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HomeMy WebLinkAboutOrdinance #0668f~ ~y t I ~ \` ~ ~, 1°~ . , ~ ~ ~•,. ~ ~ ~, r t .,~+ ORDINANCE N0. ~t0 b t ~~ ~. ~ ~ r AN ORDINANCE APPROVING THE MUNICIPAL PARKING LOT PURCHASE AGREEMENT, BOND PURCHASE AGREEMENT, PRIMARY PARKING LOT USE AGREEMENT, SECONDARY PARKING LOT USE AGREEMENT, NON-DISTURBANCE COMMITMENT AND CONTRACT TO CONSTRUCT A PUBLIC PARKING LOT FACILITY. AND AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE SAID AGREEMENTS, COMMITMENT AND CONTRACT ON BEHALF OF THE CITY OF CANfiON. WHEREAS, on November 16, 1976 the City Council of the City of Canton, Illinois adopted Resolution No. 715 providing for the development of Fulton Square; and WHEREAS, the ,pity Council of the City of Canton, Illinois has adopted ~. a Redevelopment Plan relating to downtown development and this Plan con- tains as one project the development by Fulton Square Corporation of a commercial facility on the block commonly known as Fulton Square; and WHEREAS, Fulton Square Corporation is about to undertake the develop- ment of the southern one-half, more or less, of Fulton Square with a commercial facility; and WHEREAS, the City of Canton is empowered to acquire land, construct, maintain, operate and lease public parking facilities pursuant to Chapter 24, Section 11-71-1 et seq. of the Illinois Revised-Statutes; and WHEREAS, the City of Canton desires to undertake the acquisition of E real property in the northern portion, more or less, of Fulton Square for a public parking facility and the City of Canton also desires that certain parcels of real property which it owns be available for public parking and the non-exclusive use of Fulton Square, its tenants, their customers, employees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of any tenant; and after the acquisition of said real property in the northern portion, more or less, of Fulton Square, the City of Canton desires to construct, maintain, operate and lease by way of parking lot use agreements and a non-disturbance commitment, said real property and said other parcels; and WHEREAS, to enable the City of Canton to proceed, it is necessary that certain agreements, commitments and contracts be executed by the City of Canton, which agreements, commitments and contracts include: r, "~ ~ti . ' r M -r~ + 1 A. A Municipal Parking Lot Purchase Agreement (Exhibit "A"); B. A Bond Purchase Agreement (Exhibit "B"); C. A Primary Parking Lot Use Agreement (Exhibit "C"); D. A Secondary Parking Lot Use Agreement (Exhibit "D"); E. ANon-Disturbance Commitment with J. C. Penney Company, Inc. (Exhibit "E"). F. A Contract to Construct a Public Parking Lot Facility (Exhibit "F"), which Exhibits are attached hereto and made a part of this Ordinance. NOW, THEREFORE, BE IT HEREBY ORDAINED BY THE CITY COUNCIL OF THE CITY OF CANTON, ILLINOIS AS FOLLOWS: 1. It is found to be in the public interest and welfare to proceed with the development of a public parking lot facility on the northern portion, more or less, of the Fulton Square property, which facility will be acquired pursuant to the Municipal Parking Lot Purchase Agreement, Exhibit "A", will be paid for by the issuance of Parking Facilities Revenue Bonds pursuant to the Bond Purchase Agreement, Exhibit "B", and will be built by the City of Canton in accordance with the terms of the Contract to Construct a Public Parking Lot Facility, Exhibit "F". 2. The City shall permit the use of the public parking facility on the north half, more or less, of Fulton Square by Fulton Square Corporation pursuant to the Primary Parking Lot Use Agreement, Exhibit "C", and shall permit the use of certain other parcels pursuant to the Secondary Parking Lot Use Agreement, Exhibit "D". Said public parking lot facility and parcels also shall be subject to the Non-Disturbance Commitment (Exhibit "E"). 3. That the Municipal Parking Lot Purchase Agreement, Bond Purchase Agreement, Primary Parking Lot Use Agreement, Secondary Parking Lot Use Agreement, Non-Disturbance Commitment, and Contract to Construct a Public Parking Lot Facility are hereby approved, said agreements, commitment and contract to be subject to and effective pursuant to the terms and conditions set forth therein. 4. The Mayor is hereby authorized and directed to execute and the City Clerk is hereby authorized and directed to affix the seal of the City of Canton thereto and to attest the Municipal Parking Lot Purchase Agreement, - 2 - ~' • ~ .' y R .y r ' ~ ~ ~ ~ ~ ry ~ ~ 1 r` ~ Bond Purchase Agreement, Primary Parking Lot Use Agreement, Secondary Parking Lot Use Agreement, Non-Disturbance Commitment, and Contract to Construct a Public Parking Lot Facility; and said Mayor and City Clerk are hereby authorized and directed to cause said Agreements, Commitment and Contract to be delivered to, accepted and executed by the other parties thereto, said Agreements, Commitment and Contract to be in substantially the form attached as Exhibits A, B, C, D, E, and F. 5. All Ordinances, resolutions and agreements, or parts thereof, in conflict with the provisions of this Ordinance, are, to the extent of such conflict, hereby repealed and this Ordinance shall be in full force and effect immediately after its passage by the City Council of the City of Canton, Illinois and approval by the Mayor thereof. PASSED by the City Council of the City of Canton, Illinois and APPROVED by the Mayor thereof this ~ ~ day of p ~ G'u S7 1978, APPROVED: ,OR HARLAN E. CROUCH ATTEST: ,CITY CLERK NANC S. WHITES - 3 - ~ ~ '~ , ~ UNITED STATES OF AMERICA ,~ STP,TE OF ILLINOIS COUNTY OF FULTON CITY OF CANTON, ILLINOIS PARKING FACILITIES REVENUE BOND Number $1,000 KNOW ALL MEN BY THESE PRESENTS, that the City of Canton, Fulton County, Illinois, (the "City") for value received, hereby promises to pay to the registered holder hereof, solely from the Parking Facilities Revenue Fund of the City of Canton, Illinois, as hereinafter mentioned and not otherwise, the principal sum of One Thousand Dollars ($1,000) on August 1, unless the prepay- ment provisions of this note become applicable, together with interest on said sum from date hereof until said principal sum is paid, at the rate of seven percent (7~) per annum, payable on the principal amount hereof on the first anniversary date of this Bond and subsequent consecutive anniversary dates. Both principal of and interest on this Bond are hereby made payable in lawful money of the United States at the office of the City Treasurer, in the City of Canton, Illinois. This Bond and the series of which it forms a part is issued under authority of the provisions of Chapter 24, Sections 11-71-1 through 11-71-12, Illinois Revised Statutes, and all laws amenda- tory thereof and supplementary thereto, (the "Act") for the pur- pose of paying a part of the cost of acquiring and constructing certain parking facilities for said City. This Bond does not constitute an obligation of said City within the meaning of any constitutional or statutory limitation or provision. This Bond is one of an authorized issue of Five Hundred Seventy-Five Thousand Dollars ($575,000), numbered 1 to 575, in- clusive, of like date and tenor except as to maturity. The Bonds are subject to redemption and payment, at the option of the City, prior to their maturity, at par and accrued interest to date of redemption, in the inverse order of number, on any interest payment date. Notice of the