6. 1993 AGREEMENT between PD #70 DEVELOPER AND OUTER DRIVE EAST
This Agreement entered into as of the 8th day of February, 1993 between Illinois Center Plaza Venture, an Illinois limited partnership, ("ICPV") and The 400 Condominium Association, an Illinois not-for-profit corporation (the Association")
W I T N E S S E T H
WHEREAS, on September 17, 1969 the City of Chicago adopted a Residential Business Planned Development ("RBPD No. 70") which established development parameters for the property generally bounded by Wacker Drive, Lake Shore Drive, Randolph Street and Michigan Avenue (the "1969 Planned Development")
WHEREAS, the parties to this Agreement entered into an agreement memorialized in a letter from ICPV to Grorge Caleel, President of the Association dated February 5, 1979 (the "1979 Agreement"), which established certain development specifications for the property 500 feet north of the building commonly known as 400 East Randolph Street, Chicago, Illinois (the "400 Building"), east of Field Boulevard and west of Lake Shore Drive as existing on the date hereof (the "Restricted Property") in lieu of the provisions of an amendment that was adopted in 1979 to the 1969 Planned Development (the "1979 Amendment");
WHEREAS, ICPV has applied for a 1993 amendment to RBPD No. 70 as amended in 1979 (the "1993 Amendment"); and
WHEREAS, the parties to this Agreement now desire to re-state and re-affirm the 1979 Agreement and modify its provisions to reflect the adoption of the 1993 Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1. This Agreement supersedes the 1979 Agreement.
2. ICPV and the Association hereby agree that notwithstanding the provisions of the 1979 Amendment or the 1993 Amendment:
(A) Any buildings to be hereafter constructed within the southern 250 foot portion of the Restricted Property, ICPV shall comply with the site coverage limitations and off-street parking minimums of the 1969 Planned Development; and
(B) Any residential buildings to be hereafter constructed in the northern 250 foot portion of the restricted Property, ICPV shall also comply with the site coverage and off-street parking requirements of the 1969 Planned Development.
Provided, however, that any townhouses to be hereafter constructed on the Restricted Property between the Upper Level (plaza) and +30 feet above the Upper Level, ICPV may develop said townhouses in accordance with the site coverage limitations provided in the 1993 Amendment.
3. ICPV agrees to cooperate in the planning of a pedestrian traffic connection between the 400 Building and the pedestrian walkway system which will eventually be constructed when the adjacent property to the north of the 400 Building and east of Field Boulevard is developed. To that end, ICPV shall notify the Association in writing six months prior to commencement of construction of a building at such location and the Association will provide plans to ICPV of the base of the 400 Building within two months of receiving such notice. After receipt of plans of the base of the 400 Building, ICPV will direct its architect to provide for the design for the adjacent property location (s) for a pedestrian traffic connection between the 400 Building and the pedestrian walkway system. It shall be the option of the Association to elect to connect to said pedestrian walkway system.
4. ICPV hereby represents to the Association that ICPV, Metropolitan Structures and Illinois Center Corporation are the only parties presently holding an ownership interest in or purchase contracts or purchase options on the undeveloped portions of the Restricted Property. ICPV, Metropolitan Structures and Illinois Center Corporation hereby agree that the terms of this agreement shall be binding on their successors and assigns, and that in selling or leasing any portion of the Restricted Property this Agreement will be incorporated by reference in any contract for sale and deed or conveyance or lease for said property, and shall constitute a restriction thereon.
5. ICPV hereby agrees with the Association that this Agreement shall be executed in five counterparts with executed counterparts to be retained by the parties hereto and an executed counterpart to be filed with the City Council Committee on Zoning and the City of Chicago Department of Planning and Development and with one counterpart to be delivered to the Clerk of the City of Chicago.
6. Nothing in this Agreement shall be deemed to modify the effect of zoning changes enacted after due notice and hearing subsequent to the 1993 Amendment, except any zoning changes initiated or consented to by ICPV or its successors or assigns.
7. If the performance of any of the covenants herein would violate such future zoning changes, (eg. a city maximum limitation on parking which would be less than the 1969 Ordinance for residential buildings), then said covenants shall be deemed null and void from the effective date of said zoning change. However, all other covenants herein, the performance of which would not violate said zoning changes, shall remain in full force and effect.
