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HomeMy WebLinkAboutResolution #4046 - lease agreement with sarahs friendly hardware , � . RESOLUTION NO 4046 A RESOLUTION APPROVING A LEASE AGREEMENT WITH SARAH'S FRIENDLY HARDWARE, INC. AND THE CITY OF CANTON AND DIRECTING THE MAYOR TO EXECUTE AND DELIVER SAID AGREEMENT ON BEHALF OF THE CITY OF CANTON,ILLINOIS. WHEREAS, the Legal & Ordinance Committee of the City of Canton has determined that it is necessary and in the best interests of the City of Canton to enter into a Lease Agreement with SARAH'S FRIENDLY HARDWARE, INC. as set forth in Exhibit"A"attached hereto and incorporated herein; and WHEREAS,the City Council of the City of Canton has made a similar determination. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF CANTON,ILLINOIS,AS FOLLOWS: 1. That the Lease Agreement attached hereto and incorporated herein as E�chibit"A" is hereby approved by the Canton City Council. 2. That the Mayor of the City of Canton, Illinois is hereby authorized and directed to execute said Lease Agreement on behalf of the City of Canton. , 3. That this Resolution shall be in full force and effect immediately upon its passage by tl�e 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 at a regular meeting this 3`d day of December 2013 upon a roll call vote as follows: AYES: Aldermen Pasley, Lovell, Ellis, Pickel, Jim Nelson, Putrich, West NAYS: None ABSENT: Alderman Justin Nelson APPROVED: � Je fe . Fri , yor A TEST: Diana Pavley-Rock, City lerk , •- * LEASE AGREEMENT between the CITY OF CANTON, ILLINOIS and SARAH'S FRIENDLY HARDWARE, INC. Dated this 3rd Day of December, 2013 LEASE AGREEMENT This LEASE AGREEMENT, dated as of December 3 2013 (this "Lease"), is made between the CITY OF CANTON, an Illinois municipal corporation (hereinafter the "City" or "Lessor") and SARAH'S FRIENDLY HARDWARE, INC. (hereinafter "Sarah" or "Lessee"). The City, for and in consideration of the rents, covenants, and agreements hereinafter set forth and agreed to be paid, kept and performed by Sarah, has leased and by these presents does lease to Sarah the following described property located within the City of Canton, County of Fulton, State of Illinois, (the "Property") to-wit: A part of Lot 106 in the Original Town of Canton, Fulton County, Illinois described as follows: Beginning at the Southeast corner of said Lot 106, running thence North 22 feet 6 inches, thence West 165 feet to an alley, thence South 22 feet 6 inches, thence East 165 feet to the Place of Beginning. (Per Warranty Deed, recorded Jan. 13, 2011 as Doc. No. 1138005) EXCEPTING THEREFROM: Commencing at the southeast corner of said Lot 106, thence North 00°52'14" East (bearings assumed for descriptive purposes only) along the east line of said Lot 106 a distance of 22.54 feet to the southeast corner of the Parcel described in a deed recorded June 29, 1894 in Book 192, Page 142 in the Fulton County Recorder's Office, said southeast corner also being in the center of the brick wall as described in said deed, said southeast corner also being the Point of Beginning of the Parcel to be described: From said Point of Beginning, thence South 00°52'14" West along said east line of said Lot 106 a distance of 0.86 feet to the outside face of the existing brick building; thence North 89°07'41" West along said face 54.07 feet; thence South 00°52'19" West along said face 0.33 feet; thence North 89°OT41" West along said face 4.00 feet; thence North 00°52'19" East along said face 0.33 feet; thence North 89°07'41" West along said face 37.98 feet; thence South 00°16'26" East along said face 3.00 feet; thence North 89°08'07" West along said face 4.62 feet; thence North 00°52'19" East along said face 3.00 feet; thence North 89°07'41" West along said face 25.57 feet; thence South 00°52'19" West along said face 0.40 feet; thence North 89°07'41" West along said face 3.08 feet; thence North 00°52'19" East along said face 0.32 feet; thence North 89°07'41" West along said face 11.51 feet; thence North 00°52'19" East along said face 0.41 feet; thence North 89°07'40" West along said face 19.58 feet; thence North 00°52'19" East along said face 0.53 feet to the south line of said Parcel; thence South 89°07'41" East along said south line 160.36 feet to the Point of Beginning. Pin: 09-08-27-409-010 Common Address: 100 North Main Street, Canton, Illinois 61520 1 l. USE: To have and to hold the Property, to be used and occupied only by Sarah for businesses purposes related to the operation of a True Value Hardware Store only. 2. TERM: The term of this lease is for six years (6) beginning January 1, 2014 and ending December 31, 2020. 3. RENTAL: Sarah shall pay the City a fixed rental of Ten Dollars ($10.00), annually, the receipt and sufficiency of such payment is hereby acknowledged by the City. 4. ADDITIONAL PAYMENTS: Sarah shall pay for any and all utilities used on the Property, including, but not limited to: gas, electricity, water, sewer, and garbage pick-up. 5. TAXES: The City will pay any taxes that become due and payable during the term of the lease. 