00p weekdays and 8:00a to 5:00p on Saturday.
Chair Lewis acknowledged that, per the current code, there are 35 possible days that could be used for amateur and nonprofit events; if those events were available those days would be used. The real issue is professionalism makes more events available so more days could be used.
Commissioner Isaac stated that there would be a net of 11 more days outside of the 2 current one day temporary events that are held. He then added that he has a number of suggested amendments to what is proposed including: adding language regarding having the events indoors, leaving “amateur athletic events” within the proposed language, having the University provide notice when a special event is planned, making it clear that at least 2,000 parking spaces should be provided with 1,300 of those spaces available within the U2 district, no loitering pre or post event, and having a definitive date for the end of the 2 year trial period of December 31, 2021.
Chair Lewis asked for clarification on how the Commission could vote on proposed amendments to the proposal. Mr. DuBose replied that it would make sense to review and discuss the full amendment and if needed address amendments to the full proposal.
Commissioner Sloss stated that she generally agrees with Commission Isaac and added that more information on possible home depreciation and certainty of an event schedule may help. She is open to eliminating City of Evanston approval to specifically say City Council approval and clarifying the expiration of the trial period to a specific date.
Commissioner Goddard expressed that she is uncomfortable with requiring 2,000 spaces as there is a lot of access to public transportation and that amount of required spaces may be excessive. She had no issues with professional events.
Commissioner Hewko stated that regulations should specify that events are indoor only and there should be no tailgating permitted for the events, however, the requirement of 2,000 parking spaces seems excessive. Would not strike “amateur” events from the proposed language. Would also require City permission for all events.
Chair Lewis suggested having City Council review would provide some control on the type of event and inquired about the Special Events Committee review. Mr.
Page 10 of 17 Plan Commission Minutes 9/11/19
Page 27 of 92
P1. Page 492 of 574 DRAFT- NOT APPROVED
DuBose clarified the process for the Special Events Committee and stated that Director Hemingway is amenable to including these events for Special Events Committee review.
Chair Lewis asked what the difference is between amateur versus professional. Certain audiences may be more disruptive but that is not predicated on professional versus amateur events. Commissioner Isaac stated that he ties the multi-day event single day events together. He added that a 7-day tennis event could be considerably more disruptive than a single day evening concert. He is not in favor of multi-day events but that could be done after a 2 year testing period for single-day events.
Commission Sloss asked if Commissioner Isaac is more opposed to multi-day events versus professional would he be open to professional single day events and striking multi-day events. Commissioner Isaac stated he would be open to that but would then prefer that City Council approval be required for all events not just multi- day events.
Chair Lewis spoke regarding studies mentioning that traffic would likely be similar to that of existing events but that an economic analysis could be done to demonstrate a need. Commissioner Goddard disagreed on the former point, stating the Commission does not make decisions based off of economics.
Chair Lewis stated that there is a benefit to having local events versus having to travel to a new location. Chair Lewis then asked if it is necessary to have the use at this site and if it could be at a different Northwestern location and be less impactful.
There was then some discussion regarding including specific dates for the sunset provision and when the date could be set.
The Commission then reviewed the standards for approval of amendments and agreed that standard one is met due to the language not seeming to increase the intensity of use. There was some disagreement on standard two with compatibility being possible if the proposed language is modified and other items considered. The Commission generally agreed that standard three was met with conflicting evidence of effects of nearby property values. The Commission agreed that, with modifications, the fourth standard of adequate utilities and services could be met.
Commissioner Hewko made a motion to approve the text amendment as presented by staff. Seconded by Commissioner Goddard.
Commissioner Isaac made a motion to amend the proposed amendment to retain the word “amateur” in the amendment. Seconded by Commissioner Dubin. A voice vote was taken and the motion failed by a 1-5 vote.
Page 11 of 17 Plan Commission Minutes 9/11/19
Page 28 of 92
P1. Page 493 of 574 DRAFT- NOT APPROVED
Commissioner Isaac made a motion to amend the proposed amendment to provide written notice to residents within 500 feet of the site within 5 days of approval of special events. Seconded by Commissioner Hewko. A voice vote was taken and the motion passed by a 5-1 vote.
Commissioner Isaac made a motion to amend the proposed amendment to provide free 2,000 parking spaces with 1,300 spaces being within the U2 district. Seconded by Commissioner Sloss. A voice vote was taken and the motion passed by a 4-2 vote.
Commissioner Isaac made a motion to amend the proposed amendment to prohibit loitering before and after events. Seconded by Commissioner Hewko. A voice vote was taken and the motion passed by a 6-0 vote.
Commissioner Isaac made a motion to amend the proposed amendment to limit events to no more than 7 consecutive days. Due to lack of a second, that motion failed.
Commissioner Isaac made a motion to amend the proposed amendment to provide an ordinance expiration date of December 31, 2021. Seconded by Commissioner Sloss. A voice vote was taken and the motion passed by a 4-2 vote.
Commissioner Isaac made a motion to amend the proposed amendment to remove language referring to City of Evanston extension of the ordinance. Seconded by Commissioner Sloss. A voice vote was taken and the motion passed by a 4-2 vote.
Commissioner Isaac asked for suspension of the rules to ask a question regarding the number of outdoor events and attendance. Mr. Polisky responded that the Run for Walk event has approximately 1,000 participants, the Meet the Team event has 800 participants and the community movie in Ryan Field attracts approximately 2,500 participants.
Commissioner Isaac then made a motion to amend the proposed amendment to limit indoor event attendance to 7,000 people and outdoor event attendance to 3,000. Seconded by Commissioner Hewko. A voice vote was taken and the motion passed by a 6-0 vote.
Commissioner Hewko made a motion for all events to be approved by the City Council. Seconded by Commissioner Isaac. A voice vote was taken and the motion passed by a 5-1 vote.
Page 12 of 17 Plan Commission Minutes 9/11/19
Page 29 of 92
P1. Page 494 of 574 DRAFT- NOT APPROVED
Commissioner Isaac then made a motion to approve the proposed text amendment as amended. Seconded by Commissioner Sloss. A roll call vote was taken and the motion passed, 4-2.
Ayes: Dubin, Isaac, Sloss, Hewko Nays: Goddard, Lewis
4. NEW BUSINESS
A. Planned Development 1012-1018 Church Street (Northlight Theatre) 19PLND-0075 Northlight Theatre, applicant, proposes to construct a 29,860 sq. ft. Cultural Facility, live theater performance venue, with a 312 seat main stage, rooftop entertainment deck, and a building height of 43 ft. The following site development allowances are requested: 1) Providing zero off-street parking spaces where 34 are required, and 2) A 2 ft. setback from the street frontage property line at the first floor where a zero setback is required (a new building is required to be built to the street frontage up to a minimum building height of 24 ft. but not more than 42 ft.). The property is located in the D3 Downtown Core Development District.
Mr. Mangum provided an overview of the proposed planned development, explaining the site development allowances, public benefits and staff recommendation for the project.
Mr. Tim Evans of Northlight Theatre, then gave a brief presentation of the proposed project describing the façade and building offerings. He then introduced Mr. Craig Smith, architect, who provided additional details on the building, including the ground floor layout and entries, 2nd level administrative offices and balcony, 3rd level rehearsal hall, and lower level stage traps and pump room. He then reviewed the overall site plan, sharing the intention to have patrons utilize public transit and nearby city garages. Buses for student visitors would utilize a loading space on Oak Avenue.
Janet Mullet then gave an overview of the economic impact, including $55 million in new spending in the first five years of the theatre being open in addition to $427,000 in new city taxes and 115 full-time equivalent jobs being created.
Mr. Evans then explained some of the existing charitable partnerships Northlight Theatre has with other organizations and briefly described some of the existing site conditions.
Chair Lewis opened up the hearing to questions from the Commission.
Page 13 of 17 Plan Commission Minutes 9/11/19
Page 30 of 92
P1. Page 495 of 574 DRAFT- NOT APPROVED
Commissioner Goddard inquired about the removal of two parking spaces in front of the Church Street entrance. Mr. Smith responded that Northlight intends to direct patrons to parking garages and is not looking to use that area as a drop-off space. There is a side door off of the west alley adjacent to the City lot that can be used as an accessible entryway. Commissioner Goddard stated that the plan will require a lot of education of patrons and if there is valet service proposed. Mr. Smith replied that valet service is planned for parking.
Commissioner Sloss asked if the café and patron space will be open every day. Mr. Evans responded that it would be open and the hope is to create a gathering space for meetings and programming during the day.
Commissioner Isaac inquired about the roof deck use. Mr. Smith stated that it will primarily be a rehearsal hall. There will be some programming and occasionally be an event space for 20-225 people, likely not on a regular basis but 5 to 7 times per year.
Commissioner Isaac then inquired about the parking lot used by The Barn. Mr. Smith responded that The Barn is to remain operating during construction and that its rear parking will be removed; Commissioner Isaac then inquired about the alley entry access. Mr. Evans responded that the entry will be open when the building is open.
Commissioner Isaac asked how many performances are anticipated per week and how much lead time is needed for patrons. Mr. Evans responded that there are matinee shows on Wednesday, Saturday and Sunday at 1:30 or 2:00pm and Tuesday through Sunday performances at 7:30 or 8:00pm; patrons arrive 30 minutes prior at the earliest.
Commissioner Hewko asked about the economic benefit for the temporary construction period. Mr. Smith stated there will be a 14 to 15 month construction duration. Ms. Janet Mullet provided a summary of the 25 year impact study completed in July, including $15,000,000 in materials and $13,000,000 in new labor
Chair Lewis asked for clarification on the accessible entry off of the alley and whether or not the front entry was accessible. Mr. Smith responded that the front entry is fully accessible and the alley entry was an alternative to stopping to drop off a patron needing an accessible entrance on Church Street. Chair Lewis then asked if one set of doors would be adequate for 300 patrons. Mr. Smith responded yes, that this has worked in the current theatre location, and from experience, there is a gradual exit with people tending to linger.
Chair Lewis suggested placing a handicapped space on Church Street near the front entry.
Chair Lewis then opened the hearing to questions from the public.
Page 14 of 17 Plan Commission Minutes 9/11/19
Page 31 of 92
P1. Page 496 of 574 DRAFT- NOT APPROVED
Marty Class, nearby property owner spoke in favor of the project and stated his appreciation of Northlight’s work with other organizations. He then inquired about the surface parking lot at 1621 Oak St and whether that would be a part of the project as there had been discussion of taking over the lot for construction and possibly purchasing it in the future. Mr. Smith replied that had at one point been considered but is no longer being considered as part of this proposal. Mr. Evans described earlier plans that had two phases: Phase I is construction of the building at 1012 Church. Phase II would be to build a second stage for performances but that is not proposed at this time and would be years away and dependent on fundraising. Parking in that case would be retained and be partially subgrade.
Mr. Evans provided a closing statement expressing that Northlight Theatre hopes to have a marriage of art and commerce and is excited to be coming back to Evanston. Heavy fundraising is planned and groundbreaking would be in 2021 or 2022 with the building being constructed a year from that time.
Chair Lewis closed the public hearing and the Commission began deliberation.