redemption of any or all of said Bonds which by their terms shall have become subject to redemption shall be given by the City to the holder thereof, if known, by registered mail at least thirty (30) days prior to the date of redemption, or if the holder thereof be unknown, such notice shall be published at least once in a newspaper printed in the English language and of general circulation in the City of Canton, Illinois, the date of the publication of such notice to be not less than thirty (30) days prior to such redemption date, and when any or all of said Bonds `"~ which by their maturity shall have been called for rederttption, and payment made or provided for, interest thereon shall cease from and after the date so specified. The only agreement the revenues of which are pledged to the bonds of which this Bond is one is the Primary Parking Lot Use Agreement dated as of August 1, 1978 between the City and Fulton Square Corporation. The Primary Parking Lot Use Agreement pertains to real property described in said agreement and hereinafter referred to as the "Property." No representation is made by the City that rentals payable under the Lease will be sufficient to pay principal of and interest on the Bonds. Other than the payment from the source or sources specified above, it is a condi- tion of this Bond that said City is under no obligation, legal or moral, to make any contribution to the payment of principal or interest in the retirement of said Bonds. In the event of default of said Bonds, there shall be no recourse by the holders of the Bonds against the property or the improvements thereon. Under said Act and the Ordinance adopted pursuant thereto by the City Council of the City of Canton, Illinois on August 8, 1978 (the "Ordinance"), authorizing the issuance of this Bond and the series of which it forms a part, the revenues derived from the Primary Parking Lot Use Agreement shall be deposited in a separate fund designated as the "Parking Facilities Revenue Fund" of said City, which shall be used and is hereby pledged for paying the principal of and interest on the Bonds of said City that are issued under authority of said Act and Ordinance. Pursuant to the Primary Parking Lot Use Agreement there shall be no patron charge for the use of the Property. Under no circum- stance is the City required to make any charge for the use of the Property for the payment of principal and interest due under this Bond or the series of bonds of which this Bond is part even if said bonds should be in default. It is hereby certified and recited that all acts, conditions and things required to be done precedent to and in the issuance of this Bond have been done and have happened and have been performed in regular and due form of law and that provision has been made for depositing in said Parking Facilities Revenue Fund the revenues received pursuant to the Primary Parking Lot Use Agreement received from the operation of certain parking facilities of said City to be applied in the manner as hereinabove set forth, and said City hereby covenants and agrees to comply with all the covenants of and to maintain the accounts created by the Ordinance pursuant to which this Bond and the series of which it forms a part were issued. This Bond shall be registered as to principal and interest in the name of the holder on the books of said City in the office of the City Clerk of said City, such registration to be evidenced by notation of the City Clerk on the back hereof, after which, and also subject to the other limitation of this Bond, no transfer -2- .~ hereof shall be valid unless made on said books and similarly noted hereon and unless made in compliance with the limitations of the following paragraphs. The Bonds shall be non-negotiable and non-assignable except to "Legally Qualified Buyers" as defined herein. The term "legally ~~ qualified buyers means any individual with a net worth (total assets in excess of total liabilities) of at least $300,000, residing in Fulton, McDonough, Knox, Peoria, Tazewell, and Mason Counties, Illinois, age 21 years or more, actively engaged in business in one or more of the Counties, or financial institutions located in one of said counties, or any purchaser of the City's commercial development revenue bonds if such purchaser is an institutional lendor. The City, by issuing this Bond, makes no representation what- soever, express or implied, with regard to the availability of amounts to be received pursuant to the Primary Parking Lot Use Agreement; nor does the City make any representation whatsoever, express or implied, to the effect that there will or will not be any such amounts actually received pursuant thereto. Said Primary Parking Lot Use Agreement states with respect to available revenues that: "Available Rents" shall mean: "Cash Balance derived by Fulton Square Corporation from project tenant rent and common facilities maintenance charges after all Project Operating Expense and Debt Service is paid, or accrued and set off monthly in required reserve for payment of deferred items, calculated as of the end of the 12 month period ending a payment year as established in Schedule A hereto. Project Operating Expenses shall include all reasonable and necessary expenses incurred and reasonable replacement reserves for the orderly operations of the project which shall include, without limitation, all federal, state and local taxes including property tax, insurance, management and operations costs and fees, legal and accounting fees, property management and leasing fees, supplies and salaries for project employees." Said Schedule A calls for payments equal to principal and interest on the Bonds. IN WITNESS WHEREOF, the City of Canton, Fulton County, Illinois by its City Council, has caused this Bond to be signed by its Mayor and City Clerk and has caused the corporate seal of said City to be affixed hereto, and this Bond to be dated as of the first day of August, 1978. G::.~ ... M r ~~, (¢..~ City Clerk -3- i ~ ~ 4 (Form for Registration) Date of In Whose Name Signature of City Registration Registered Clerk - U -4- .~ ~e • .. Year 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Schedule A -5- s R Principal and Interest $40,250 46,250 46,830 46,340 46,850 46,290 46,730 47,100 47,400 46,700 46,930 47,090 47,180 47,200 47,150 47,030 46,840 47,580 47,180 46,710 47,170 47,490 47,670 46,710 46,680 47,510 47,130 47,610 46,880 46,010 _' MUNICIPAL PARKING LOT PURCHASE AGREEMENT This agreement made and entered into this _~~r'` day of _, 1978, by and between Fulton Square Corporation, an Illinois not-for-profit corporation (herein- after referred to as the "Seller") and the City of Canton, a municipal corporation (hereinafter referred to as the "Purchaser"). W I T N E S S E T H: WHEREAS, the Seller is the Owner of a certain parcel of real property (hereinafter referred to as the "Property"), located in the City of Canton, Fulton County, Illinois, the legal description of which is set forth in Exhibit 1; and WHEREAS, the Purchaser is empowered to purchase the Property pursuant to I11. Rev. Stats., Chapter 24, Sec- tions 11-71-1 et seq.; and WHEREAS, the Seller has agreed to sell said Property to the Purchaser and the Purchaser has agreed to purchase the Property on the terms and conditions as herein- after set forth; NOW, THEREFORE, in consideration of the covenants and conditions hereinafter contained and other good and val- uable consideration, the sufficiency of which is hereby ack- nowledged, the parties hereto agree as follows: ~" 1. WARRANTY DEED AND CONDITIONS. The Seller agrees to sell the Property to the Purchaser at the price and on the terms and conditions hereinafter set forth, and to con- vey to the Purchaser title thereto by a recordable warranty deed subject only to at the time of closing general real estate taxes, if any, not yet due and owing as of the date of closing. 