6. FIXTURES. Sarah agrees not to make any alterations, additions, improvements or changes in the premises without written consent of the City. 7. ASSIGNMENT; TRANSFER: Sarah shall not assign, delegate, transfer, lease, sublease or otherwise dispose of(collectively, "Transfer"), in whole or in part, any of its rights or obligations hereunder, to the Leased Premises to any person or entity (a "Transferee") without the prior written consent of City. 8. MAINTENANCE; REPAIR: Sarah shall, at Sarah's own cost and expense maintain the Property in a clean and orderly condition; cut the lawn as necessary; maintain the rock, mulch, loading dock, handrail, steps, storm sewer or repair the paved surfaces as necessary, keep the premises free and clear of all trash, rubbish and other nuisances; and make any other necessary repairs. 9. LESSEE REPRESENTATIONS AND WARRANTIES: As of the date hereof, Sarah hereby represents and warrants to the City that: a. Organization. Sarah is legally registered with the State of Illinois as Sarah's Friendly Hardware, Inc. (Illinois Secretary of State File Number 67917871), duly organized, validly existing and in good standing under the laws of the State of Illinois. b. Authority and Validity. Sarah has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Sarah of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of Sarah, and no other proceedings on the part of Sarah are necessary to authorize this Agreement or for Sarah to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of Sarah, enforceable in accordance with its terms, except as the same may be limited by applicable 2 bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity. c. No Violation or Conflict. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or result in the breach of any provision of the organizational documents of Sarah, (B) as of the date of this Agreement and conflict with or violate any law or Governmental Order applicable to Sarah or any of its assets, properties or businesses. d. Lien or Mort�a�e. Sarah will not, and will not create, assume or suffer to exist any Lien or Mortgage on the Leased Premises. 10. LESSEE REPRESENTATIONS, WARRANTIES AND COVENANTS: As of the date hereof, Sarah hereby represents and warrants to the City that: a. Or�anization. The City is an Illinois Municipal Corporation duly organized and existing under the laws of the State of Illinois. b. Authority and Validitv. Pursuant to 65 ILCS 5/11-75-5 the City has the authority to lease real estate for any term not exceeding ninety-nine (99) years and to execute, deliver and perform its obligations under a lease agreement and to consummate the transactions contemplated thereby. The execution, delivery and performance by the City of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of the City pursuant to 65 ILCS 5/11-76-2. The City's statutory authority to lease this Leased Premises is not subject to the notice by publication requirement as the lease is not in excess of twenty (20) years. People ex rel. Vauagniaux v. Ciry of Edwardsville, 219 Il1.Dec. 725 (1996). Therefore, no other proceedings on the part of the City are necessary to authorize this Agreement or for the City to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of the City, enforceable in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity. c. No Violation or Conflict. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or result in the breach of any provision of the organizational documents of the City, (B) as of the date of this Agreement, conflict with or violate any law or Governmental Order applicable to the City or any of its assets, properties or municipal businesses, or (C) as of the date of this 3 Agreement, conflict with, result in any breach of, constitute a default (or event that with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Lien on any of the assets or properties of the City, pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which Seller is a party. 11. RIGHTS RESERVED FOR LESSOR: The City reserves unto itself, its elected officials, employees and agents access to the premises and property at all reasonable times having given Sarah twenty-four (24) hours advance notice to make inspection thereof, and to make, repairs, alterations, additions and improvements to the property as may be necessary or desirable to the preservation of the property. 