Commissioner Goddard stated that she loved the building. Her concern is with permanently losing the 2 parking spaces in front and suggested that valet be incorporated on a part time basis there.
Commissioner Isaac stated that Fridays and Saturdays, the area is crowded but he is not overly concerned with that. Overall, a great project but expressed that removal of the 1621 Oak parking lot would be negative.
Commissioner Dubin stated that this is a great project, a great building and function. She added that there is an underutilized parking lot on the south side of the alley further east of the site.
The Commission reviewed the standards for approval of a special use, planned development, and planned development in the downtown districts.
Commissioner Goddard made a motion to approve the proposed development as presented by staff. Seconded by Commissioner Isaac.
Commissioner Isaac then asked for an amendment to be added to include a restriction from using 1625 Oak lot as part of the valet service. Commissioner Dubin seconded that motion. A voice vote was taken and the motion failed 3-3.
A roll call vote was then taken on the original motion which passed, 6-0.
Ayes: Dubin, Hewko, Isaac, Goddard, Lewis, Sloss Nays:
Page 15 of 17 Plan Commission Minutes 9/11/19
Page 32 of 92
P1. Page 497 of 574 DRAFT- NOT APPROVED
B. Map Amendment Howard Street Rezoning 19PLND-0080 A Zoning Ordinance Map Amendment pursuant to City Code Title 6, Zoning, to rezone properties located at 951-1125 Howard Street from the C1 Commercial District to the B2 Business District.
Commissioner Sloss made a motion to continue the item to the September 25, 2019 Commission meeting. Seconded by Commissioner Isaac.
A roll call vote was then taken on the original motion which passed, 6-0.
Ayes: Dubin, Hewko, Isaac, Goddard, Lewis, Sloss Nays:
C. Text Amendment Accessory Recreational Cannabis Use 19PLND-0078 A Zoning Ordinance Text Amendment pursuant to City Code Title 6, Zoning, to create definitions for recreational and medical cannabis related uses, establish any applicable general provisions for such uses, establish any applicable parking requirements for such uses, and amend the permitted and special uses in the Business, Commercial, Downtown, Research Park, Transitional Manufacturing, Industrial, and Special Purpose and Overlay zoning districts.
Commissioner Dubin made a motion to continue the item to the September 25, 2019 Commission meeting. Seconded by Commissioner Isaac.
A roll call vote was then taken on the original motion which passed, 6-0.
Ayes: Dubin, Hewko, Isaac, Goddard, Lewis, Sloss Nays:
4. PUBLIC COMMENT
There was no public comment.
5. ADJOURNMENT
Commissioner Isaac made a motion to adjourn the meeting. Commissioner Dubin seconded the motion.
A voice vote was taken and the motion was approved by voice vote 6-0. The meeting was adjourned at 1:48 am.
Page 16 of 17 Plan Commission Minutes 9/11/19
Page 33 of 92
P1. Page 498 of 574 DRAFT- NOT APPROVED
Respectfully Submitted, Meagan Jones Neighborhood and Land Use Planner Community Development Department
Page 17 of 17 Plan Commission Minutes 9/11/19
Page 34 of 92
P1. Page 499 of 574 DRAFT- NOT APPROVED
MEETING MINUTES PLAN COMMISSION Wednesday, August 7, 2019 7:00 P.M. Evanston Civic Center, 2100 Ridge Avenue, James C. Lytle Council Chambers
Members Present: Colby Lewis (Chair), Peter Isaac (Vice-Chair), Terri Dubin, Carol Goddard, George Halik, Jane Sloss
Members Absent: Jennifer Draper, Andrew Pigozzi
Staff Present: Scott Mangum, Planning and Zoning Manager Meagan Jones, Neighborhood and Land Use Planner Hugh DuBose, Assistant City Attorney
Presiding Member: Chairman Lewis
1. CALL TO ORDER / DECLARATION OF QUORUM
Chair Lewis called the meeting to order at 7:02 P.M.
2. APPROVAL OF MEETING MINUTES: July 24, 2019
Commissioner Isaac then made a motion to approve the minutes as amended, seconded by Commissioner Goddard. The Commission voted, 5-0, with one abstention to approve the minutes of July 24, 2019.
3. NEW BUSINESS
A. Planned Development 1215 Church St. 19PLND-0069 YWCA Evanston/North Shore YWCA Evanston/North Shore submits for a Special Use for a Community Center - Public, and Recreation Center - Public, to allow for addition and expansion of the existing special use, and for a Planned Development to demolish two extant residential buildings and construct a 2-story entrance on the south facade of the existing administration center and pool building, construct a 4-story addition at the north end of the property, construct a 2nd-story addition to provide connection between the two structures, and to provide 78 parking spaces, in the R4 General Residential District. Site development allowances are requested for: 1) Parking located within the required 27' front yard setback where parking is not permitted, 2) Parking (loading Page 1 of 11 Plan Commission Minutes 8/7/19
Page 35 of 92
P1. Page 500 of 574 DRAFT- NOT APPROVED
zone) located within the required 10' west interior side yard setback where parking is not permitted, 3) Impervious surface coverage of 75.5% where 55% is the maximum permitted, 4) Building height of 42.4' and 4 stories where 35' not to exceed 2.5 stories is permitted, and 5) Open loading zone located in the front yard where permitted to be located in rear yards. The applicant may seek and the Plan Commission may consider Site Development Allowances as may be necessary or desirable for the proposed development.
Mr. Mangum provided an overview of the proposed development and the allowances requested. Mr. Steve Bauer, attorney with Meltzer, Purtill and Stelle, then introduced the Karen Singer (President and CEO of YWCA), Shabnum Sanghvi (Vice-Chair Board of Directors for YWCA), Jim Kastenholz (The AT Group), Jack Schroeder (Landon Bone Baker Architects), Chris Hutchinson (Terra Engineering), Chris Neely (Terra Engineering), and Mimi McKay (McKay Landscaping). He then stated that the proposal had obtained a Certificate of Appropriateness (CoA) from the Preservation Commission and received a positive recommendation from the DAPR Committee. He then explained that the development includes a partial redevelopment of the site, certain elements will be removed and others will remain. Building height is the only site development allowance not associated with existing building constraints.
Ms. Shabnam explained the value of the YWCA and the proposed project. She gave a brief history of the site and stated that YWCA has served over 800 people yearly and over 2,000 students with a number of programs.
Karen Singer, CEO of YWCA, shared that the needs of the community have grown and changed and the YWCA has grown to meet those needs. The budget has also increased; however, the building footprint has not changed in 50 years. An assessment was done and feasibility study was done to determine whether or not the organization should remain in Evanston. The end result was a decision to remain and undertake improvements and expansion.
Mr. Kastenholz provided details on the proposed development. Parking is proposed in excess of the zoning requirements but is needed due to programming and events.
Jack Schroeder provided an overview of the site configurations and interior improvements. He emphasized that the family residential entry is now separate from general entry. There will be renovations to the aquatic space and classroom and office space added. Family living area will have shared laundry, kitchen and play area. He added that the glass area on the north façade is classroom space and intended to be more inviting. Lighting on site will be directed downward and mechanical equipment will be reviewed as it relates to noise.
Mr. Steve Bauer provided review of the building height and orientation. He stated that
Page 2 of 11 Plan Commission Minutes 8/7/19
Page 36 of 92
P1. Page 501 of 574 DRAFT- NOT APPROVED
seven community meetings have been held as well as meetings with individual residents. City staff was present for at least one of those meetings.
Chair Lewis opened the public hearing to questions from the Commission.
Commissioner Halik asked how neighbors will be shown improvements to the façade. Mr. Mangum stated that the proposed project will be in front of Planning & Development Committee and will be before DAPR prior to issuance of a building permit.
Commissioner Isaac asked if the removal of stairs leading to Ridge Avenue was at staff’s request. Mr. Mangum responded that staff made that request as Ridge is a busy street and having a mid-block crossing was not considered to be safe. Commissioner Isaac then asked for clarification on the lot orientation and setbacks. Mr. Mangum stated that staff considered Church Street to be the front yard and that the parking is within the 27 foot setback.
Chair Lewis stated that the parking would be considered an existing condition that cannot be expanded. Commissioner Halik responded that one could argue a different front yard setback.
Commissioner Goddard asked if there is a dire need for more domestic violence victim space, why is it limited to just the 3rd and 4th floors? Ms. Singer stated that the YWCA was hoping to keep a balance that is non-institutional and that would also require more staffing. Chair Lewis confirmed that what is proposed meets the need. Ms. Singer responded that is does.
Commissioner Sloss inquired about the distance from the building to the closest adjacent building. Mr. Schroeder responded that he did not know for certain. Mr. Mangum responded that the distance is approximately 60 feet.
Chair Lewis stated that that the building is in an historic district and that demolition of the existing house was approved by the Preservation Commission. He then asked how that relates to the proposed building and how far back is it from Church Street? Mr. Bauer responded with clarification on where the historic district boundary is and compared the existing conditions to what is proposed.
Chair Lewis then inquired about the material palette. Mr. Bauer responded that there will be metal paneling on the addition and at the entry that is painted white. The overall façade of the development will be revisited.
Commissioner Halik stated that he has an issue with the site plan and mentioned the loading and trash being located next to adjacent homes. He also expressed concerns about the mechanical equipment. Mr. Bauer responded that placing the trash in the north lot does not make sense and that the building does not really have a backyard. He
Page 3 of 11 Plan Commission Minutes 8/7/19
Page 37 of 92
P1. Page 502 of 574 DRAFT- NOT APPROVED
added that he has tried to figure out how the trucks could best maneuver on the site.
Mr. Bauer added that the site plan is presented differently from what is in the meeting packet. He mentioned that staff had concerns with access being off of Ridge and that currently the trash bins have no enclosure. Commissioner Isaac asked how many more bins are anticipated. Mr. Bauer responded that a 50% increase in bins is anticipated. There are currently 2 trash bins and 2 recycling bins.
Chair Lewis then made an announcement for the ability of homeowners within 1,000 feet of the proposed development to request a continuance. He then opened the hearing up to questions from the public. A total of 4 people asked questions, including the following: ● Dave Brannigan asked if the intent of the proposed fence to replace the brick wall and fence of the neighbor, if the current location of the trash will remain, and why his property does not have any landscaping relief. Mr. Bauer responded that all changes are intended to be on YWCA property and that additional trees and landscaping can be added. YWCA is working to confirm the trash location but it will likely be where it currently exists. ● Elizabeth Rack asked how the proposed development helps the historic district, how does the development not impact the surroundings as a planned development, and if it is possible to see renderings of other buildings along the Ridge and Asbury corridors. Mr. Bauer provided clarification on the district boundary and stated that the new entry is more welcoming. He added that the Preservation Commission had concluded that enough change had taken place to the house on the south lot that demolition had little impact. He then explained that there will be new landscaping, stormwater retention, new buildings and improved parking circulation. Renderings would need to be commissioned by the owner. Chair Lewis added that the mission of the YWCA could be considered a benefit of the proposed plans to the wider community. ● Tom Roland stated he appreciates movement of the trash enclosure and the Commission and staff working on the façade then asked what specifically will be changed, what the height of the separating wall will be, if there will be a study done to show renderings and impact, and studies regarding building orientation. Mr. Bauer explained that possible impact to the neighbors will be addressed. He added that the programming will not shrink and that as mentioned previously the team will be looking at materials and will revisit the wall height and various building orientations were looked at and considered.