2. PURCHASE PRICE. The purchase price for the Prop- erty shall be $575,000.00, said purchase price to be paid by the issuance of Parking Facilities Revenue Bonds, pursu- ant to the Bond Purchase Agreement dated ~, ~, C 1978, and Bond Purchase Ordinance. 3. CONDITIONS. The closing of the purchase of this Property by the Purchaser is contingent on: A. The acceptance by the Seller of the Bonds pursu- ant to the Bond Purchase Agreement, dated ~, 1978. B. The execution by Fulton Square Corporation and the City of Canton of a Primary Parking Lot Use Agreement. C. The Purchaser shall furnish a land survey of the Property drawn in strict compliance with official records and in strict compliance with the requirements applicable to such survey of both the laws of the State of Illinois and the Illinois Land Survey Standards jointly established and adopted by the Illinois State Bar Association, Illinois Land Surveyors Association and Society of Professional Land Surveyors in 1968. D. Fulfillment of the other terms of this Agreement. -2- ~ ~ 4. ESCROW AND TITLE INSURANCE. The purchase of the Property shall be through an escrow established at an in- stitution which is acceptable to the parties. The terms of the escrow shall conform to the terms of this contract and the cost of such escrow shall be divided equally between the Seller and Purchaser. The escrow referred to herein shall be established not less than ten (10) days prior to the date set for closing. Within five (5) days after the opening of the escrow, the Seller shall deposit in escrow the Warranty Deed called for by this agreement. At the time the Seller deposits its Warranty Deed, the Purchaser shall deposit a quitclaim deed to the Seller which deed shall be recorded only on the ter- mination of this Agreement in the event of default of the Purchaser in accordance with the terms hereof. At Seller's cost, the Warranty Deed shall be promptly recorded after deposit and Seller shall cause to be delivered to the Pur- chaser at its cost a title commitment acceptable to the Pur- chaser in an amount not less than the purchase price naming the Purchaser as insured, subject only to exceptions accept- able to the Purchaser. If the title commitment discloses exceptions relating to title other than those referred to above, the Seller shall have fifteen (15) days from the date of delivery thereof to have the exceptions removed from the commitment, or except as the title insurer will commit to insure against the loss or damage that may be occasioned by such exceptions in such -3- u ~; amounts as shall be deemed appropriate and are determined by the Purchaser. If the Seller fails to have the excep- tions removed or in the alternative, fails to obtain the commitment for title insurance specified above, the Pur- chaser may terminate this Agreement or may elect, upon notice to Seller within 10 days after the expiration of the 15 day period, to take title as it then is with a right to deduct from the purchase price, liens or encumbrances of a definite or ascertainable amount. After all unpermitted exceptions have been removed, then the Seller, at its ex- pense shall cause to be issued to the Purchaser a title in- surance policy conforming to the requirements set forth for the commitment above. 5. STAMP TAX. The Seller shall pay the amount of stamp tax, if any, imposed by law in the transfer of the title and shall furnish a completed Real Estate Transfer Declaration signed by the Seller or the Seller's agent in the form required pursuant to the Real Estate Transfer Act of the State of Illinois . 6. CLOSING. Provided the conditions of this contract have been met, the closing shall take place on or before August 15, 1978 or such other date as may be mutually agreed to by the parties in writing. 7. DEFAULT. In the event of default of the Seller in this Agreement, this Agreement shall be rescinded and shall -4 - be null and void. In the event of the default of the Pur- chaser, the quitclaim deed of the Purchaser to the Seller shall be recorded and any or all measures necessary shall be taken by the Purchaser to remove any objections to title caused by the Purchaser. 8. RESCISSION. If the Seller fails to commence construction of the commercial facility provided for in the Lease between the Seller and J. C. Penney Co., Inc. (by October 1, 1978), then the Seller or Purchaser, as the case may be, in addition to other remedies provided by this Agreement, and law and equity, may rescind this Agreement, and Purchaser shall be reimbursed for all reasonable ex- penses incurred in connection with this Agreement, ex- clusive of attorneys' fees. 9. DAMAGES. In the event of the default of either party in respect to closing, neither party shall have any claim against the other for monetary damages. 10. NOTICES. All notices required by this Agreement shall be in writing and shall be by personal delivery or shall be by certified mail, return receipt requested and shall be deemed to be given on deposit in the U. S. postal facility. The addresses of the parties are as follows: -5- • '" . r Seller: Fulton Square Corporation c/o Community Bank & Trust Company 245 North Main Street Canton, Illinois 61520 PURCHASER: The City of Canton 210 East Chestnut Street Canton, Illinois 61520 11. ASSIGNMENT. No assignment shall be made by either party without written consent of the other. 12. BINDING AGREEMENT: This Agreement shall be bind- ing on the successors and assigns of the parties. IN WITPdESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. SELLER: ATTEST: 5~~~ ecre ary PURCHASER: ATTEST: icy Cle FULTON SQUARE CORPORATION By. ~ ~ \~ President CITY OF CANTON ~~ i c: --~ By: ~.-t~'z'~l r=--'. r -6- ~J , '~ Z ,i r . ' ~ .• ` , ' ~ MUNICIPAL PARKING LOT PURCHASE AGREEMENT EXHIBIT 1 Commencing at the Northwest corner of Lot 95 of the Original Town Addition to the City of Canton, as recorded in Fulton County, Illinois; thence East along the North line extended of said Lot 95, 363.0 feet; thence South 252.25 feet; thence West 255.0 feet; thence North 152.0 feet; thence West 108 feet to the 4Jest line of said Lot 95; thence North 100.25 feet to the point of beginning, containing 1.725 acres more or less. ,- r . ~1 ~ ~, PRIMARY PARKING LOT USE AGREEMENT WHEREAS the City of Canton, Illinois has purchased real property which real property, together with other real property owned by the City of Canton (hereinafter referred to as the "Property"), is described in Exhibit "1" attached to and made a part of this Primary Parking Lot Use Agreement; and WHEREAS Fulton Square Corporation, an Illinois not- for-profit corporation, (hereinafter referred to as "Fulton Square") is to develop a commercial facility in accordance with the attached plot plan described in Exhibit "2"; and WHEREAS to permit the development of the commercial facility, it is necessary that a public parking lot facil- ity (hereinaf ter sometimes referred to as "parking lot") be built and maintained on the Property; and WHEREAS the City of Canton is empowered to construct, maintain, operate and lease the public parking lot facil- ity described in the plot plan pursuant to 111. Rev. Stats. Chapt. 