12. INSURANCE: In order to protect the City against liabilities that would not arise except for the use of the above described premises hereunder by Sarah, its employees, officials, agents and contractors, Lessee shall carry Commercial General Liability insurance naming the CITY OF CANTON, its elected officials, employees and agents as additional insured on a primary and non-contributory basis, to protect the City from and against any and all claims, demands, actions, judgments, costs, expenses and liabilities arising out of said use during the term of this agreement. The amount of insurance covering liability shall not be less than one million dollars ($1,000,000.00) as to any one occurrence and one million dollars ($1,000,000.00) in the aggregate with respect to bodily injury, including death, and property damages. Sarah shall also carry worker's compensation insurance with statutory limits and employees liability insurance with limits of five hundred thousand dollars ($500,000.00). Tenant shall also carry Excess Liability insurance with a minimum of Two Million Dollars ($2,000,000.00) applying excess of the above-required insurance, except Worker's Compensation. A Certificate of Insurance from the insurance carrier acceptable to the City, evidencing said insurance and providing for thirty (30) days' notice of cancellation, material change, expiration or lapse of said coverage shall be forwarded to the City prior to occupancy. 13. COSTS AND EXPENSES: PAYMENTS: Except as provided herein to the contrary, each party shall pay its own costs and expenses incurred in connection with the exercise of this lease Agreement. 14. DEFAULTS BY LESSEE: In the event of the failure of the Sarah to pay rent as set forth herein when same becomes due and payable or should Sarah breach any covenant herein contained, this Lease or Sarah's right to possession shall be terminated at the option of the City. Likewise, in the event that Sarah may be adjudicated insolvent or bankrupt, of if a receiver of the property of Sarah shall be appointed, such event shall constitute an event of default hereunder and shall, at the option of the City, cause termination of this lease. Prior to termination occurring to a default by lessee as set forth in this article, the City shall give lessee a notice in writing sixty (60) days prior to termination in the manner provided in article 15 4 hereof, during which time Sarah may cure such default by satisfying the stated grounds for termination. 15. TERMINATION: This Agreement shall terminate and be of no value upon the earlier to occur of(i) January 1, 2020; or (ii) uncured default as defined by Article 14; or (iii) six (6) months written notice from the City to the Lessee; or (iv) the mutual written consent of all of the parties hereto. 16. RIGHT OF FIRST REFUSAL: In conjunction with this Lease Agreement, the City is executing a First Refusal Agreement, attached hereto and incorporated herein as Exhibit A. Sarah will have the right of first refusal as defined by the terms in Exhibit A and may cause to be drafted and recorded, at Sarah's expense, a Memorandum of Agreement of Right of First Refusal. 17. NOTICES: Any notice, request, demand, waiver, consent, approval or other communication which is required or permitted to be given to any party shall be in writing and shall be deemed given only if delivered (or delivery is rejected) to the party personally or by next Business Day delivery by a nationally recognized courier service, or by registered or certified mail (return receipt requested), with postage and registration or certification fees thereon prepaid, addressed to the party at its address set forth below: To Lessor: City of Canton 2 North Main Street Canton, Illinois 61520 Attention: Mayor with a copy to: City of Canton 2 North Main Street Canton, Illinois 61520 Attention: City Attorney To Lessee: Sarah Carter Sarah's Friendly Hardware, Inc. 3105 North Bigelow Avenue Peoria, IL 661604 with a copy to: Sarah Carter Sarah's Friendly Hardware, Inc. 100 North Main Street Canton, IL 61520 5 or to such other address as such party may from time to time specify by notice given in the manner provided herein to each other party entitled to receive notice hereunder. 18. GOVERNING LAW: CONSENT TO JURISDICTION AND SERVICE OF PROCESS: a. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois. b. Each of the parties hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of Ninth Judicial Circuit Court of Illinois or federal court of the United States of America sitting in the Central District of Illinois and any appellate court from any jurisdiction thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such Illinois court or, to the fullest extent permitted by law, in such federal court. Each of the parties agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement. c. Each of the parties irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in the Ninth Judicial Circuit Court of Illinois or federal court. Each of the parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each of the parties hereby consents to service of process by mail. 19. ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the parties with respect to the matters covered hereby and supersedes all prior agreements and understanding with respect to such matters between the parties. 