Chair Lewis then asked for testimony from the public. A total of 6 people spoke and included the following comments: ● Mary McWilliams stated that the proposed addition lacks context with 1970’s addition or the surrounding properties and that it looks more like a correctional facility. She also expressed disappointment in the approval for the house demolition and that there are other buildings constructed that respect
Page 4 of 11 Plan Commission Minutes 8/7/19
Page 38 of 92
P1. Page 503 of 574 DRAFT- NOT APPROVED
surrounding properties. She supports further work on the façade. ● Mr. Brannigan expressed that he is bothered by early trash pick-ups and that increased bins are a negative impact. ● Ms. Rack stated that she echoes Ms. McWilliams’ thoughts and added concerns regarding lighting levels and noise from the mechanical equipment, asking for clarification on how it will be mitigated. ● Mr. Roland stated that he appreciates the comments provided so far and that with the 19% increase in building space, an enhanced landscaping plan would be a good solution. ● Evelyn McGowan stated that she is happy that circulation is being addressed and that the existing house does not serve the shelter well. She added that echoing nearby historic structures does not always work and that a modern look works for new buildings that will stay for years. ● Joan Safford expressed concerns with the aesthetics of the rear building and tunneling connecting the buildings. She added that the district has lost contributing buildings and that changes can be made to better integrate the building into what exists.
Mr. Bauer responded to the comments saying that there is a repeated theme as it relates to aesthetics of the projects and that the YWCA intends to work with staff on the façade as well as the trash enclosure location and landscaping. A considerable amount of thought was put into the site and building orientation so it will likely not be changes.
Chair Lewis closed the public hearing and the Commission began deliberation.
Commissioner Isaac stated that he believes the project is a net positive but there are also some items that need more thought including landscaping to the west and trash pick-up. A condition should be added that trash pickup not before a certain time to address current issues and make sure there is no increase.
Commissioner Halik asked if the enclosure could be moved. He then stated that sound is an issue as our lighting issues but those can be mitigated. He added that the view from Asbury Ave, is important and the relationship between the two buildings is important. He suggested that the building be stepped back and that both color and materiality are important. He then expressed concerns that some zoning issues are being left to other committees, wondering if the group should come back to the Commission to present their changes.
Chair Lewis stated that the purpose of the Commission review is to provide a recommendation to the Council and there will be other opportunities to see the changes YWCA makes to the project.
Commissioner Goddard stated that Evanston is lucky to have the organization and that she supports the development but wishes it did not look as institutional.
Page 5 of 11 Plan Commission Minutes 8/7/19
Page 39 of 92
P1. Page 504 of 574 DRAFT- NOT APPROVED
Chair Lewis stated that he does not think the building should mimic what exists but should be sympathetic. He referenced the addition done by the Catholic School on Ridge Ave. and encouraged something similar to be the goal. He agreed that the front entry could be more sympathetic. He cannot see many deliveries being an issue but stated that the commission cannot see there will be no detrimental effects if neighbors will be affected.
The Commission then reviewed the relevant standards for approval for the planned development and found that it met most applicable standards, however, there was disagreement on #4 for Special Use and #7 regarding the demolition of the historic house.
Commissioner Halik expressed concern of meetings being close together with little change able to occur between. Plan Commission seemed to be doing the same thing. He believes the architects are good but should also listen to the neighbors. Commissioner Isaac stated that Council may approve the development even if the Commission votes to recommend approval.
Commissioner Dubin asked who determines when enough changes have been made and if the applicant will take comments made into account. She added that specific comments can be configured into conditions.
Commissioner Isaac stated that it is not uncommon to put authority into staff’s hands for more minor changes. He then inquired about the property to the north having a curb cut, stating that left turns do occur. Commissioner Sloss mentioned that a porkchop had been added at that curb cut to discourage that movement.
Commissioner Isaac made a motion to accept staff’s recommendation of the planned development as presented with modification to the 1st condition to add “to the satisfaction of City staff” and the addition of the following conditions: Increasing landscaping on the west to the satisfaction of City staff and that the applicant be prohibited from scheduling trash pick-up before 9:00 AM. Commissioner Goddard seconded the motion. A roll call vote was taken and the motion passed, 5-1.
Ayes: Dubin, Goddard, Isaac, Lewis, Sloss Nays: Halik
A brief recess was taken and the next agenda item’s hearing began at 9:32 PM
A. Text Amendment Special Events in the U2 District 19PLND-0032 A Zoning Ordinance Text Amendment pursuant to City Code Title 6,
Page 6 of 11 Plan Commission Minutes 8/7/19
Page 40 of 92
P1. Page 505 of 574 DRAFT- NOT APPROVED
Zoning, to Section 6-15-7-2 of the Zoning Ordinance, to revise permitted uses of the U2 University Athletic Facilities District.
Ms. Jones provided an overview of the proposed text amendment, including the 2 year sunset provision that was added from the original submittal.
Commissioner Sloss inquired about the Special Events Committees specific standards. Ms. Jones replied that the group reviews a number of items similar to the Design and Project Review Committee with representation from several City Departments to ensure that events have proper logistics and safety or security measures that may affect City resources.
Commissioner Halik asked if any events had been held under the current wording. Ms. Jones responded that no events had been held under the current wording. However, there have been events in the past in the 70s, including a Bears game and, she believed, a concert had been held as well that did not have City permission. Concerts could be permitted with the conditions stated.
Commissioner Isaac stated that with the 7,000 attendee cap, events would likely not be in Ryan Field but in Welsh-Ryan Arena or at one of the baseball fields. Ms. Jones responded that is essentially the case. He then inquired about the current events held and confirmed that those events are considered permitted under the current regulations.
Commissioner Isaac then asked if Northwestern University sells tickets to their events, if the City sees any amusement tax from those sales. Mr. DuBose replied that sporting events do not qualify as amusements, there is a separate sporting event ticketing tax. Mr. Isaac asked if the City expects to obtain amusement tax from new events. Mr. DuBose replied that if the event is a concert then yes, however, he would need to review the event to see what tax, if any would be obtained.
Commissioner Isaac then asked about the phrase “intended primarily for residents of the City” and how that threshold would be met. Ms. Jones responded that there have not been conversations specific to that item but could be discussed in the future
Mr. Mike Polisky, Deputy Athletic Director for Northwestern stated that Northwestern University could open presale tickets to Evanston residents. Have done some general activities and is very excited to do something specific. There will be a limited number of events over a 2 year time frame. Northwestern University met with staff, the alderman, and residents and has added a sunset provision to the original request. Northwestern would like a chance to show the ability to hold the events.
Mr. Dave Davis, Executive Director of Neighborhood and Community Relations for Northwestern University, stated that Northwestern has worked with residents and will continue to do so. Northwestern has been empathetic to concerns and has made
Page 7 of 11 Plan Commission Minutes 8/7/19
Page 41 of 92
P1. Page 506 of 574 DRAFT- NOT APPROVED
changes. He added that they are respectfully requesting a favorable recommendation from the Plan Commission.
Chair Lewis opened up the hearing to questions from the Plan Commission.
Commissioner Goddard stated that with the reduction in maximum number of attendees permitted will parking be able to be contained within the existing parking lot. Mr. Polisky stated that in Welsh Ryan Arena, there will likely be less than 7,000 attendees due to stage setup. There are roughly 2,000 parking spaces between the east and west lots. Basketball games have sold out before. There are also Uber and Lyft services available. Northwestern would be willing to open lots for free to ease neighborhood parking issues. There is a 12% ticket tax that Northwestern pays and 4% amusement tax. Would be open to amending that to be beneficial for the City.
Chair Lewis stated that there is currently shuttle service offered for football games and asked if Northwestern would be open to providing that service for this use. Mr. Polisky responded that they would be open to trying that if it would alleviate concerns.
Commissioner Halik inquired if additional events would be added. Mr. Polisky stated beyond current events, 6 single day events and one multi-day event would be permitted. A tennis tournament was the impetus for the request.
Commissioner Sloss asked if there is any data based on previous events on the economic impact to local businesses. Mr. Polisky replied that the impact would be different with different events. He cannot confirm what specific acts would be secured and it is difficult to obtain exact data on attendees who visit businesses or stay in local hotels.
Chair Lewis stated that the request for a liquor license at the arena is not an issue reviewed by this body.
Commissioner Isaac asked how many events are currently at Ryan Field. Mr. Polisky responded that in addition to the 7 home football games, there is a “Meet the Team” event, Randy Walker 5K Memorial Run, and a community movie night.
Commissioner Halik asked if this doubles the amount of permitted events that have more than the number of available parking spaces. Mr. Polisky responded that there are roughly 18 basketball games held in Welsh –Ryan.
Chair Lewis confirmed that the proposed amendment does not discriminate against facility with regards to maximum number of attendees. Mr. Mangum responded that this applies to events within facilities in the U2 District.
Commissioner Dubin asked if the applicant had talked to the Parking Division regarding
Page 8 of 11 Plan Commission Minutes 8/7/19
Page 42 of 92
P1. Page 507 of 574 DRAFT- NOT APPROVED
metering in the neighborhood. Mr. Polisky responded that Northwestern staff has been speaking with City staff as well as with the Hospital, Northwestern Police, Fire Department and Emergency Services to ensure right ways of traffic mitigation. He added that the City recently initiated changes to the meters for some adjacent streets.
Commissioner Isaac asked how often does more than one event with more than 500 people occur in one day and if the applicant had contemplated that multiple events may happen in one day. Mr. Polisky responded that Northwestern typically does not have the staffing to hold multiple events in one day. Typically avoid multiple events on football game days. Some sporting events may happen on the same day but not to the extent that causes a lot of traffic. Men’s basketball games (held in Welsh-Ryan Arena) are the most traffic generating games. As a possible example, Northwestern may have a Friday night event, have that taken down, and then prepare for an event the next day.
Commissioner Halik inquired if Northwestern has considered a parking garage on the west parking lot. Mr. Polisky responded that he is not sure the neighbors would like that option. Have worked with Canal Shores to find additional parking; do provide shuttle service from other campus parking garages.
Chair Lewis then explained that neighbors within a certain radius of the site are able to submit a request for continuance of this agenda item and reasons why a request could be submitted.
Ms. Judy Berg stated her request for a continuance and presented her written request. Several other people expressed intention to submit requests.
Mr. DuBose stated that it would be beneficial to gather all of the requests to be submitted.
Gary Kull stated his request for a continuance explaining that he did not receive notice and did not have adequate time to prepare a response to Northwestern’s presentation.
Laurie McFarland stated that many residents did not see the revised proposal as it was presented two days before the meeting and were told there may be additional revisions. Residents wish to show effects on businesses and the surrounding community.
Mr. DuBose then cited Article 13 (E) of the Plan Commission’s Rules and Procedures regarding who is able to request continuances and the purpose of them. He confirmed that the distance requirement applies to residents north of Isabella. He asked that residents state that they wish to rebut testimony that has been presented.