8. Any liability of ICPV hereunder shall be collected solely from the net assets of ICPV. No partner of ICPV nor any such partner's separate property shall have any liability hereunder. A deficit capital account of a partner of ICPV shall not be deemed an asset or property of ICPV.
9. Metropolitan Structures and Illinois Center Corporation hereby represent to the Association that they have the authority to execute this Agreement as General Partners of ICPV and to bind ICPV as a result.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement effective as of the day and year first above written.
ILLINOIS CENTER PLAZA VENTURE,
an Illinois limited partnership by its
Illinois Center Corporation
By Metco Properties,
An Illinois limited partnership
a General Partner
The 400 Condominium Association, an Illinois
2. Hearing Transcript Excerpts (full pages available from NEAR) and discussion are presented on the right side of this webpage.
4. 1993 PLAN COMMISSION TRANSCRIPT EXCERPTS:
Lawyers Rolando Acosta and Jack Guthman spoke in behalf of the developer applicant. Mr. Acosta stated on page 100: “There is an agreement between the applicant and 400 East Randolph condominium association that was entered into in 1979 at the time of the 1979 amendment. The applicant intends to abide by that agreement. We do not believe that this amendment (1993) violates that agreement. We do not believe that this amendment (1993) voids that agreement.”
Samuel Frieman represented the 400 Condominium Association. He read the 1979 Agreement into the record of the hearing… Point Three: “provided however in the development of townhouses between the upper level plaza and plus thirty feet above the upper level, anywhere north of the 400 building and Harbor Point, the Venture may develop said townhouses in accordance with the site coverage limitations provided under the ’79 Agreement. (Note that the town home "site coverage" was limited to 60% of a single parcel above the “plaza level” of Upper Randolph. LSE appears to be using 85% - 55' out of 65' parcel depth.)
This venture agrees to cooperate in the planning of pedestrian traffic connection between the 400 Building and the pedestrian walkway system, which will eventually be constructed when the adjacent property to the north of the 400 Building is developed.
To that end, the 400 Condominium Association within one year, will provide plans to the Venture, exhibit these communications showing that those plans were provided.”
On page 140, Mr. Frieman continued: “Four, major pedestrian pedway. The planned enclosed all-weather walkway designed to accommodate pedestrian accessibility at the arcade level through the 1979 amendment and continuing to date (1993) ran from Michigan Avenue to the Lake on its east-west path. The proposed amendment would end the walkway at the west line of Field Boulevard and I believe that’s being modified too as of this week.” (It was not modified in the published final document, as promised to ODE and the Plan Commission.) On page 146, he summarized: “Moreover, we object to the disregard of the substance to the 1979 letter agreement, Exhibit A, concerning development in the area east of field Boulevard and Outer Drive East building’s connection to the pedestrian pedway. We urge the Chicago Plan commission and the Chicago City Council to recognize and support the principles and promises of that agreement and incorporate it in the amendment.
On page 159, Chairman Hedlund addressed the applicant Mr. Acosta: “Your position is then that there, that the application that we’re being asked to approve does not change anything previously agreed to between the developer and the 400 condominium Association.”
Mr. Acosta replied: “That is correct.”
Chairman Hedlund: “That is your position.”
Mr. Acosta: “And if the 400 Condominium Association continues to be nervous, we are more than happy to retype this letter and resign it today.
Chairman Hedlund: “Retype the 1979 letter?”
Mr. Acosta: “Yes. We can type the verbatim, except obviously for the language of changes post ’79 and we would have it executed by the partners of the Venture.
Chairman Hedlund: “ And I assume your willingness then, if we were to condition our approval to a republishing of that letter and signing by the developer and Condominium Association, you would consent to that?”
Mr. Acosta: “Yes.”
Chairman Hedlund: “All right. That solves that problem.”
(It was updated and signed on 2-8-1993.)