24. Secs 11-71-1 et seq; and WHEREAS the City of Canton in consideration of Fulton Square Corporation's undertaking redevelopment of the com- mercial facility in accordance with the plot plan and other valuable consideration, desires to build and maintain a pub- lic parking lot facility for public use and the use of Ful- ton Square, its tenants and others as set forth in this Agreement, -1- ~~ It is•MUTUALLY AGREED between the City of Cafito,,~ • as Lessor, and Fulton Square Corporation, as Lessee, as follows: 1. The City of Canton does hereby lease the Property to Fulton Square. The term of this Primary Parking Lot Use Agreement shall be 60 years. It may be renewed in the same manner as provided for renewal of the term set forth in any Redevelopment Lease which may be then in effect between the City of Canton and Fulton Square, or if no Redevelopment Lease is then in effect for successive terms of ten (10) years each, on written notice of Fulton Square to the City of Canton given not less than ninety (90) days prior to the expiration of any term. 2. The City of Canton agrees to build on the Property a public parking lot facility. The maximum cost to the City shall not exceed $250,000. In the event the cost exceeds $250,000, Fulton Square Corporation agrees to reimburse the City for the cost above $250,000. The public parking lot facility shall be built in accordance with the terms and conditions of a contract to be entered into among the City of Canton, Fulton Square and a contractor. 3. The public parking lot facility built by the City of Canton shall be used for public parking in accordance with the rules and regulations the City may from time to time provide. Said parking lot shall be striped and adequate directional markers shall be furnished. There shall be maintained within said public parking lot car parking spaces for an absolute minimum of 192 passenger automobiles of average American size. The minimum dim- ensions for said parking spaces shall be as shown on the plot plan. The City of Canton agrees, at no cost and/or --~_ expense to Fulton Square and its tenants, throughout th.e. term of this F~greement; (a) to provide and maintain the public parking lot facility; (b~ to furnish illumination for the parking lot at all times (except at the times set forth in the immediately succeeding item (c)) with a lighting intensity of not less than one foot candle at all points within the parking lot measured at its finished grade; (c) to furnish illumination for the parking lot at all times aftex a time which is thirty '(3Q) minutes after the closing to the public for business of Fulton Square ox its tenants' store buildings and at all night time hours thereafter until daylight of the day on which the store buildings again open to the public for business by not less than 25$ of the number of light~.ng units installed in the parking lot in question which shall result in not less than 25~ uniformly distributed lighting throughout the parking lot in question, (d) not to make any charge for use of all or any portion of the parking lot except as provided in paragraphs 4, 6 and 7 of this Agreement; (e) to limit parking on the parking lot to periods of three (3) hours; provided, however, that, at the request of the Tenant occupying the ~ commercial facility building containing approximately 34,400 square feet, at any time and/or from time to time, the City of Canton shall revise the said periods of time to two (2) hours, back to three (3) hours and/or to four (.4) hours; -3- ~ ' (f) to'keep the parking lot pxopeXly repaired maintained, lined, lighted (including, without limitation, replacing lighting elements, bulbs, tubes and ballasts), drained and free from snow and ice; (g) to provide policing of the parking lot; (h) to comply with the indemnification and other requirements of the next paragraph of this section; (i) to prevent fencing and/or any other obstructing of the parking lot; (j) to comply with the provisions of and the notes set forth on the plot plan hereto insofar as the parking lot is concerned; (k) to prevent the use of the parking lot for any use but parking; (1) to keep the parking lot open at all times (except temporarily during necessary repairs) for the use of Fulton Square, its tenants, their customers, em- ployees, and invitees, and the customers, employees and in- vitees of any subtenant, concessionaire or licensee of any tenant and for members of the public, and while business with the public is being transacted at the commercial facil- ity, all such persons shall have access to the public parking lot facility for parking purposes and to pass freely between the commercial facility and the public parking lot facility on foot; (rm) in the event of new construction (other than replacement construction) in the central business area of the City of Canton (other than on the plot plan) to use its best efforts to require that there be furnished additional parking for such new construction at the rate of 5.0 car parking spaces for each 1,000 square feet of floor area; provided, however, that in the event of a theatre, there shall be provided one (1) car parking space for each three (3) seats or one (1) car parking space for each 600 square feet of floor area, which- ever requires the greater number of parking spaces. R ~' -4- 4, The City of Canton agrees to hold Fulton Square'and its tenants harmless against any and all claims, damages, or causes of action for damages brought on account of injury to any person or persons or property or loss of life, arising out of the use, operation and maintenance of said public park- ing lot facility. For the purpose of so protecting Fulton Square and its tenants, the City of Canton shall carry during the term of this lease public liability insurance under a policy or policies which shall name Fulton Square and its ten- ants as additional insureds and which shall have limits of not less than $1,000,000 per person and $3,000,000 per occurrence in respect to bodily injury or death and not less than $500,000 per occurrence in respect to property damage. 4. It is agreed by the parties hereto that the public parking lot facility is part of a downtown integrated shopping center. The City of Canton shall not make a charge for use of the public parking lot facility by Fulton Square's tenants, their customers, employees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of any tenant, and members of the public during the term of this lease or any extension thereof. The City of Canton shall not make any charge to Fulton Square for use of the public parking lot facility except as provided in para- graphs 6 and 7 of this Agreement. 5. During the term of this Primary Parking Lot Use Agreement, the City of Canton shall be responsible for day to day maintenance of the public parking lot facility, in- cluding cleaning and snow removal. The City shall also be responsible for making repairs of the public parking lot '+ -5 - facility, including patching and resurfacing of the lot when necessary. The City shall also be responsible for landscaping, striping and lighting of said lot as herein provided. 