Chair Lewis confirmed that the item would be heard at the August 28, 2019 meeting. Ms. Jones stated that the regular meeting is scheduled on September 11, 2019; the August 28th meeting is a special meeting that will occur at the same time and location.
Page 9 of 11 Plan Commission Minutes 8/7/19
Page 43 of 92
P1. Page 508 of 574 DRAFT- NOT APPROVED
Chair Lewis opened the hearing up to comments from the public. A total of 6 people spoke with the following comments: ● Lynn Troutman stated there has been conflation of events and locations, that there will be 6 or 7 events of a different nature which potentially changes effects. She also does not want the risk of events changed from Welsh-Ryan Arena to Ryan Field and asked why the property is being rezoned. Chair Lewis stated that the property is not being rezoned. ● Mark Sloane of the Central Street Neighbors Association stated that the Alderman should be here on behalf of residents and that when he was on a City Committee, no items were heard in August. Asked if information could be provided on the special events and that it is clear they could be anywhere in the U2. He then asked what the Special Events Committee is and if only the multi- day event would be approved by Council. Ms. Jones stated that the Committee is a staff Committee not an elected Committee. The special events could be reviewed by Council or the Special Events Committee. Mr. DuBose added that the Council approves many special events. He will include the list of events that the Council approves. Mr. Sloane expressed that the proposed change is changing the nature of events, not the number of events. ● **Andy Berman asked for clarification on how many additional events have been put on under the current code, why Welsh-Ryan Arena is not named instead of 7,000 attendees and if legal counsel was used in that decision. Mr. Polisky responded that there is usually one additional event. There was a recent student run concert with Carly Rae Jepsen. Dave Davis added that using 7,000 attendees was more consistent with the current language within the code and did not want to create any issues with stating a specific event, would be open to amending code to read as an indoor event as mentioned by Commissioner Isaac. ● Yvi Russell inquired if there would be notice for the August 28th meeting. Chair Lewis responded that since this item is being continued there would not be additional notice sent out for the next meeting. ● Matthew Grayson asked if any income would be obtained from television rights and if any effort would be made to ensure no conflicts with City events. Mr. Polisky stated that he was unsure about the additional revenue streams and television rights and it would likely depend on the type of the event. Would expect revenue from ticket and concession sales. Northwestern would like to coordinate as much as possible with the City and do whatever they can. ● Joyce Weinzbizki asked if Northwestern would host their own type of food as a lot of money is not seen by local businesses. Mr. Polisky stated that concessions would be sold as is currently done and he has heard from local businesses that many attendees patronize the area restaurants. ● Andrea Verseny asked if there would be any restrictions placed on set up and cleaning. Mr. Polisky stated that the University would abide by the 11:00pm noise ordinance and that an area has been carved out for additional storage. The University would work to coordinate and ask that clean-up and set-up
Page 10 of 11 Plan Commission Minutes 8/7/19
Page 44 of 92
P1. Page 509 of 574 DRAFT- NOT APPROVED
happen at more appropriate times. Chair Lewis then stated that the noise ordinance does references a morning time.
Commissioner Isaac made a motion to continue this item to the August 28, 2019 Plan Commission meeting. Commissioner Goddard seconded the motion. A voice vote was taken and the motion passed, 6-0.
Ayes: Dubin, Goddard, Halik, Isaac, Lewis, Sloss Nays:
4. PUBLIC COMMENT
There was no public comment.
5. ADJOURNMENT
Commissioner Goddard made a motion to adjourn the meeting. Commissioner Isaac seconded the motion.
A voice vote was taken and the motion was approved by voice vote 6-0. The meeting was adjourned at 10:48 pm.
Respectfully Submitted, Meagan Jones Neighborhood and Land Use Planner Community Development Department
**Please note a Scrivener’s error made on page 10 was corrected on 9/6/19 after the Plan Commission approved the minutes on 8/28/19.
Page 11 of 11 Plan Commission Minutes 8/7/19
Page 45 of 92
P1. Page 510 of 574 P1.
:?- Page 46 of 92 ..!$i&*--i9;—--rI---———:_-h.,-.1 ~m:''-
Impact of the U2 Zoning Text Amen ment (Item #: 19PLNDOO32) on Residents in the Surrounding Neighborhood
Presented at the City of Evanston Plan Commission Meeting on September 11, 2019 Page 511 of 574
. ___.L_.-J_____.:__ Page 512 of 574
.1 Y: ...Y » V I...... n _r—.. 1...: 25% 1. . . .n .11 u.:.:_ ...._.c :3: E. ...: : J a ,..T 1 mi. W4...... 5 P x ‘or. - |vL.I. 199} 0179.‘41...... 0 ;.u: q.\ .. _». . am 1:>uJ,sIp% BuguozH. zn aq1;oJLL .. .|I. _i._=p ... . an . . an.... ._ V1 , _~ aqn,LuoJ; S33uEJ,Sl(]I — 1 J913u.l!J3d _ .3. w?n?. V....J.?..L..€u J,uau.IpuauJe 1x91 pasodmd:_..__.;..;...... w“.f.. ._.?.:. aqn,» Bugsoddo uogmad35%.. Lu ... —u). e pau?gs eaJe sgqa,ug suosJad $9 1 .3..._:_v2? (?ulpeqs Mouazk)sawoq A|ILue; . C a|BuIs 9; Y seq 83.18 |El1U3plS3J uJa1saMLp,JoN-Amqsv.3. sJoqq8gaN uJa.1,saMquoN- Page 47 of 92 P1. P1. Page 48 of 92
- Chicagos g en earn Page 513 of 574 Page 49 of 92
P1. Page 514 of 574 P1. Page 50 of 92
BreslinCenter Michigan State
° Distance to c osest sing e- am: . ' . V .\ T M .....aJ.\1<1 . ‘ ' e. In , 5. home = 1,000 feet
. 1 x _ $1,./a? p ‘N _.. ., V‘ . _ ..2 . 7., T._ .%t«b..‘?ll,’.1 g; ' Ample off-street parking 1 II 4,“: ..\ ... I . EL \ . . , I _ . . a ’ - .1 H.new _..( Numerous 4-lane access roads u /.x 5» ' . all./ _ ur \f 1\||.II ‘ z . . rd. «K / 1} I < ._ - ——/ 2 / No need V\ '/>,’f for vehicles to enter X l L; residential neighborhoods . ‘
vl Page 515 of 574 Page 516 of 574
euaq p|aq slua/\a 1g_J,oJd-Jo;0N
spooqJoqL|8Iau | _ Ja1ua on,sapgqa/\ Jo; pea
Bupped 133.115-}}0 a|dLuv
spew ssaoae aue|-17 OMJ_
193J0S0'1Z= QWOH MIUJEJ.-3|3U!Sxsasop 01 a3ue1sgc|
(ue?gqagw)J31U3’_') Ja|sgJ3 Page 51 of 92 P1. P1. Page 52 of 92
XfinityCenter (Mary and
- Distance to closest single-family home = 1,220 feet
° Expressway and 4-lane access road
° Ample off—streetparking
- No need for vehicles to enter residential neighborhoods Page 517 of 574 Page 518 of 574
spooqmqq?geu |egJ,uapgsaJ Ja1ua o1 sapgqa/\ Jo,1paau 0N .
Bupped 1aaJ1s-go a|du1v . .. ‘ I, spec; ssaoae auel -17pue Ae/vxsseudxa01 1ua:>e_fpv. -.
199} 009'I = 9‘-U0‘-I A|gLue;-a|8ugslsasop on,a3ueJ,sIq . ~'1as:/125:: (E)|SBJSN) EUBJV)|UEQ 3|3EUU!d Page 53 of 92 P1. P1. Page 54 of 92
Rutgers Athletic Center Rutgers
nce to closest sing e-fam! ome = 1,600 feet - Two 4-lane access roads - Ample off-street parking
- No need for vehicles to enter residential neighborhoods Page 519 of 574 Page 520 of 574
spooqmqq?gau |egJ,uapgsaJ .Ia.1,ua 03, sapIqaA Jo; paau 0N
BuI>|Jed133.115go a|dwv
EUBJE ;o sapgs 9 uo spec; ssaaae aue|-17
139} 000’Z= 9W0‘-I Auuxe;-ag?ulsrsasop on,BDUEILSI Page 55 of 92 P1. P1. Page 56 of 92
KohlCenter (Wisconsin
° Distance to closest single family home = 2,050 feet - 4-lane access roads on 2-3 sides of arena
° Ample off-street parking
° No need for vehicles to enter residential neighborhoods Page 521 of 574 Page 522 of 574
spooqmqq?gau |l’-3!1U3p!S3J Jenue 01 saplqa/\ Jo; paau 0N . Bunped 1aaJJ,s—;;o a|du1v . spec; ssaoae auel-179|d|J,|l’Iu.l pue Ae/v\ssaJdxa Aqpapunouns . 199} 0ZE'Z= 9‘-U0‘-I Auuue;a|3uIs Jsasop 01 33UE1S!(] . - ..\‘
3'.|.E'.1SONO) J3I|.U3’_')U!3I|.SU3].1O 3 Page 57 of 92 P1. P1. Page 58 of 92
nce to closest sing e- am: y ome = 2,500 feet
° 4-lane access roads on 3 sides of arena - Ample off-street parking
° No need for vehicles to enter residential neighborhoods Page 523 of 574 Page 524 of 574
spooqmqq?gau |eg1uapgsaJ Jame on,sapgqa/\ Jo; paau 0N SuI>|Jed1aaJ1s-go aldwv
EUSJE sq), Sugpunouns speoa ssaaoe auel-17agdmnw
139} 008'Z= 3W0‘-I Auweyal?ugs 1saso|:> 01 a3ueJ,sgc| S|0U!|||) Page 59 of 92 P1. P1. Page 60 of 92
Bryce Jordan Center (Penn State)
- Distance to closest single-family home = 3,570 feet - Multiple access roads /I - Ample off-street parking
- No need for vehicles to enter residential neighborhoods Page 525 of 574 Page 526 of 574
auupEOJ|§l?J pue Ae/vxq?gqJo_feLuAq3[}}EJ1 1uaAa uJoJ; pa13a1oJdpue paleuedas sgpOOL|JOqL|3 [3N Bupped 133115-go a|dwv
SPEOJSSBDDE SUE]-17a|d!1|n|/\| o 19340001 ugLp,g/v\sawoq A|gwe,t-a|SuIs[<5 1; 051 = awoq Auwe; .,.k -a|8u1s J,sasop 03, aouelsgq
(e/v\o|) aAa>|MeH-Ja/ Page 61 of 92 P1. P1. Page 62 of 92
- Distance to closest single-family home = 320 feet - 79 single-family homes within 1000 feet - 4—lanearterial access road adjacent to arena
- Some vehicles could enter the adjacent neighborhood (but there is ample off-street parking) Page 527 of 574 \ r 1 a T lawn: a.W: 2.... .51. J v s: . I .. . : Page 528 of 574 ..1...: m. 1
spootpoqq?gau | g uapgseu ug)|JEd pue Ja1ua A|aun,noJ sapgqa/\
Bupped 139.115-}}O pue spec; ssaaae pa:1u.ug|A|auJaJ1x3
EUBJE 40 193} 0001 uumms?uapunq |eI.1,uapgsaJ Auwe; g1|nLu
eueue ;o 1aa;oooI uIL|J,[M sawoq Auwe;-a|Bugsgzz
19940117= awoq Auwe;-a|Sugs 1sasop 01 aauegsgq . (UJ31S3ML|1JON) ue/S3-qs|a/v Page 63 of 92 P1. P1. Page 64 of 92
U2 Zoning District (Northwestern)
- 520 single-family homes within 1000 feet of U2 zoning district - 21 multi—fami|yresidential buildings within 1000 feet of U2 zoning district
.5. ~ mt:4 .. 1,. ... . KAT». Page 529 of 574 Page 530 of 574
uogmad Bugsoddo aqn,pau?gs euaq s1uapgsaJ uozsue/\3 3175
13!J1S!(] 100:| Page 65 of 92 P1. P1. Page 66 of 92
Summary of Residential Proximl'tyf or Big 10 Arenas
Number of Single-Family Residences Name 0 University Within 1000 Feet Nebraska Rutgers B Indiana Wisconsin Ohio State Minnesota Illinois enn State Michigan State Michigan From the perimeter Maryland of Welsh-Ryan Arena Purdue Iowa Total (Excluding NU) 110 (total) From the perimeter Northwestern 225 of the U2 zoning Northwestern __ SSE) Page 531 of 574 Page 532 of 574
.....n.