Mitchell Carden of the Metropolitan Planning Council received the amended PD only that morning, and stated on page 198: “We also feel that a pedestrian walkway must extend all the way to Lake Shore Drive as in the 1979 amendment and we cite the illustration and page in the ’79 amendment. Rather than ending at Field Boulevard, as is proposed in the new amendment. This leaves all five residential buildings at the end of Randolph and Harbor Drive without any access to Michigan Avenue or to Illinois Center. The 1969 Planned Development had a very specific timeframe for completion of pedestrian walkways, park and other infrastructure improvements. All of this was to be completed at the end of 20 years, in 1989.” (emphasis added to excerpts)
eft) included this : "5. LE shall agree to extend the pedway to the east side of Field Drive in exchange for certain items to be negotiated in a future side letter agreement between 400 and LE. LSE unilaterally used greater coverage without reaffirming any Pedway assurances, that is a violation of the 1993 400 Agreement. Note that the "site coverage" was limited to 60% of a single parcel above the “plaza level” of Upper Randolph. LSE appears to be using 85% (55' out of 65' parcel depth). This is a significant coverage violation of the 1993 Covenant Agreement that remains in effect and would not permit the more liberal coverage of the 2001 Amendment..
It has not been determined if the developer has met the off-street parking requirements, but this should be confirmed. That could be another enforcable violation.
Suggested Reading Order..."1." The ODE AGREEMENTS (both 1993 and 2001) and Excerpts of Planned Development AMENDMENTS are presented on the left side of this webpage...... Please note that AGREEMENTS are between ODE and the Lead Developer...and AMENDMENTS are between the Lead Developer and the City of Chicago.
Chicago has copies of the Agreements, but claim they do not have the responsibility to enforce the Agreements, or even consider the Agreements. A judge would rule the city is incorrect.
3. FOR REFERENCE...EXCERPTS FROM 1979 PD #70 AMENDMENT:
"For the purposes of this Planned Development, the 'Major Pedestrian Walkway' shall consist of an enclosed all-weather walkway, having a minimum unobstructed vertical clearance of 9 feet (or lower as required by street conditions) and a width of 40 feet or 25 feet, designed to accomodate pedestrian access at the Arcade Level as described and shown on the Pedestrian Walkway System plan herewith attached. It shall be the responsibility of the applicant to provide continuous major pedestrian walkways at Arcade Level as referred to herein, subject to the review of the Department of Public Works and approval by the Department of Planning, City and Community Development.."
(This establishes the Pedway financial responsibility and understanding by BOTH parties BEFORE the 1993 Agreement)
7. REFERENCE...EXCERPTS FROM 1993 PD #70 AMENDMENT:
"The pedestrian walkways dipicted on the Pedestrian Walkway System Map shall consist of an enclosed all-weather walkway, having a minimum unobstructed vertical clearance of 9 feet... It shall be the responsibility of the Applicant to provide continuous pedestrian walkways at the Arcade Level..."
(This establishes the MUTUAL UNDERSTANDING for the Pedway financial responsibility AFTER the 1993 Agreement - It was the same in 1993 - and is still effective and the same in 2007.
Note that the financial responsibility for extending the Pedway to ALL buildings in the Planned Development has been the responsibility of the LEAD DEVELOPER since 1969. That was the common understanding of both parties and ,of course, the understanding of the Plan Commission Chairman that helped both parties negotiate. The 1993 ODE Agreement was signed by the lead developer and the 400 Condominium Association. The Agreement was specifically considered to be a land covenant that ran with the land and superceded any PD change that the developer would draft and get approval of the Dept. Of Planning and the Chicago City Council.
Even though Lakeshore East was able to draft their financial responsibility out of the 2001 PD Amendment, the 1993 Agreement TRUMPS that quiet manuever to dump financial obligation for the Pedway completion outside Sub Area E to "OTHERS". An Illinois FOIA request revealed that there is NO documentation to back-up or justify this estimated $11 million "developer savings".
Note the clear transcript language: “Your position is then that there, that the application that we’re being asked to approve does not change anything previously agreed to between the developer and the 400 condominium Association.”
Mr. Acosta replied: “That is correct.”
The Department of Planning could have been aware of this Agreement, but they legally do not have the responsibility to enforce private agreements. The COVENANT Agreement has to be enforced by the parties to the Agreement. (added 10-31-07...or persons having "beneficial interests" in enforcing the covenant...such as the 155, 175, or 195 board or managements: Pedway extension to Lakefront from Michigan avenue)
Note: Any changes initiated or consented to by ICPV or its successors or assign (read Lakeshore East) does NOT modify this agreement !!
9. March 15, 2001
This agreement shall summarize the discussion and agreements reached by and between Lakeshore East LLC ("LE") and individual officers and representatives of the 400 Condominium Association ("400") regarding various issues involving the proposed Lakeshore East development and Outer Drive East ("ODE") located at 400 East Randolph Street. This agreement is not binding upon 400 until approved by the Board of Directors. It is intended to outline the understanding between LE and 400 and form the basis for a future agreement.