6. The City of Canton will issue revenue bonds in consideration for the purchase of the public parking lot facility. Fulton Square Corporation agrees to pay the City of Canton from "available rents" as hereinafter defined the sums at the times and for a period of 30 years set forth in Schedule A hereto which sums are equal to amounts required to pay principal and interest on such revenue bonds. All amounts paid to the City of Canton are for the purpose of retirement of said revenue bonds from revenue received by the City of Canton from Fulton Square on or after the commence- ment of the Lease Term. The annual rent shall be paid to the City of Canton at its office. Rent may be prepaid. It is anticipated that in the absence of default, the revenue bonds will be retired in 30 years. However, default in payment of the bonds shall not be cause for termination of this Agree- ment. If after said 30 year period, amounts remain due and payable under said bonds, Fulton Square shall be obligated to pay for the use of the public parking lot facility the amount necessary to meet the requirements of the retirement of the then outstanding revenue bonds. Af ter the revenue bonds have been retired, then Fulton Square shall be obligated to pay as annual rent a reasonable amount, based on the rate .~ -6- per square foot which is comparable to that then being charged by the City to other merchants in the City of Canton which then have agreements for the complimentary use of public parking facilities. If no charge is made to other merchants for the use of public parking lot facilities, no charge will be made to Fulton Square Corporation. 7. Fulton Square hereby agrees to pay from "available rents", revenues to service the obligations con- templated in Paragraph 6 above. Nothing contemplated herein shall impair the security required by any lender involved in the commercial construction, or permanent, financing of the improvements, or of the rights of tenants as defined be- low. Notwithstanding anything to the contrary, it is agreed by the parties hereto, no action will be taken by the City of Canton or Fulton Square with respect to the Property and respective obligations therefor, during the term of this agreement which would constitute an event of default of Ful- ton Sguare pursuant to certain tenant leases to be executed by Fulton Square and its tenants. Available rents shall mean: Cash Balance derived by Fulton Square Corporation from project tenant rent and common facilities maintenance charges after all Project Operating Expense and Debt Service is paid, or accrued and set off monthly in re- quired reserve for payment of deferred items, calculated as of the end of the 12 month period ending a payment year as. -7- established in Schedule A hereto. Project Operating Expenses shall include all reasonable and necessary expenses incurred and reasonable replacement reserves for the orderly operations of the project which shall include, without limitation, all federal, state and local taxes including property tax, insurance, manage ment and operations costs and fees, legal and accounting fees, property management and leasing fees, supplies and salaries for project employees. 8. It is not contemplated that any real estate taxes will be payable as a result of this Agreement. However, if any real estate taxes become due and payable as a result of this Agreement, said taxes shall be paid by Fulton Square. All taxes legally levied against the Property, of whatsoever kind and nature, shall be fully paid on or before the due date thereof by Fulton Square and official receipts of the appropriate taxing authorities or other proof satisfactory to the City, shall be furnished to the City. 9. This Agreement shall be nonassignable by Fulton Square Corporation except with the written consent of the City of Canton, provided, however, the rights of Fulton Square may be assigned to the tenants of Fulton Square Cor- poration, its successors and assigns, but no such assign- ment shall relieve Fulton Square of its obligations hereunder. 10. In the event that either party shall for any reason fail to perform any of the terms, covenants, conditions or provisions of this Agreement and such failure shall not be -8- ' .~ Y cured or remedied within sixty days after the date the City of Canton or Fulton Square receives from the other notice of failure of performance, then such failure shall consti- tute a default under this Agreement. In addition to any other rights and remedies which they may have at law or in equity, upon the occurrence of a default, then, so long as such default continues: (a) The City of Canton or Fulton Square, as the case may be, shall, to the full extent permitted by law, have the right to maintain any and all actions at law or suits in equity or other proper proceedings to enforce the curing or remedying of such default; (b) The City shall also have the right to have a receiver appointed by a court of competent jurisdiction to take control of Fulton Square, with power in such receiver, on behalf of Fulton Square, so long as shall be necessary in order to cure or remedy (as may be appropriate) such default or so long as the court may deem neces- sary or proper to prevent the recurrence of such default: (i) to administer, carry on, manage, operate, maintain, complete and otherwise deal with Fulton Square; -9- .~ r (ii) to collect, receive, safeguard, expend and otherwise deal with, handle or apply, in accordance with applicable law, this Agree- ment and any other agreement to which Fulton Square is a party, all funds available and becoming available to Fulton Square; (iii) to do and perform any and all such other acts and things as, consistent with Fulton Square, the court Tray deem necessary or proper.. (c) The respective obligations of the City of Canton and Fulton Square, pursuant to this Agreement, shall be cum- ulative, and the reference to any such obligation shall not be construed as a limitation on any other obligations. The respective rights and remedies of the City and Fulton Square whether provided by this Agreement or by law, shall be cum- ulative, and the exercise by either party of any one or more of such rights or remedies shall not preclude the ex- excise, at the same or at different times, of any other such rights or remedies for the same default, or for the same failure in respect to any of the terms, covenants, conditions or provisions of the Agreement or any of its remedies for any other default or breach by the other party. -10- r' In the event that either party to this Agreement shall not take any action in respect of any failure of the other party to observe or perform any of the terms, cov- enants, conditions, or provisions of this Agreement required to be observed, performed or kept by such party, or in re- spect of any default under this Agreement by the other party (whether before or after any suit or judgment has been filed or obtained against such other party), the same shall not be construed as a waiver of such failure or de- fault in respect of the term, covenant, condition or pro- vision of this Agreement not being observed, performed or kept, or of this Agreement as an entirety. It is under- stood and agreed that any delay by either party to the Agreement in exercising or asserting any of its rights or remedies hereunder, or in instituting any actions or pro- ceedings to assert or enforce any such rights or remedies, shall not operate as a waiver of any such rights or rem- edies or to deprive either such party of its right to in- stitute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies, it being the intent of this provision that neither such party (.in order to avoid the risk of being deprived or limited in the exercise of such right or remedy, or in its right to institute and maintain any such action or proceeding to protect, assert or enforce any such right or remedy, because of concepts of waiver, laches or otherwise) should be constrained to exercise such .