.- an . ‘E, ' GS513/GSOL
I- . E I : i. A r, .v . _. W9 _ aaeds Bupped .l9¢| swag euax ..3 : 4...... v II... E 514 ;.... I: 1. mm, r I2: » an .I ..‘ . H 3.... t -I, 7. A! I la -I . _ .l
101 uekg zsamug saaedswe
£517
(555%) save Supped eua UEAH-q:>|a/v\,1oJaqw Page 67 of 92 P1. P1. Page 68 of 92
Summary of Parkingfor Big 10 Arenas
pacity Number ofArena Number of Off‘ me of Univ asketball Paved Seats Per Parking Street Parking Spaces ames S ace Nebraska 15,500 8,300 Rutgers 3,000 4,300 Indiana 17,222 5,300 Wisconsin 17,142 5,000 Ohio State 18,809 7,000 Minnesota 14,525 12,300 lllinois 15,500 5,100 Penn State 15,251 Purdue 14,804 4,800 Iowa 15,056 5,800 Michigan State 15,000 4,700 Michigan 12,707 4,100 Maryland 17,950 6,100
Northwestern Page 533 of 574 Page 534 of 574
(seuam szuodsJo; apoo Buguoz |e3gd/ K1) 3pOj 1U3l.UdO|3I\3(]pUE'| p3!].!Un
(saaeds Supped genne)
Bupued
sog1e)_.|Supped 9| Page 69 of 92 P1. P1. Page 70 of 92
AnalysisofP ar k'ng Lot Capacity for We I h-RyanEvent
If 100% of Attendees
Attendees Per Event 7,039
Parking Spaces Needed 2,346 - 2,707 (2.6 -3 persons/vehicle)
Parking Spaces Available 1,359 (East + West Ryan Lots)
Parking Space Deficit 987 - 1,348 **
** Assumes that every parking spot is available for event patrons. No spots would be used by hospital employees, residents, contractors, NU staff/faculty, etc. Page 535 of 574 Page 536 of 574
':)J,a ’/mnae;/;;e1snN ’s.IoJ,:>e.IJ,uo3’sJ,uapgsaJ ‘sea/koldlua|e1gdsoq q p|noM s1o 5 'SUOJ2|.Ed1uaAa Jo; a|qe|geAe sgmds Bupped /Us/xa 1eq1 sawnssv
8V€"[ ' L86 xpgaq aaeds Supped
(S101uelkazsa/v\ + lseg) agqeuenv saaedsSupped
(apgqan/suosJad 5-9'2) 99'['Z " LL8"[ ' papaaN saaedsSupped
(oueuaas asca 1saq) (oucuaas asea J,s1oM) szuang 01 anua swan; o1 anyq 5°°PU911\1J0 %08 JI saaPU911V4° %00I JI UBA3-L|S|3/V\Jo; A1pede3 Supued sgsA| Page 71 of 92 P1. P1. Page 72 of 92
Analysisof Par k'ng Lot Capacity or e s - yan Event
Parking Ratio = 2.6 Par mg a Io=3
Parking Spaces Available (East + West Ryan Lots) Maximum Number of Event Patrons Until Parking Spaces Are Full Page 537 of 574 Page 73 of 92
P1. Page 538 of 574 P1. Page 74 of 92
Proposed Events in U2 District With 3,500+ Attendees
° NU Men's Basketball (18 games; 18 days of events
° High School Graduations (3 graduation ceremonies; 2 days of events
° NU Graduations (6 graduation ceremonies; 2 days of events
° (p D 13 da s of events
TOTAL(35 days of events)
NOTE: Excludes 7 football games with attendance up to 47,130 each Page 539 of 574 Page 540 of 574
kg‘. - C» a?essed 1-: .;-. 3"" r MOJJBU ;o asneaaq paJ,e/\a|a sg _‘.. .5 awn6SUOdSSJapgqa/\ A:>uaBJau13.3.
A|uo aue| a|BuIs Jo; a?essed.3. F. "5- sapls qJ,oq uo Bupped |EI1UaplS3J l.|1lM J,aa.u,s Aem-o/vu,MOJJBN.3. — :1
(Amqsv :>o|q 0012) p0OL|JO q8gaNBugpunouns aqi Page 75 of 92 P1. P1. Page 76 of 92
The Surrounding Neighborhood (Central Street)
- Single lane in each direction - Busy east—west road with parking on both sides \ - Used by emergency vehicles from 2 fire stations and for access to Evanston Hospital emergency room
° Used for daily work commute by employees at Evanston Hospital, small businesses, Page 541 of 574 Page 542 of 574
ueku-qs|aM mm; euaJv uelku-qs|a/v\ 133; | JEBN 1aa.us genus;
(5102 '2 aunruo saapuane ooo'g.,) UEAH-L|S 1uauJa3uawuJo3 3 J3 Page 77 of 92 P1. P1. Page 78 of 92
Additional Impacts to Immediately Abutting Neighbors
'1' Loud noise disturbances during event set—up and clean-up (often before 7 am and after 11 pm):
- Motorized carts, tractors, and trailers :T‘1=i- - Vehicle backup beep-alarms I-lIrIq- ° Idling buses *- - Weekly porta-bathroom servicing (deafening vacuums at 2-41?:-4am)
I ‘-‘--I
lug.)-.|u Page 543 of 574 Page 544 of 574
an|eA A1.1adoJd10 uoI1epaJdap .Iaq1.In1 a|qIssod . ':>1a'1U3LUdgnba punos pue ’oap§A '3uI1q8I|’saBe1s;oSuIpeo|un / Bugpeo]'9 I)sen:/u1ae UMOpJE31 pue ’aBeJo1sdmas 01 ampsmqq?gau I-)1B[p3l.LILU|uo 13EdU..|I|ensu\ pue sa3ueq.m1sgp asgou |euoI1Ippv . puaue pgno/v\ SPMOJDa?nq 311101 anp saauanbasuoa alqepgo/\eun aq p|noM uoneuunauqnd pue 'Ja11g|’asIou ’:)g;1eJ1uemsapa1231pooqmqq?gau paseaJ:>u| . sag1[n:>g;._upBupped pue su.1ef:>g;1eJ1a|qe1:>Ipa.Idunpue 'asua1ug ’1uanbaJ1axow . zasnea p|noM (sasn A1eJoduJa1)s1ua/\a |B!2)J3l.uUJO3/ |euogssa1oJd10 sAep 51; Bugppv .3 . uoppun; .l[3q1 me me: 01 sapgqa/\ Aauamawa Jo; 1|n:>g;1gp mom 1; Bu1>|eu.IAqpasgmmdwoa sus1uapgsa1 10 A1319;. sawoq Jlaql JBBU Bupped um; s1uap1se.I Bumudap 'S133.l].S pooqmqqsgauuo >peduaq1 SJO1E133dS. 13.9115|eJ1ua3 uo sAe|ap ssedAq01 M101 s1aa.I1s apgs |E!1Ll3plS8J asn A|Je|nBa.Isapgqa/\ snoJau.mN . spueua au|1noJ Lumyad o1 s1uapgsaJ Jo1sAe|ap1ue:>g1guB|spue a|qeuoseaJun sasneo uog1sa3uo331112113Ll.I3J1X§| . ue/Ra-qs|a/v\ 1e SpM0.l3 a3Je| L|J,lMs1ua/xa p3'.]J,[LUJBd q1IM Suldoa 1|n:)|11Ip Man 2 seq Apeaue 51; pue pootpoqqsgau aql .3
;o A1g|en‘o|eg1uapgsa3 Jpagv sJ,uaA3 ueA —qs|a/v\ /v Page 79 of 92 P1. P1. Page 80 of 92
Title 6-15-7-1 of Evansto oning o e
”The U2 university athletic facilitiesdistrict is intended to permit
the utilization ofuniversity facilitieswithin the district in a
manner that is compatible with the surrounding development,
which is predominantly residential /1 Page 545 of 574 Page 81 of 92
P1. Page 546 of 574 Page 82 of 92
P1. Page 547 of 574 Page 83 of 92
P1. Page 548 of 574 P1. Page 84 of 92
A
no33::_2 noznmnn
_u.m.93.3” sxm._....um0:29 SxmES nozmacm8 3? 3 Em zm?ruo?.::mu=saw E3. Sm Em Emsm.sxm s6=E E3 8...no::.::m 8 Eula §.E Emwmmiman...
_._m0: 26 cmEm mu_.ouomm_m8 Em Q2 <0: n_mm_._<€253 3.. 2%. mD:mm:o_.: >33; <9: uwouommnEmammm3 awn»:3 no3u_.o3_mmmE. um:3 mamqmu:-.I-I- |"|.|.l-I.|.I -—-f——I I Page 85 of 92
P1. Page 550 of 574 P1.
I--I Page 86 of 92 '.':.J II - II‘
mm.no_.:.=Q 5:: onrmnQ2 m052.92 <<_.._m..W3 :5 m«3m:_m: _u_n_._.n§...._%§_ m?:=._nm:$
_u.3 0:29 sxmmaze&<Dcmmzoan>. _m2.5 mn_._ma_.__m2 Em uaouommamn? :mcm__<%.§a__§_ _u-. rn"'§-I-___-—.-I-.-I.|.|.. Page 87 of 92
P1. Page 552 of 574 Page 88 of 92
P1. Page 553 of 574 P1.
' Page 89 of 92 Il:_.a.., p‘-Ji.'_-r‘-.".u-n. ';'-'-1- . "W_ -. .
