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HomeMy WebLinkAboutRESOLUTIONS-1992-018-R-9218-R-92 • A RESOLUTION Authorizing Execution of an Indemnification Agreement Pertaining to Acquisition of Certain Real Estate WHEREAS, the City Council of the City of Evanston has considered the acquisition of real estate hereinafter described in connection with a tax increment financing redevelopment project; and WHEREAS, the City Council has determined that it is necessary to acquire said real estate for redevelopment purposes pursuant to the provisions of Section 1 1-74.4-4 of Chapter 24 of the Illinois Revised Statutes; and WHEREAS, the City Council has considered said acquisition pursuant to a proposed indemnification agreement which pertains to acquisition costs and environmental liability and which is marked Exhibit "A" attached to this resolution: NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS: SECTION 1: That it is necessary, required, desirable and for the best interest of the City of Evanston that the real property legally described as: GURTZ CONSOLIDATION OF PARTS OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 41 NORTH, RANGE 13, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK, COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS: I! t, LOT I IN HESS SUB. OF PART OF THE N. 300 FT. OF THE W. 2/3 OF THE SW 1/4 OF THE SW 1/4 OF SECTION 24 - 41 - 13. REC. FEBRUARY 21, 1957. DOC. 16831789. CERTIFICATE OF CORRECTION RECORDED. APRIL 22, 1957, DOC. 16883249. i4 :i !' and LOT 1 IN HARTREY - KEENEY CORP. RESUB. OF PART OF N. 5 FT. OF j LOT A IN OAKTON CONSOLIDATION AND ALL OF LOT 2 IN HESS i SUBDIVISION REC. JANUARY 28, 1965, DOC. 19032512. and commonly known as 646 Pitner Avenue, Evanston, Illinois which said property lies wholly within the boundaries of the City of Evanston, be acquired pursuant to an i! i; indemnification agreement pertaining to acquisition costs and environmental liability.', i 0 18-R-92 • SECTION 2: That the City Manager is hereby authorized and directed to sign and the City Clerk is hereby authorized and directed to attest to an indemnification agreement with Joseph J. Freed and Associates, Inc., an Illinois Corporation on terms and in substantial conformance with Exhibit A attached hereto and incorporated herein by reference. SECTION 3: That the City 'Manager is hereby authorized to negotiate any additional terms to the indemnification agreement conditions as he may determine to be in the best interest of the City. SECTION 4: The resolution shall take effect and be in full force from and after its passage. ATTEST: City Clerk j Adopted: 29Y42/43 0 •'�t`:�-tom �., �'t- � 1/ � c-:.i•7---•- / Mayor jdk ,#"11-11/19/91 INDM%INIFICATION AGREr.'M= EXHIBIT "A" 18-R-92 This Indemnification Agreement ( "'Agreement"' ) is made this day of 1991 by and between the City of Evanston, Illinois, a ("City"), and Joseph J. Freed and Associates, Inc., an Illinois corporation ("Freed"). R E C I T A L S A. Freed is the developer of the Main Street Commons Shopping Center ( Center^') located on the south side of Main Street just east of McCormick Boulevard in Evanston, Illinois. In an effort to increase retail sales generated by the Center, and create new vitality for the entire southwest area of Evanston, Freed has conceived of a redevelopment plan which includes an expansion of the Center to permit the construction of a Sam's Club, an affiliate of Wal-Mart Stores, Inc., a Delaware corporation ("Wal-Mart") on property consisting of approximately 13.5 acres of land ("Property"). A portion of the Property consists of a parcel of land legally described on Exhibit A attached hereto and hereby made a part hereof, which is privately owned and currently operated as a scrap yard ("Scrap Yard"). B. In connection with said redevelopment plan, the City intends to exercise its eminent domain powers to acquire the Scrap • Yard and Freed has agreed to enter into this Agreement with the City. In consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The recitals set forth above are accurate and hereby restated by this reference. 2. The City shall promptly commence an action to acquire the Scrap Yard pursuant to its eminent domain powers and diligently prosecute the completion of the same subject to the terms and conditions of this Agreement. 3. Prior to ' the commencement of the eminent domain proceedings, the City and Freed shall agree upon the action to be taken by the City to determine the environmental condition of the Scrap Yard, including, but not limited to, hiring environmental consultants and authorizing an environmental audit. Upon commencement of the eminent domain proceedings, the City shall: (i) promptly perform or cause to be performed the environmental audit of the Scrap Yard; (ii) regularly consult with, obtain direction from and advise Freed regarding the progress of such environmental audit and the eminent domain proceedings, any 0 • negotiations with the owner of the Scrap Yard, and any other information the City obtains regarding the Scrap Yard; and (iii) promptly deliver to Freed the Scrap Yard appraisal, the environmental audit and all other reports of investigations performed in connection with the City's acquisition of the Scrap Yard. 4. Subject to the provisions of this Agreement, Freed shall reimburse the City for all costs and expenses incurred by the City in connection with the eminent domain proceedings, including, but not limited to, the award paid to the owner of the Scrap Yard in connection therewith, the City's reasonable attorney's fees and the costs of the Scrap Yard appraisal and environmental audit and related costs required in connection with said eminent domain proceedings. Upon the acquisition of the Property by the City, the City shall simultaneously convey the Property at the direction of Freed. 