~ -11- right or remedy or its right to institute and maintain any such actions or proceedings at a time when it may desire otherwise to resolve any problem created by the failure of the other party to observe, perform or keep the terms, covenants, conditions or provisions of this Agreement required to be observed or performed by such other party. Notwithstanding the foregoing, no default of Fulton Square shall terminate the rights of any tenant of Fulton Square under non-disturbance commitments made by the City of Canton in effect at the time of termination. 11. In the event that Fulton Square shall fail to keep, perform and observe any of its duties and coven- ants contained in this Agreement and any such failure or violation shall not be cured or remedied within sixty days after the date that Fulton Square receives notice from the City of Canton of such failure or vio- lation, then, in such event, the City of Canton, may, at its option and in addition to any other remedy pro- vided for in the Agreement, terminate the Agreement, by written notice to Fulton Square. Any such termination shall not, however, affect the rights of any tenant of Fulton Square under non-disturbance commitments made by the City of Canton in effect at the time of termination. ~~ -12 - l~ IN WITNESS WHEREOF, the City of Canton, Illinois, and Fulton Square Corporation have caused this Agreement to be executed as of this 1st day of Aughst, 1978. ATTEST: ~ ' •!~'~ City Clerk ATTEST: ~`S"~ \Jcz/ ~~ ~~ is Secretary CITY OF CANTON, ILLINOIS ~,_ By: ayor FULTON SQUARE CORPORATION B y : .-.. L.~ - Its President - 13 - STATE OF ILLINOIS ) SS COUNTY OF FULTON ) On this the 15th day of August, 1978, before me, a Notary Public duly authorized in and for the said County in the State aforesaid to take acknow- ledgements, personally appeared Gordon W. Linn, residing at 235 Ingersol Boulevard, Canton, Illinois, to me known and known to me to be President of Fulton Square Corporation and James Van Sickle, residing at 246 West Elm Street, Canton, Illinois, to me known and known to be the Secretary of Fulton Square Corporation, the not-for-profit corporation described in the foregoing instrument, and acknowledged that as such officers being authorized so to do, they executed the foregoing instrument on behalf of said corporation by themselves as such officers, each as his free and voluntary act, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth and that James Van Sickle as Secretary, as custodian of the corporate seal of said corporation, did affix said corporate seal of said corporation to said instrument as his own free and voluntary act and as the free and voluntary act of said corporation for the uses and purposes therein set forth. IN L,IITNESS WHEREOF, I hereunto set my hand and official seal. Plotary Public ~' My Commission Expires: .~ •, .~ i STATE OF ILLINOIS SS COUNTY OF FULTON On this 15th day of August, 1978, before me, the undersigned Notary Public, duly commissioned, qualified and acting within and for the County and State aforesaid, appeared in person the within named Harlan E. Crouch and Nancy S. Whites, to me personally well known, who stated that they were the Mayor and City Clerk, respectively, of the City of Canton, and were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said City, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal on the day and year first above mentioned. t1~z a ~m ! i K NOTARY PUBLIC ,. My Commission Expires: .~ ., ~, ~ . PRIMARY PARKING LOT USE AGREEMENT EXHIBIT 1 Commencing at the Porthwest corner of Lot 95 of the Original Town Addition to the City of Canton as re- corded in Fulton County, Illinois; thence East along the North line extended of said Lot 95, 373.0 feet; thence South 252.25 feet; thence West 265.0 feet; thence North 152.0 feet; thence West 108 feet to the West line of said Lot 95; thence North 100.25 feet to the point of beginning. and Commencing 100.25 feet South and 15 feet West of the Northwest corner of Lot 95 of the Original Town Addition to the City of Canton as recorded in Fulton County, Illinois; thence South 240 feet; thence West 20 feet; thence North 240 feet; thence East 20 feet to the point of beginning. .~ e- t wI ~ Year August 1, 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 .~ Schedule A -5- Principal and Interest $40,250 46,250 46,830 46,340 46,850 46,290 46,730 47,100 47,400 46,700 46,930 47,090 47,180 47,200 47,150 47,030 46,840 47,580 47,180 46,710 47, 170 47,490 47,670 46,710 46,680 47,510 47,130 47,610 46,880 46,010 t~ CONTRACT TO CONSTRUCT A PUBLIC PARKING LOT FACILITY This contract made and entered into this day of 1978 among Fulton Square Corporation, (hereinafter referred to as "Fulton Square") an Illinois not-for-profit corporation, and the Bruce Douglas Company (hereinafter referred to as "Douglas"), an Ohio corporation, duly authorized to conduct business in the State of Illinois and the City of Canton, Canton, Illinois (hereinafter referred to as the "City"`. WHEREAS, Fulton Square proposes to develop a commercial facility in an area commonly known as Fulton Square; and WHEREAS, Douglas has entered into a construction contract with Fulton Square for the construction of the commercial facility in Fulton Square; and WHEREAS, the Primary Parking Lot Use Agreement between Fulton Square and the City provides that the City will construct a public parking lot facility in Fulton Square; and WHEREAS, the City desires to build the public parking lot facility pursuant to its obligation under the Primary Parking Lot Use Agreement in conformance with the requirements of Fulton Square and in conformance with State and local law and to coordinate its activity with Douglas; and WHEREAS, in the event that the City fails to perform its obligations under this Agreement, Douglas will undertake performance. IN CONSIDERATION OF the mutual promises among Fulton Square, Douglas, and the City, it is mutually agreed as follows: 1. PERFORMANCE REQUIREMENTS: (a) The work under this contract shall be commenced by the City no sooner than Douglas commences construction of the commercial facility. The City shall commence work no later than the date specified by Douglas in written notice of Douglas to the City which notice shall be sent to the City not less than 30 days prior to the date that Douglas desires this work to commence. The work shall be completed on or before July 31, 1979 i • , ~ ~ except that the time to complete shall be extended by: (i) Enforced delay in performance for causes beyond the control of the City as set forth in Paragraph 11; (ii) The time or times by which Douglas' time to perform under its construction contract with Fulton Square is extended; (iii) By mutual agreement of the parties in writing. Time is the essence of this contract and the work will be carried on by the City promptly and efficiently and without delaying other phases of the job performed by Douglas and other contractors. (b) The contract documents shall consist of the plans and specifications prepared for this contract, and shall include all modifi- cations agreed to in writing by the parties. Unless otherwise specified in writing, the term "work" includes all labor, materials, equipment, tools, construction equipment, and machinery necessary for the proper execution and completion of the work. (c) The City's work shall be executed and completed wholly in accordance with these contract documents and in compliance with all the laws and ordinances bearing on the construction of a public parking lot facility. (d) The establishment of lines, grades, extents and elevations of all surfaces or materials installed hereunder and the data needed for this work will be undertaken by the City in accordance with the plans and specifications. (e) The City shall perform and coordinate its work with that of Douglas and other subcontractors to the best interest of the project as a whole. 