M.mczmmao_.>cmm iii“ u.w0:29 g amnoiimaamm3 ..:nEmma 25mm» u3S.u..e=an n uaoi :22; 2.3 in Ed -245 .55: noE.o_=3:w= :n.n_.uo_.u:3 E 33.. om22 3:3» n_m.._mm.Eo_.__..._<9... mmm3... was». $55 2 3.3 u.¥ Dconm..Eo..__n_ommam_u«m-mm_mm_3_u_2023.55:::3 95:8 _.mPage 554 of 574 u_._3m..=I I I. It I $111 I I I _ Page 90 of 92
P1. Page 555 of 574 Page 91 of 92
P1. Page 556 of 574 10/17/2019 CITY OF EVANSTON Mail - Re: Proposed zoning ordinance text amendment pursuant to City Code Title 6, Zoning, to section 6-15-7-12…
Meagan Jones
Re: Proposed zoning ordinance text amendment pursuant to City Code Title 6, Zoning, to section 6-15-7-12 of the zoning ordinance to revise permitted uses of the U2 District 1 message
Christina Brandt Fri, Sep 6, 2019 at 5:06 PM To: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]
Expanded distribution list
On Fri, Sep 6, 2019 at 4:59 PM Christina Brandt wrote:
To the City Council and Plan Commission, re. Proposed zoning ordinance text amendment pursuant to City Code Title 6, Zoning, to section 6-15-7-12 of the zoning ordinance to revise permitted uses of the U2 District
I am writing to you as a 14 year 7th Ward resident and parent of school-aged children. I am strongly opposed to granting Northwestern University’s request to allow non-collegiate, for-profit events in the Welsh-Ryan Arena and surrounding structures. I am writing also as a previous resident of other Big 10 communities which include: Madison, Wisconsin, Iowa City, Iowa, Ann Arbor, Michigan, and now Evanston, Illinois. By far the most contentious and least cooperative relationship between city and university is here between Northwestern University and the city of Evanston. There is a long history of actions by the university which were suspect and not transparent. As a result, the request for a zoning amendment unearths deep suspicion on the ultimate goal of this request far exceeding their stated purpose.
I would like to make it clear that I am not writing in opposition to the city finding alternate ways to generate revenue. However, the zoning ordinance text amendment has direct negative impacts to the residents living in close proximity the NU property. The parcel in question is bordered on all four sides by neighborhoods. These neighborhoods include residents of all ages seeking to enjoy their streets, sidewalks, and parks with a known and acceptable noise level, traffic pattern and visitor to resident ratio. A change in zoning dramatically impacts the quality of life for city residents and poses safety challenges with crowds, and possible introduction of alcohol under separate topic. The zoning restrictions provide the tax paying residents some degree of certainty in trusting the manner of use of the land around their owned property.
There are no benefits to cite that offset the negative impacts on the Evanston neighbors. Please vote NO to amend the ban on commercial for-profit events in our neighborhood for the following reasons:
Parcel in question borders neighborhoods on all four sides Other Northwestern owned property which is not bordered by neighborhoods on all sides should instead be explored (Lakefront property possibly?) The language of their proposal does not specifically identify Welsh-Ryan Arena and opens a risky precedent for larger events at other venues such as Ryan Field. The language in their proposed amendment asks for a two year trial period which does not allow for resident /public comment after the two year period. A plethora of entertainment options already exist for Evanston residents:
City Centers theatre productions Evanston SPACE music events Chandler Lawn events Northwestern theatre events Evanston ROCKS Mudlark Theatre ETHS Theatre ETHS music concerts Evanston Symphony Northwestern symphony events Chicago in close proximity Ravinia in close proximity Concerts in the parks Seasonal festivals
If you choose to support the change in the zoning ordinance, then please be prepared to explain why you voted differently than your predecessors on this immensely important matter.
Kind regards,
Christina Brandt
https://mail.google.com/mail/u/0?ik=4ec545897d&view=pt&search=all&permthid=thread-f%3A1643965413345241789&simpl=msg-f%3A16439654133… 1/1 Page 92 of 92
P1. Page 557 of 574 Memorandum
To: Honorable Mayor and Members of the City Council CC: Members of the Economic Development Committee From: Paul Zalmezak, Economic Development Manager CC: Johanna Leonard, Director of Community Development Subject: Ordinance 125-O-19, Amending Portions of City Code Sections to Remove the Requirement for Business Licenses and Implement a Business Registration Program Date: November 11, 2019
Recommended Action: The Economic Development Committee and staff recommend adoption of Ordinance 125-O- 19, Amending Portions of City Code Sections to Remove the Requirement for Business Licenses and Implement a Business Registration Program, amending Title 3, "Business Regulations", replacing business licenses with a business registration program for all for- profit entities operating. This will include the addition of home-based and state licensed businesses to the registration program.
Council Action: For Introduction
Summary: On September 26, 2018, Economic Development Committee supported a recommendation from staff to update the City Code to replace current business licensing requirements for non- food establishments with a business registration program.
The business registration process will serve multiple purposes: • Improved communication with businesses has proven difficult in the past in cases of emergency (e.g. crime alerts, snow emergencies). The City does not currently have contact information for all commercial businesses. • Building occupant data (e.g. owner contact info, total # of employees, etc) is also important to Evanston Police and Fire in the event of an emergency, and to make sure that buildings being occupied by our businesses are in safe working conditions. • Notification of opportunities for local procurement opportunities to support M/W/EBE goals.
ED1. Page 558 of 574 • A complete list of businesses will allow the City to analyze data about commercial real estate and local businesses to better serve economic development planning.
In summary, all for-profit commercial entities, including home-based businesses, will be required to register on an annual basis. The registry will include business owner and property owner contact formationinformation, and number of employees, detailed business in classification, and MWEBE status. Receipt of payment will be used as proof of registration. This will provide participating businesses with additional documentation of their location and activities that can be used to support membership in professional associations or efforts to obtain insurance or certifications, such as DBE/WBE/MBE. Many home-based businesses have requested such documentation from the City in the past.
Staff estimates there are approximately 4,400 commercial enterprises in Evanston, not including the estimated 500 food establishments. Staff is currently licensing 520 businesses generating $53,000 in fees. Based on current State of Illinois data, staff estimates the potential for an additional $130,000 in registration revenue with the proposed changes, as summarized in the table below.
Projected Revenue from Evanston Business Registry Est. # Entities 2018 Fees 2019 Est. Fees * Current Entities 520 $ 53,000 $ 26,000 Licensed Add'l Professional 1,400 $ 0 $ 70,000 Services Add'l Home Based 2,500 $ 0 $ 62,500 Total 4,420 $ 53,000 $ 158,500 * Actual to be determined based on accuracy of State of Illinois database. This estimate reflects higher end of range based on $50 average fee for non-home based, and $25 for home based Staff has and recommended has Code to changes its the of review completed City accommodate the proposed business registration process. The business registration process will be implemented with notices following Ordinance adoption, to be mailed in December 2019, with 2020 business registration payments due January 31, 2020. A brief summary of changes include: 1. Replace "business license" with annual business registration: • All for-profit entities would be required to register and pay an annual fee, including home-based businesses and occupations licensed by the state; • "Pop-up" retailers occupying a space for 90 days or less would be required to register and pay the registration fee per each 90 day period. • Food Establishments continue to be licensed exclusively by the Health & Human Services Department. • contractBuilding Inspection & Building the by ors to be continue registered Services Division (home-based or out-of-town landscape contractors would still register). • Fire/Life Safety Inspections will continue to be required for new businesses operating in commercial space, as well as changes of ownership.
Page 2 of 17
ED1. Page 559 of 574 1. The proposed simplified business registration fee schedule is summarized in the table below: Business Registration Fee Schedule Description 2020 Current Home based business $25.00 $25.00 registration [1] Non-profit enterprises $0 $0 Landscape contractors not maintaining a place of $ 50.00 $40.00 business within the City Evanston based -profit for $50.00 $75.00-$250.00 [2] businesses Pop-up Retailers (less than $25[3] N/A 90 days in operation) Fire, Life, andSafety $150.00 $150.00 Inspection(s) fee [1] City Council approved home based business registration in 2008 Ord. 23-O-08. The fee established in 2008 was $25. [2] Based on gross floor area [3] Per 90-day period
3. Eliminate annual sign permit renewal fees o Eliminating annual sign fees will minimize wasted postage and staff time, and the loss of annual sign fee revenue will be offset by increased revenue from the expanded business registration program. o Approximately 800 annual sign renewal fees generates approximately $25,000 annually. o New sign permit process and sign installation permit fees would remain the same. o The average annual sign fee is about $12, and is invoiced and mailed separately from the annual business or food establishment license. o Issuing these notices and manually processing the payments as they come in takes a great deal of staff time in both community development and the collector’s office. o The administration of the invoices and payment collection actually slows the actual enforcement of sign regulations and graffiti removal as it is administered by the same individual.
Business Licensing in Comparable Communities: Business regulation practices and fee schedules vary widely throughout the Chicago area. Like Evanston, most communities with business licensing requirements assess fees based on some combination of square footage or specific type of use, often with similar exemptions for nonprofits and state-licensed occupations. Regulation of home occupations also varies; although many communities don’t require any fees or licensing for home-based businesses, there are several jurisdictions that do have annual registration or licensing requirements, including Schaumburg ($95/year), Palatine ($27/year), Park Ridge ($35/year) and Waukegan ($100/year).
Page 3 of 17
ED1. Page 560 of 574 Skokie and Highland Park were of particular interest as neither requires a general business license at the municipal level. Skokie requires every user of commercial space to obtain an annual occupancy permit, with a $75 annual fee. An additional “business license” is only required for specific uses, including pawn shops, massage establishments, and bowling alleys (among others). Highland Park requires an annual business registration ($35 annual fee), with additional licensing requirements for food establishments and places of public assembly. Because these requirements aren’t “licenses,” these communities are able to include businesses that are licensed by the state. Background: The Community Development Department currently issues general business licenses, which are required for businesses operating in commercial space in Evanston. As part of the process for licensing new businesses, staff reviews business license applications, and the fire department conducts a Fire, Life, and Safety inspection of the business location before a license is issued. Under the current code, nonprofit entities, home-based businesses, and occupations licensed by the Department of Financial & Professional Regulation (IDFPR) (i.e. medical doctors, lawyers, accountants, cosmetologists, etc.) are exempt from City business licensing. Any business involving retail, storage or manufacturing of food for human consumption is licensed as a food establishment by the Health Department, which takes the place of a general business license. General business licenses are renewed annually, with fees determined based on square footage or specific use as summarized in the following table: Existing City of Evanston Business License Fee Schedule License Category Annual Fee # of Active Licenses in 2018 0-3,000 s.f. $75 318 3,001-10,000 s.f. $150 64 10,000+ s.f. $250 41 Auto Repair $150 44 Pet shop/kennel $94 1 Resale or consignment shop $94 5 Drycleaners $50 21 Pawn Shops $125 1 Movie theaters $0.95 per seat 1 Out-of-town or home-based $40 22 Landscape contractors Total $53,000 518 In addition to the approximately 500 general business licenses currently active, the Health Department also manages approximately 400 food establishment licenses. The definition of what constitutes a business requiring a license in the relevant section of the City Code excludes government entities, home occupations, tax exempt organizations, and any businesses or occupations exempt from City licensing pursuant to state or federal law. In practice, this exception has been interpreted to apply to any business or profession licensed by the IDFPR, effectively exempting many users of office and retail space from City licensing, especially professional services attorneys, firms ls, (medical accountants, professiona engineers, realtors, etc.) and personal services businesses (spas, salons, barber shops, etc.). As a result, when exempt businesses open in Evanston, particularly in office space, it isn’t uncommon for them to have little to no interaction with the City; there’s no zoning review
Page 4 of 17
ED1. Page 561 of 574 or fire inspection unless the space is being renovated. The proposed changes will address the contradictions regarding home-based businesses. Personal and professional services businesses are among the fastest-growing sectors in the U.S. economy, particularly when compared with traditional brick-and-mortar retail. Excluding these categories from general business licensing has limited the City’s ability to maintain useful data about the local business community, hampered communication between staff and business owners, and prevented inspections to ensure safe working spaces. Although there are approximately 500 general business licenses active in the City, data provided by the Illinois Department of Revenue suggests that up to 5,000 businesses are currently operating in Evanston, including state-licensed occupations and home-based ventures. Next Steps: Upon approval by City Council, staff will implement the new business registry. Invoices for the first year of registering businesses will be mailed as staff does not have electronic means of contacting all of the businesses. Staff will include an introductory letter with the new business registry explaining the new process and providing a link to a web-based business registration form. Payments for 2020 business registration will be due on or before January 31, 2020. Registration and payment will occur online with debit, credit, or electronic check, cash or check payments will be managed by the revenue office. In year two, after a successful first round of collecting business contact information, businesses will be invoiced via email, reducing postage and printing costs in addition to staff time.