The undersigned agree to the following:
1. 400 acknowledges LE has met with 400 and reviewed the plans being presented to the Chicago Plan Commission.
2. For the proposed dwelling units immediately adjacent to the north property line of ODE, no structure shall extend above the finished floor elevation of the seventh (7th) floor of ODE.
3. For the proposed dwelling units immediately adjacent to the north property line of ODE, the south facade of these units, which is exposed and adjacent to the garage shall be clad with masonry, e.g., face brick, but not concrete block or exposed concrete.
4. LE warrents that its direct actions will not interrupt the chilled water service to ODE.
5. LE shall agree to extend the pedway to the east side of Field Drive in exchange for certain items to be negotiated in a future side letter agreement between 400 and LE.
6. 400 shall offer no objections at any public hearing conducted by the City, including the Plan Commission hearing, to any proposed zoning changes.
Agree and acknowledged by:
LAKESHORE EAST, LLC
s/s Joel Carlins 3-15-2001
Joel M. Carlins, Manager Date
400 CONDOMINIUM ASSOCIATION
s/s Dennis J. Gates 3-22-01
Dennis J. Gates, President Date
s/s Steve Gerol 3-23-01
Steve Gerol, Vice-President Date
s/s Lewis R. Elin
Lewis R. Elin, Secretary Date
s/s John Marovich 3-23-01
John Marovich, Treasurer Date
10. "Lakeshore East shall agree to extend the pedway"... This merely repeats the agreed requirement in the 1993 Agreement that remains in effect in 2007, and opens negotiations IF Lakeshore East desires any cooling water connection, for example. The possible cooling water connection was the only issue being discussed in the March, 2001 negotiations. However, other concessions could be considered such as a higher park home height backing on the ODE cabanas and walkway, but not adjacent to the view from the pool.
8. A very useful way to more completely understand the 1993 Agreement is contained in two companion webpages that can be printed in color, taped together in two long scrolls, and studied side-by-side. It is recommended that one or two persons be assigned to study these two pages, so that they could be a resource to the board and the zoning lawyer.
The two related pages are:
Another useful webpage is:
(needs to be printed in horizontal mode)
5. Please note the two references in the 1993 transcript to the Pedway guaranteed by the developer to run from Michigan Avenue to Lake Michigan on its east-west path. That has been the INTENT since the requirement was originally negotiated by Chicago into the Planned Development #70 in 1969. That objective was repeatedly emphasized in many of the Amendments.
After Alderman Natarus "relieved" the developer of the financial responsibility to fund the Pedway outside of Sub Area E in the 2001 PD AMENDMENT, the 400 1993 AGREEMENT is the ONLY remaining REQUIREMENT that would permit direct access to 155 Harbor, and indirect access through an internal garage secure walkway to the 175/195 attached garage adjacent to the 155 garage.
And it is the ONLY remaining enforceable requirement that would allow handicapped and wheelchair-bound residents of all buildings (including 400) to have access by the Pedway to BOTH Michigan Avenue (and downtown Chicago) AND Lake Michigan (via a potential "required vertical connection" at the corner of Randolph and Harbor).
The 3 available reference notebooks of PD #70 documents were copied by Attorney John Pikarski in 2001 and may still be available to ODE. Now there are 5 notebooks (in 2007) and they are available to ODE for copying. (They were recently copied by the Buckingham attorneys for use in ongoing discussions with Lakeshore East) The cost to ODE for lawyers or clerks searching for all of the relevant documents would be an unnecessary expense.
11. ADDED 10-29-2007
It was always mysterious how Lakeshore East was able to dump the long-standing financial responsibility to fund the Pedway extensions to all buildings that was always the responsibility of the "lead-developer" since 1969. Lakeshore East drafted the complete amendment to PD #70 in 2000, that was passed in March, 2001, and the financial responsibility had somehow been "silently switched" with no notice, discussion, public knowledge, or input, to "by others" in a single graphic note in the 91-page document.
Several years ago, Richard Ward submitted an Illinois Freedom of Information request for ANY documentation that even mentioned that financial switch, or hopefully gave reason, justification, or explanation....but none existed. The "slight-of-hand" has never been ligitated, but remains evidense of administrative or political tampering.