2. CHANGES: There shall be no changes, additions, or alterations to the plans or specifications unless the same are agreed to in writing by Fulton Square, - 2 - Douglas and the City. 3. ACCOUNTING AND PAYMENT: The City shall account for the sums expended by it and the labor and materials used by it in respect to performance under this agreement. Work shall be accounted for by the City on a per unit basis of work and material. The City shall not make any charge to any party for work performed by it so long as the City's accounting reflects that the cost of the work to the City is less than $250,000. The City shall furnish statements monthly to Fulton Square setting forth the cost of the work. In the event the cost of the work exceeds $250,000, Fulton Square agrees to reimburse the City for the excess cost. Payment shall be made to the City within 30 days that any statement of the City showing costs in excess of $250,000 is furnished to Fulton Square. In the event that the City fails to perform and default of the City occurs, then Douglas shall immediately undertake the work to be performed by the City and shall perform the work in accordance with the terms of this contract. Douglas shall furnish the City and Fulton Square with monthly statements as to the cost of the work performed by it which cost shall be on a per unit basis of work and material furnished. So long as the total cost of the work as shown by the monthly statements of the City and Douglas are less than $250,000, the City shall promptly pay to Douglas the amounts reflected by the Douglas statements, less 10%; the retention to be paid on completion and acceptance of the work by Fulton Square and the City. If the total cost of the work as shown by the monthly statements of the City and Douglas are more than $250,000, Fulton Square shall promptly pay to Douglas the amounts reflected by the Douglas statements, less 10%, the retention to be paid on completion and acceptance of the work by Fulton Square and the City. 3. TAKING OVER PERFORMANCE-TERMINATION OF CONTRACT: Should the City fail to pursue the work or any part thereof - 3 - ,' with promptness and diligence, or otherwise violate the terms of this contract, Douglas shall, after fifteen days written notice to the City and in the event any default is not cured within said fifteen day period, complete the work or any part thereof. Should Douglas fail to pursue the work or any part thereof with promptness and diligence or otherwise violate the terms of this contract, Fulton Square shall, after fifteen days written notice to Douglas and in the event any default is not cured within said fifteen day period, itself complete the work or any part thereof. 4. REMOVAL OF DEBRIS AND WASTE MATERIALS: The job shall at all times be maintained in orderly and clean condition. At the completion of the work, the public parking lot facility shall be free of all dirt and rubbish caused by the work performed under this contract. 5. CONTRACTUAL RELATIONSHIP: In the performance of this contract, the City and Douglas shall operate as independent contractors and not as the agent of Fulton Square or each other. The party responsible for any act or omission to act shall hold the other parties free and harmless from, and hereby indemnifies each of them, against any and all claims, demands, causes of action, liability, costs, losses, charges, including reasonable attorney fees, arising out of or in connection with any act, omission to act, representation or con- tract of the responsible party its agents and employees and its sub- contractors. 6. WORKMEN'S COMPENSATION: The City and Douglas shall, at all times, during the term of this Contract subscribe to and comply with the Workmen's Compensation laws in the State of Illinois, and shall pay such premium or procure such insurance as may be required thereunder. Fulton Square shall be furnished at the time of delivery of the contract and at such other times as may be requested, copies of the official certificates or receipts showing the payment hereinbefore referred to or the procurement of the required insurance coverage. - 4 - ~• 7. UNEMPLOYMENT INSURANCE, HEALTH AND WELFARE CONTRIBUTIONS LICENSES AND TAXES: The party performing the work under this contract shall accept full and exclusive liability for the payment of any and all taxes and contributions for unemployment insurance, old age retirement benefits and like pensions and annunities, the payment of income taxes to be withheld which may now or hereafter be imposed by the United States, any state, or any other governmental authority, whether measured by wages, salaries or remuneration paid to persons employed by said party or other- wise, for the work required to be performed hereunder and any health and welfare fund contributions and any other contributions with respect to the said parties employees required by any agreements with labor unions. Said party shall comply with all Federal, State, Municipal and other laws on such subjects, and all rules, orders and regulations promulgated there- under, and shall maintain suitable forms, books and records. 8. GUARANTEE: The party performing the work shall furnish to Fulton Square a guarantee covering a period of one year after the final completion and acceptance of the party's work. 9. INSURANCE: (a) Liability and Property Damage Insurance. Before commencing work under this contract, the party performing the work shall take out and maintain during the life of this contract, at said party's expense, personal liability and property damage insurance, in the following amounts: $1,000,000 per person and $3,000,000 per occurrence in respect to bodily injury or death and not less than $500,000 per occurrence in respect to property damage. At the time of delivery of this contract, policies of insurance or certificates of coverage shall be furnished to Fulton Square evidencing such insurance coverage by policies issued by companies satis- factory to the Contractor. (b) All insurance required to be provided under this contract to be acceptable must not be subject to change or cancellation in less than - 5 - ten (10) days after receipt of notice. 