Legislative History: The Economic Development Committee recommended approval (6-2) to changes to the business licencing process at its September 26, 2018 meeting.
Attachments: 125-O-19 Amending City Code to Institute Business Registration Program
Page 5 of 17
ED1. Page 562 of 574 10/1/2019 10/8/2019 125-O-19
AN ORDINANCE
Amending Portions of City Code Sections to Remove the Requirement for Business Licenses and Implement a Business Registration Program
WHEREAS, the City of Evanston (“City”), as a home rule unit of local
government as provided by Article VII, Section 6 of the Illinois Constitution of
1970 has the authority to exercise any power and perform any function pertaining to
its government and affairs except as limited by Article VII, Section 6 of the Illinois
Constitution of 1970; and
WHEREAS, a home rule unit may exercise any power and perform any
function pertaining to its government and affairs for the protection of the public health,
safety, morals and welfare, and
WHEREAS, the registration of all businesses operating within the City is
a ministerial act which is necessary for the health, safety and welfare of the residents
of the City; and
WHEREAS, it is necessary to obtain certain information from all
businesses operating in the City to provide an effective mechanism for the City to
communicate with businesses, particularly, to assist the City's Police and Fire
departments in responding to accidents, natural disasters, criminal activity and other
emergencies; and
WHEREAS, the registration of all businesses within the City will allow the
City to create a master list of businesses operating in the City which list will serve to
Page 6 of 17
ED1. Page 563 of 574 125-O-19
benefit various businesses within the community, consumers, and potential businesses
looking to locate within the community; and
WHEREAS, the registration of all businesses operating within the City
will assist the City’s Community Development Department with ensuring appropriate
land use as called for in the City's Zoning Code and to ensure the City's building
safety codes are properly followed and enforced to protect property values and the
health and welfare of the City's resident; and
WHEREAS, the establishment of the registration program proposed will
help to further the City Council's economic development goals by enabling the City to
track the health of the business climate in the City and to measure the impact of the
City's various economic development initiatives and the City's efforts to support
entrepreneurship; and.
WHEREAS, the business registration program created by this Ordinance
will be a centralized data gathering system that will capture pertinent data elements,
determined important by city staff, that will be accessible by city personnel, when
necessary for the provision of city services;
NOW BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: City Code Title 3, Chapter 6, Theaters, Shows and
Exhibitions of the Evanston City Code of 2012, as amended, is hereby further amended
to read as follows:
CHAPTER 6 - THEATERS SHOWS AND EXHIBITITIONS
3-6-1. - CLASSIFICATIONS.
~2~
Page 7 of 17
ED1. Page 564 of 574 125-O-19
Theaters, shows and exhibitions. For the purpose of providing for the licensing registering and taxing of theatricals, shows, amusements and all public exhibitions offered, operated, presented or exhibited for gain or for admission to which the public is required to pay a fee, the same are hereby divided into three (3) classes, which shall be known as the first, second and third classes as follows:
First class: All entertainments of a theatrical, dramatic, variety or spectacular character; all concerts or other musical entertainments; all exhibitions of natural or artificial curiosities, mechanical toy exhibitions or miniature engineering demonstrations where a charge is made for the privilege of operating such article.
Second class: All exhibitions of motion pictures or cinematography and all automatic picture devices or other similar devices.
Third class: Circuses, menageries, caravans, concerts or musical entertainments given under a covering of canvas; poultry shows, horse shows, stock shows, automobile shows; all exhibitions and displays of fireworks, exhibits or contests of balloons or aeronautic devices.
3-6-2. - LICENSES BUSINESS REGISTRATION REQUIRED; APPLICATION It shall be unlawful for any person to give, conduct, produce, present or offer any of the entertainments mentioned in this Chapter for gain without a license business registration for that purpose first had and obtained. For entertainment given by citizens of the City, not engaged in the giving of such entertainments as a business nor for personal gain or entertainment, the proceeds of which are for the benefit of any charitable object, no fee shall be required to be paid for such license registration.
Any person desiring to produce, present, conduct, operate or offer for gain or profit any of the classes of entertainment described in Section 3-6-1 at any place within the City shall make application for a business registration license to the City Collector Community Development, in writing, setting out the full name and address of the applicant, if an individual, and if a corporation the full name and residence of its principal officers. Such application shall contain a description of the place where it is intended to produce, present, conduct, operate or offer such entertainment and a description of the kind and class of entertainment.
3-6-3. - PREREQUISITES TO ISSUANCE OF LICENSE BUSINESS REGISTRATION (A). Examination of Applicant's Place. Upon application being made for a business registration license to register a business, as provided in the preceding Section, the City Manager or his/her designee shall make or cause to be made an examination of the applicant's premises, and if all of the provisions of this Code and other ordinances of the City relating to the giving of entertainments and the location, construction and maintenance of the premises or building where such entertainments are given are complied with, the City Manager or his/her designee shall cause to be issued a license business registration to such applicant, which license registration shall en Title entitle the licensee Registered
~3~
Page 8 of 17
ED1. Page 565 of 574 125-O-19
Business to conduct, produce, present, operate or offer the class of entertainment specified in such license Section 3-6-1 at the premises designated in the application and for the period of time specified in such license application, upon the payment of the proper license business registration.
(B). Approval of City Manager; Grounds for Refusal of License Business Registration . If the premises or building at which it is desired to offer any of the entertainments described in Section 3-6-1 hereof be not a fit or proper place and not constructed, maintained, operated or conducted in accordance with the provisions of this Code and other ordinances of the City governing and controlling such places, or if the granting of the business registration business registration license would, in the sole discretion of the City Manager or his/her designee, be contrary to the public health, safety or general welfare, such application may be denied. No business registration license shall be issued by the City Collector Community Development Department except with the prior approval of the City Manager or his/her designee.
3-6-4. - BUSINESS REGISTRATION LICENSE FEES. The fee to be charged for a license business registration to produce, present, conduct, operate or offer any of the classes of entertainment mentioned in this Chapter shall be as follows:
First Class $125.00 per year
Second Class $50.00 per year
For each seat available for patrons of $.095 per year the theater
Third Class
$63.00 per day For each circus or circus and menagerie For each concert or musical $25.00 per day entertainment For each concert or musical $25.00 per day entertainment For each automobile show $25.00 per day $25.00 per day For other entertainments, exhibits or performances
~4~
Page 9 of 17
ED1. Page 566 of 574 125-O-19
Where any entertainments embrace two (2) or more of the classes specified herein, such entertainments shall be classified and charged for as wholly belonging to that class for which the highest business registration license fee is fixed. 3-6-5. - BUSINESS REGISTRATION LICENSE CONDITIONS AND RESTRICTIONS (A). Posting business registration License. Every business registration license issued under the provisions of this Chapter shall at all times during the life thereof be made available for review. Registration certification will be provided in electronic format as a receipt upon payment of the business registration fee. Posting is not required.
(B). Owner or Lessee to Preserve Order. It shall be the responsibility of the owner or lessee of every registered licensed theater, hall or other building, being in control thereof, to keep and preserve good order in and about the premises. (C). Hours of Operation. The premises wherein the business registered licensed by this Chapter is conducted, shall close and business therein shall cease between the hours of one o'clock (1:00) A.M. and seven o'clock (7:00) A.M. 3-6-6. - FAILURE TO OBTAIN BUSINESS REGISTRATION LICENSE. It shall be the duty of every proprietor or lessee of any theater, hall or other building, where public entertainments are given, who shall not have taken out a license business registration as provided for in this Chapter before he/she permits any person to use the same for the purpose of giving any entertainment therein for gain, to obtain the license business registration herein required either in his/her own name, or in the name of the person proposing to give such entertainment.
SECTION 2: City Code Title 3, Chapter 15, Dry Cleaning Establishments
of the Evanston City Code of 2012, as amended, is hereby further amended to read as
follows:
CHAPTER 15 - DRY CLEANING ESTABLISHMENTS
3-15-2.-LICENSE REGISTRATION REQUIRED. It shall be unlawful for any person to engage in or carry on within the City the business of dry cleaning, retail outlet, or spotter as defined in Section 1 of this Chapter, without first having obtained a license registered their business as herein provided for each such establishment proposed to be conducted.
3-15-3.-APPLICATION; INVESTIGATIONS. Application for a license business registration under Chapter 15, Section 2, shall be made in writing to the Community Development Department City Collector. The application shall contain the name of the applicant, if an individual, the names of the
~5~
Page 10 of 17
ED1. Page 567 of 574 125-O-19
principal officers, if a corporation, the location of the place at which it is intended to carry on such business, together with a description of the place of business for which a license business registration is desired. A separate license business registration shall be required for each dry cleaning establishment, spotter or retail outlet carried on or conducted by any applicant wherever located in the City.
Before a license business registration shall be issued, each such application shall be approved by the Director of Community and Economic Development (the "Director") and the Fire Chief of the Fire & Life Safety Services (the "Fire Chief"), or their designees. Before an application may be approved, all requirements of the adopted building code, zoning ordinance plumbing code, and electrical code of the City, as amended, shall be met and it shall be determined the premises are safe for the purposes of said business. The Fire Chief or his/her designee shall determine that all fire hazard precautions have been taken and conform to the fire prevention ordinances (see title 4 of this code) of the City.