5. Subject to the provisions of this Agreement, Freed shall indemnify, hold harmless, and defend the City and any current or future officer, director, employee, or elected official of the City (collectively, the "Indemnitees") from and against any and all claims, liabilities, causes of action, losses, damages, expenses, costs and assertions of claims or liabilities, incurred by Indemnitees arising out of or in connection with the environmental condition of the Scrap Yard (all of the foregoing are referred to herein collectively as the "Liabilities" and • individually as a "Liability") whether or not any such Liability is asserted against the City as an owner, operator, party in possession or otherwise, under any state, federal or local law or regulation pertaining to the release of contaminants of any nature; provided, however, that any such Liability arose as a result of either (i) the City's commencement of or continuing prosecution at Freed's request of the eminent domain proceedings, or (ii) the City's acquisition of title to the Scrap Yard at Freed's request pursuant -to the eminent domain proceedings, and provided further that the City did not, by its action or inaction (other than the prosecution of the eminent domain proceedings at Freed's request or the performance of the City's other obligations hereunder at the request and with the consent of Freed), increase the potential liability of the City for environmental defects in the Scrap Yard. The provisions of this Paragraph 5 shall survive the termination or successful completion of the eminent domain proceedings and the termination of this Agreement. C� 6. Freed shall have the right at any time during the eminent domain proceedings to direct the City to terminate the proceedings. Upon termination of the eminent domain proceedings by the City pursuant to the direction of Freed, Freed shall reimburse the City for (i) all costs incurred by the City in connection with the proceedings up to the date of Freed's notice of termination, including, but not limited to, the City's reasonable attorney's fees, the costs of the Scrap Yard appraisal -2- • and environmental audit and other costs reasonably incurred by the City in connection with said proceedings, and (ii) all costs incurred by the City in connection with said termination, including the Scrap Yard owner's reasonable attorney's fees. Notwithstanding anything in this Agreement to the contrary, if the City elects to continue with the eminent domain proceedings after receipt of notice from Freed to terminate the same, then Freed shall have no responsibility or obligation to the City under this Agreement whatsoever for any action taken by the City in connection with the Scrap Yard from and after the date of said notice. 7. Time is of the essence of this Agreement. 8. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter hereof, and the same may not be amended, modified or discharged except by an instrument in writing signed by the party to be bound thereby. 9. If any provision, condition, covenant or other clause, sentence or phrase of this Agreement shall become null and void or illegal for any reason as determined by order of any court of competent jurisdiction, the remaining portions shall remain in full force and effect. Notwithstanding the foregoing, if any provisions of this Agreement determined by any such court to be unenforceable go to the essence of this Agreement so that the purpose of this Agreement can not be fulfilled, specifically •including, but not limited to, the enforceability of the rights of Freed hereunder, then notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate as of the date of any such court order. • 10. Waiver of any breach or failure of any term or condition of this Agreement by either party shall not be construed as a waiver of any subsequent breach or failure of the same term or condition, or waiver of any other term or condition of this Agreement. No party ,to this Agreement may assign, by operation of law or otherwise, all or any portion of its rights, obligations or liabilities under this Agreement without the prior written consent of the other party to this Agreement, except that Freed may assign to Wal-Mart any or all of its rights hereunder, including, but not limited to, the right to direct the conveyance of the Property. 11. If either party shall fail to perform its obligations hereunder, the other party shall have the right to pursue all legal and equitable remedies available to it, provided that such failure to perform remains uncured after the expiration of twenty (20) days after written notice thereof from the nondefaulting party. Without limiting the generality of the foregoing, if any default by Freed hereunder shall remain uncured after the expiration of the aforesaid notice period, the City shall have the right, but not the obligation, to terminate the eminent domain proceedings with notice to but without the consent of Freed. All -3- • costs, expenses and attorneys' fees incurred by the prevailing party in connection with the enforcement of the terms and provisions of this Agreement shall be paid by the unsuccessful party. 12. Notwithstanding anything in this Agreement to the contrary, if the eminent domain proceedings have not been completed on or before three (3) years from the date of filing of said proceedings, then unless such proceedings have been delayed due to (i) pending litigation or other matters beyond the control of Freed or (ii) the failure of the City to comply with .the terms of this Agreement (in the case of any such delay said three-year period shall be increased by the number of days of all such delays), the City shall have the right, but not the obligation, to terminate the eminent domain proceedings with notice to but without the consent of Freed. 13. This Agreement has been executed and delivered in, and shall be governed by and in accordance with the laws of, the State of Illinois. 14. All notices, requests, demands and other communications made in connection with this Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery, if delivered to the persons identified below in person, by courier service or by facsimile copy (with original copy mailed the same day), or two (2) days after mailing if mailed by first class • certified mail, postage prepaid, return receipt requested, addressed as follows: • If to the City: City of Evanston 2100 Ridge Avenue Evanston, Illinois 60201-2796 Attention: City Manager Fax: (708) 328-0267 with a copy to: Jack M. Siegel, P.C. Altheimer & Gray 10 South Wacker Drive, Suite 4000 Chicago, Illinois 60606 Fax: (312) 715-4800 -4- • If to Freed: Mr. Joseph J. Freed Joseph J. Freed and Associates, Inc. 1000 Capital Drive Wheeling, Illinois 60090 Fax: (708) 215-5282 with a copy to: Mr. Edward E. Yalowitz Holleb & Coff 55 East Monroe, Suite 4100 Chicago, Illinois 60603-5896 Fax: (312) 807-3900 Such addresses may be changed from time to time by means of a notice given in the manner provided in this paragraph. 15. The City acknowledges and agrees (i) that Freed has executed this Agreement in furtherance of a plan of redevelopment for the Center, which includes the acquisition of the Property by Wal-Mart, (ii) that in connection with said acquisition, Wal-Mart will be consulted regarding the decisions and actions to be taken by Freed hereunder, and (iii) that Freed's decisions and actions hereunder may be based on advice or pursuant to directions from Wal-Mart. is The parties hereto have duly executed this Agreement as of the date first above written. Attest: • City Clerk CITY OF EVANSTON, By: Mayor JOSEPH J. FREED AND ASSOCIATES, INC. By: Joseph J. Freed, President M7=