10. RESPONSIBILITY FOR WORK: The party performing the work shall be responsible for all materials and equipment delivered and work performed hereunder until completion and final acceptance of the work and upon com- pletion of this contract the work shall be delivered complete and un- damaged. The party performing the work shall be completely responsible for loss or damage to the work due to theft, pilferage, rust, weathering, the elements and acts of God. 11. ENFORCED DELAY IN PERFORMANCE FOR CAUSES BEYOND CONTROL OF THE PARTY: For the purposes of any of the provisions of this Contract, neither the City nor Douglas, as the case may be, nor any successor in interest, shall be considered in breach of, or default in, its obligations in respect to the work, or progress in respect thereto, in the event of enforced delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God, acts of the public enemy, acts of the Federal Government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight, embargoes, and unusually severe weather or delays of subcontractors due to such causes; it being the purpose and intent of this provision that in the event of the occurrence of any such enforced delay, the time or times for performance of the obligations of the City or Douglas, as the case may be, shall be extended for the period of the enforced delay: Provided, That the party seeking the benefit of the provisions of this Paragraph shall, within ten (10) days after the be- ginning of any such enforced delay, have first notified the other party thereof in writing, and of the cause or causes thereof, and requested an extension for the period of the enforced delay. 12. COMPLETE AGREEMENT: This contract constitutes the entire agreement among the parties. There are no terms, conditions or provisions either oral or written, between the parties hereto other than those herein contained. This con- - 6 - '. tract supersedes any and all oral or written representations, inducements, or understandings of any kind or nature among the parties hereto relating to the particular construction project involved herein. 13. AMENDMENT: This Contract may be amended by mutual written agreement of all the parties hereto. 14. WAIVERS: The waiver by any party of any breach of any provision of this contract shall not be deemed to be a waiver of any subsequent breach of the same, or a breach of any other provision of this contract. 15. GOVERNING LAW: This contract shall be governed by the law of the State of Illinois. 16. NOTICES: All written notices required under the provisions of this con- tract shall be sent by certified mail, postage prepaid, addressed to the party to be notified at such party's usual place of business and shall be effective when sent. This Agreement executed this FULTON SQU RE CORPORATION BY : ~./ , President Q ATTEST . ~.JC.~ Secretary Corporate Seal• day of THE BRUCE DOUGLAS COMPANY BY: ATTEST: Corporate Seal: President Secretary 1978. CITY OF CANTON BY: ~j Mayor ~ -~/~ ATTEST: ~/~ ~y/~`~,(~ Cit Clerk - 7 ' ~ ~ Store #162-Canton, Jllinois ~• .' v ~ , NON-DISTURBANCE _COMMITMENT~PARICING AREAS In consideration of the execution and delivery of a certain lease dated as of 1978, by and between FULTOivT SQUARE CORPORATION, an ' Illinois corporation, as Landlord, and J. C. PENNEY COMPANY, INC., a Delaware corporation, as Tenant (the "Penney Lease") covering premises located in the pro - posed Fulton Square Shopping Center in the CITY OF CANTON, County of Fulton and State of Illinois, and other good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned, the City of Canton, a public body corporate, having an address at City Hall, Canton, Illinois 61520 (the "City"), the owner of certain parking areas located in i~he City of Canton, described on Exhibits A-1 and A-2 hereto as, respectively, the Primary Parking Area and Secondary Parking Area, hereby covenants and agrees as follows: 1. The Primary Parking Area and the Secondary Parking Area (collectively, "The Parking Area") are de- scribed, respectively, on Exhibits A-1 and A-2 attached hereto; 2. The City has good fee simple title to The Parking Area, free and clear of all contracts, leases, tenancies, party wall agreements, restrictions, violations, liens and encumbrances of every nature, except: ' (a) the Primary Parking Lot Use Agreement, which was recorded on , 1978, as Docu- ment # in Vol. , Page in the Office of t:he Recorder for Fulton County, Illinois; (b) the Secondary Parking Lot Use Agreement, which was recorded on , 1978, as Docu~-nent # in Vol. Page in the Office of the Recorder for Fulton County, Illinois; (c) TYie Penney Lease; and (d) The exceptions, if any, set forth on Exhibit B attached hereto; 3. The City is the sole owner of the Parking Area; 4. The Primary Parking Lot Use Agreement and the Secondary Parking Lot Use Agreement are both in full force and effect; 5. The Tenant under the Penney Lease and its customers, employees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of such Tenant and members of the public shall have and enjoy, during the term of the Penney Lease, the quiet and undisturbed non-exclusive use of the Parking Area and such use and rights under the Penney Lease shall not be adversely affected in any way by reason of any default by~Fulton Square Corporation under the Primary Parking Lot Use Agree- ment and/or the Secondary Parking Lot Use Agreement -1- ' " ~. r .~ in performing any of its obligations therein set forth on its part to be performed or by reason of termination or cancellation of 'the Primary Parking Lot Use Agreement and/or the Secondary harking Lot Use Agreement or by reason of any action taken by the City of Canton under the Primary Parking Lot Use Agreement and/or the Secondary Parking Lot Use Agreement with respect to any default of Fulton Square Corporation; 6. In the event of termination or cancellation of the Primary Parking Lot Use Agreement and/or the Second- ary Parking Lot Use Agreement, the non--exclusive use of the Parking Area by the Tenant and its customers, employees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of such Tenant under the Penney Lease and all rights of the said Tenant, its customers, em- ployees and invitees and the customers, employees and invitees of any subtenant, concessionaire or licensee of such Tenant thereunder will be fully recognized and protected by the City :~f Canton; and 7. The foregoing provisions of this Non-Uistu~-bance Agreement shall inure to the benefit of J, C. Penney Company, Inc., its successors and assigns ar~d be binding upon the City and its successors and assigns. IN WITNESS WHEREOF, the City of Canton has caused this instrument to be duly executed and sealed as of the t ~ day o f ~ (,(. G. (,(. S T , 19 7 8 . CITY OF CANTON By: Mayor ATTEST: .~•~~~ it Clerk WITNESS ~1,Cd ~ L D ~~ -2_ ~ . , . - ~ , . ~ , ~ - -~ sTA.TE of rr ;~.z~ozs: :ss COUNTY or FULTON p On this ,~! t ~ day of ~ (%t ,r ~C S % 1978, before me, the undersigned Notary Public, duly catxnissioned, qualified and acting within and for the County and State aforesaid, appeared in person . the within named l~ ~ ~L A,J ~ , e /S~U.u e f/ and 1g ,r/ C.,~S_ GU~f ~tES_• to me personally well. Down, who stated that they Caere the rlayor and City Clerk, respectively, of the City of Canton, and were duly authorized in their respective capacities to execute the foregoing instnIIr-ent for and in the name and behalf of said City, and further • stated and acknowledged that they had so signed, executed and de- livered said foregoing instr~nent for the consideration, uses and pur-- poses therein mentioned and set forth. IN TES'.L'IMO~IY WHE1.2F~F, I have hereunto set my hand and seal on the day .and year fi -st above mentioned. G` / NOTARY PUF3LTC My Commission Empires: ~, -