If the Director and the Fire Chief, or their designees, approved an application for a dry cleaning establishment, spotter, or retail outlet, then, upon payment of the license business registration fee hereinafter provided, the City Collector Director shall thereupon issue to the applicant a license registration authorizing said applicant to engage in or carry on the business of dry cleaning, spotter or retail outlet, in the place designated in the registration application license and for the period therein stated
3-15-4.- LICENSE BUSINESS REGISTRATION FEES; TERM. (A). The license business registration fees for the carrying on of any businesses as defined in Section 3-15-1 of this Chapter, shall be fifty dollars $50.00 per annum. (B). Each license business registration shall expire on December 31 in the year in which it is issued; provided, however, that if less than six (6) months of the annual license registration period shall have expired at the time when such license business registration is issued, the full license business registration fee shall be charged therefor. If six (6) or more months of the annual license business registration period shall have expired, one-half (½) of the full license business registration fee shall be charged. Registration certification will be provided in electronic format as a receipt upon payment of the business registration fee and shall be made available upon request. Posting is not required. Said license shall be posted and remain posted in a conspicuous place in the room where the dry cleaning is done.
SECTION 3: City Code Title 3, Chapter 27, General Business License of
the Evanston City Code of 2012, as amended, is hereby further amended to read as
follows:
CHAPTER 27 - GENERAL BUSINESS LICENSE REGISTRATION
~6~
Page 11 of 17
ED1. Page 568 of 574 125-O-19
3-27-1. - DEFINITIONS. The following definitions apply to this Chapter:
BUSINESS. Any individual or entity "doing," "conducting," "engaging in," "maintaining," "operating," "carrying on" or "managing" a business, occupation or for-profit activity, such terms or one or more of such terms, shall include any person who holds himself/herself forth as being engaged in the business, occupation or activity, or who solicits patronage therefor, either actively or passively or who performs or attempts to perform any part of such business, occupation or activity in the City; and the omission of one or more of these terms shall not be deemed to exclude the activities described by the other terms where such activities are in fact carried on by such person. The term business shall not include any of the following: (A) A "home occupation" as defined in Title 6, the City's Zoning Ordinance. (B) Businesses or occupations which are exempt from City licensing pursuant to law. (C A) An entity which is exempt from income taxation under Section 501 of the Internal Revenue Code. (D B) An entity which does not maintain a place of business in a building within the City, except for the following which shall be licensed registered: an entity engaged within the City in landscaping services, pesticide spraying services, lawn fertilizing or weed spraying services, pickup and delivery of laundry or dry cleaning at dwelling units, garbage or refuse pickup (E C) A governmental unit. (F D) A public utility or cable television company which is subject to regulation by the Federal Communications Commission or the Illinois Commerce Commission and which operates in the City pursuant to a franchise agreement with the City. OWNER. Any individual, firm, association, partnership, corporation, trust or any other legal entity having sufficient proprietary interest in any establishment to maintain and manage its operation. PERSON. Any individual, partnership, corporation, or entity. POP UP "Pop-up retail user" means any merchant who occupies or leases RETAILERS for ninety (90) days or less a fixed indoor or outdoor retail space in the City of Evanston for the sale of merchandise or provision of services, unless otherwise allowed and regulated in Section 6-4-8-3 of this Title.
3-27-2.- LICENSE BUSINESS REGISTRATION REQUIRED.
~7~
Page 12 of 17
ED1. Page 569 of 574 125-O-19
All businesses as defined herein for which a license business registration is not otherwise required under any other provisions of this Code shall be required to register their business. A separate license business registration shall be required for each separate place of business. Businesses that have a liquor license pursuant to Chapter 5 4 of this Title, or a cigarette and tobacco product license pursuant to Chapter 14 of this Title, or any alarm license pursuant to Title 9 of this Code, must also to obtain a separate general business license register their business.
3-27-3.-APPLICATION. An application for a general business license registration shall be made in writing under oath to the City on a form prescribed by the Director of Community Development City Collector. Each application shall contain the following information and such other information as may be required to determine whether the license business registration should be granted.
(A). The name, residential address, and phone number, and email address of the applicant, who shall be the principal owner in the case of a noncorporate entity or the president in the case of a corporate entity.
(B). The name of the company/business and the address(es) of the permanent place(s) of business within the City covered by the application, or, if there are no permanent places within the City, the address of the permanent place or location most closely involved with the business or activity covered by the application.
(C). The name, phone, and email address of business manager or primary business contact.
(D). A description of the business for which the license is requested.
(E). Minority Women Evanston Business Enterprise (MWEBE) status
(F). Total number of employees
3-27-4. - BUSINESS REGISTRATION ISSUANCE OF LICENSE. The Community Development Director City Collector may issue a general business license registration pursuant this Chapter if the application is in proper form, the use is compliant with zoning regulations, and the appropriate license business registration fee is paid in advance. All new businesses must undergo a Fire Life Safety inspection in order to complete the registration process, unless a certificate of occupancy is issued. The inspection is administered by the City of Evanston Fire Department staff. The Community Development Director City Collector may also issue a conditional business registration license when an investigation or inspection discloses a condition which must be corrected, provided that the applicant has provided satisfactory assurance that the condition will be corrected within a reasonable time, and the conduct of the
~8~
Page 13 of 17
ED1. Page 570 of 574 125-O-19
business or activity pending the correction of the condition will not endanger the public health, safety or welfare.
3-27-5.-TERM OF BUSINESS REGISTRATION LICENSE; RENEWAL. All licenses business registrations issued pursuant to this Chapter shall expire on December 31 following the date of issuance. General business licenses registrations may be renewed upon payment of the required fees at least six (6) weeks prior to the expiration of the license business registration; however, the failure of any business licensed registered under this Chapter to comply with any provisions of this Chapter, or with any applicable provision of local, state, or federal law, may constitute grounds for nonrenewal of the license business registration, in the sole discretion of the City Manager or his/her designee.
3-27-6.-LICENSE REGISTRATION FEES. (A). General Fee
1.Home Based Businesses $25.00 Per Year 2.Evanston-based businesses $50.00 Per Year 3. Contractors and others not maintaining a $50.00 Per Year place of business within the City 4. Pop Up Retailers $25 per location Per 90 day period 5. Fire Life Safety Inspection $150.00 As required1 1 Required for all new businesses unless a Certificate of Occupancy is issued
1. Contractors and others $40.00 Per year not maintaining a place of business within the City 2. Business with a gross $75.00 Per year floor area of 0 — 3,000 square feet 3. Business with a gross $150.00 Per year floor area of 3,001 — 10,000 square feet 4. Business with a gross $250.00 Per year floor area in excess of 10,000 square feet 5. Initial license application $50.00 fee 6. Inspection(s) fee $150.00 7. Home based business $25.00 per year
~9~
Page 14 of 17
ED1. Page 571 of 574 125-O-19
registration
(B). Proration Of Fees. The fee to be paid for any license business registration which shall expire less than six (6) months from the date such registration license business registration was required to be issued, shall be one-half (½) the annual fee provided by this Section.
(C). Late Payment Penalty. Failure to pay the annual renewal fee on any business license license business registration within six (6) weeks of license business registration expiration shall result in an additional late charge of ten percent (10%).
3-27-7.-REGULATIONS. (A). No license business registration shall be assigned, sold or transferred, nor shall any license business registration authorize any person other than the applicant to conduct business under such license business registration. (B). The applicant or license business registration shall have a duty to notify the City Collector Community Development Director of any changes in the information contained in an application which is pending or which was the basis for the issuance of license business registration. (C). Registration certification will be provided in electronic format as a receipt upon payment of the business registration fee and shall be made available for review. All licenses shall be prominently displayed on the business premises at all times. (D). No person shall add to, alter, deface, forge or counterfeit any license registration which has been issued by the City. (E). All licensees registered businesses shall comply with all applicable City, State and federal laws. Failure to do so may result in the revocation of nonrenewal of a general the business license registration as provided herein.
3-27-8.-SUSPENSION AND REVOCATION. In addition to any other penalty which may be authorized by this Chapter or other City ordinances, the Finance Director, City Manager or his/her designee may suspend, revoke or decline to renew any general business license business registration issued pursuant to this Chapter for. (A). Failure to comply with any provisions of this Chapter and any applicable provisions of the City Code; (B). Failure to comply with any applicable state and federal laws; (C). Failure to allow a required inspection.
Suspension or revocation shall occur in accordance with the rules and procedures promulgated by the City Manager or his/her designee and available from the City upon request.
3-27-9.-SUMMARY SUSPENSION.
~10~
Page 15 of 17
ED1. Page 572 of 574 125-O-19
Where the Finance Director, City Manager is presented with sufficient evidence demonstrating probable cause to believe that the licensee business registration holders has violated the provisions of applicable provision of local, state, or federal law, and the City Manager has a reasonable belief that said violation immediately threatens the public health, safety, or welfare, the City Manager may, without prior notice or hearing, issue a written order, including the reasons therefore, closing the licensed registered premises and summarily suspending the general business registration license pending a public hearing and final determination on suspension or revocation. Said hearing shall be commenced not more than seven (7) days following entry of such an order, unless the licensee business registration holders shall agree to a longer period of time. Upon entry of an order of summary suspension, the licensee business registration holders shall be served with a copy of the order and notice of violation and hearing in the manner provided in this Chapter.
3-27-10.-NOTICE OF HEARING. Prior to suspension or revocation of a general business license registration, other than by summary suspension pursuant to Section 3-27-9, the licensee business registration holders shall be served with written notice of the nature of the violations. Such notice shall also advise the licensee business registration holders that a public hearing will be provided if the licensee business registration holders files a written request for such a hearing with Finance Director, City Manager within ten (10) days of service. If a written request is filed within ten (10) days, a hearing date shall be set within ten (10) days of receipt of the request. If no written request for a hearing is filed within ten (10) days, the suspension or revocation is sustained without further action.
3-27-11.-HEARINGS. Public hearings pertaining to the suspension or revocation of a general business license registration shall occur in accordance with the rules and procedures promulgated by the City Manager or his/her designee and available from the City upon request Finance Director. The Finance Director, City Manager or his/her designee shall make a final decision in writing, including the reasons for such decision, and shall serve said decision on the licensee business registration no more than ten (10) days after conclusion of the hearing.
(A). Any person who violates or fails to perform any duty imposed by this Chapter may be fined not less than five hundred dollars ($500.00). A separate offense shall be deemed committed for each day that a violation occurs.
(B). The Finance Director, City Manager or his/her designee may seek to enjoin violations of this Chapter.
SECTION 4: All ordinances or parts of ordinances in conflict herewith are
hereby repealed.
SECTION 5: If any provision of this Ordinance 125-O-19 or application
~11~
Page 16 of 17
ED1. Page 573 of 574 125-O-19
thereof to any person or circumstance is held unconstitutional or otherwise invalid, such
invalidity shall not affect other provisions or applications of this Ordinance that can be
given effect without the invalid application or provision, and each invalid application of
this Ordinance is severable.
SECTION 6: Ordinance 125-O-19 shall be in full force and effect after its
passage and approval.
SECTION 7: The findings and recitals contained herein are declared to
be prima facie evidence of the law of the City and shall be received in evidence as
provided by the Illinois Compiled Statutes and the courts of the State of Illinois.
Introduced: ______, 2019 Approved:
Adopted: ______, 2019 ______, 2019
______Stephen H. Hagerty, Mayor
Attest: Approved as to form:
______Devon Reid, City Clerk Michelle L. Masoncup, Corporation Counsel
~12~
Page 17 of 17
ED1. Page 574 of 574