20. AMENDMENT; SUCCESSORS: COUNTERPARTS: The terms of this Agreement shall not be altered, modified, amended, waived or supplemented in any manner whatsoever except by a written instrument signed by each of the parties. Except as otherwise set forth herein, nothing expressed or implied herein is intended or shall be construed to confer upon or to give to any person, other than the parties, any right, remedy or claim under or by reason of this Agreement or of any term, covenant or condition hereof, and all the terms, covenants, conditions, promises and agreements contained herein shall be for the sole and exclusive benefit of the parties and their successors and permitted assigns. This Agreement may be executed in one 6 or more counterparts, each of which, when executed, shall be deemed an original but all of which, taken together, shall constitute one and the same Agreement. 21. INDEMNITY: Sarah does hereby fully RELEASE, REMISE and forever DISCHARGE the City, its agencies, and agents from all manner of action and actions, cause and causes of actions, claims, demands, suits, debts, dues, damages, costs, loss of service, sums of money, accounts, bonds, bills, specialties, controversies, agreements, promises, variances, immunities, losses, trespasses, judgments, executions, expenses or compensations on account, whatsoever, whether known, unknown, foreseen unforeseen, patent or latent, in law or in equity, which Sarah may have against the City, growing out of or original or arising out of any transaction, occurrence, event or incident occurring at the leased Premises, and do hereby covenant with the City to indemnify and save it harmless for all said claims, demands, costs, expenses and compensation on account of or in any way arising out of any incident during the term of this agreement, including, but not limited to injury which is the result of ice and snow accumulation and further, said Sarah understands and acknowledges the significance and consequence of such specific intention to release all claim, and hereby assumes full responsibilities for any injuries, damages or losses it may incur from entering into this Lease Agreement, as Sarah uses said lot at its own risk. 22. SEVERABILITY: If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in a manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible. LESSEE LESSOR SARA�I-'S FR E L�LY RDWARE, INC., CITY OF CANTON, an Illinois Municipal �_—,___, __�_ .. __ -- - - Corporation ; __. ! By• ---g�, rt e: Presi en Jeffer rit , ayor 7 ATTEST: ATTE : '� . g �' -,� �L.-,� r�C � Sy: y. �- � Name: Diana Pavley Title: Secretary City Clerk (Corporate Seal) (Municipal Seal) 8 FIRST REFUSAL AGREEMENT THIS AGREEMENT, made this day of December, 2013, between the Owners and the Grantee hereinafter described, Witnesseth: WHEREAS, the City of Canton, an Illinois municipal corporation, (hereinafter referred to as the "Owners"), is the owner of certain real estate located within the City of Canton, County of Fulton and State of Illinois (hereinafter referred to as "Property") legally described as follows: A part of Lot 106 in the original town of Canton, Fulton County, Illinois described as follows: Beginning at the Southeast Corner of said Lot 106, running thence North 22'6", thence West 165 feet to an alley, thence South 22' 6", thence East 165 feet to the place of beginning. PIN: 09-08-27-409-010 Common Address: 100 N. Main Street, Canton, Illinois 61520 WHEREAS, Sarah's Friendly Hardware, Inc., whose address is 119 W. Main Street, Elmwood, Illinois, 61529 , is leasing from said Owners the above-described Property from January 1, 2014, through January 1, 2020; and, in consideration of said Lease, said Grantee desires certain rights of first refusal, as hereinafter described, with respect to the above-described Property; NOW, THEREFORE, in consideration of said Lease and for other good and valuable consideration, it is agreed by and between said Grantee and said Owner of the above-described Property as follows: 1. In the event that, at any time between, January l, 2014 through January 1, 2020, said Owner shall obtain an offer from another party for the purchase of all or part of the above-described Property, which offer said Owner is willing to accept, then said Owner shall give written notice of such offer to the Grantee hereunder, with a copy of such offer, and then the Grantee shall have the right, exercisable by written notice to the Owner within twenty (20) days after receiving the Owners' notice, to purchase the same Property upon the same price and terms as contained in such offer. If the Grantee refuses such offer, or fails to give notice within said period of twenty (20) days, then the Owner may proceed to accept such offer. However, in the event that, after said refusal or failure to give notice on the part of Grantee, the price of terms of such offer have been changed by the potential buyer, then the Grantee shall have the same right of first refusal with respect to the new or changed offer, in the manner provided above. 2. This Agreement shall be binding on said Owner and its successors as Owner of the above-described Property, and shall inure to the benefit of the Grantee and its successors as Lessee of the aforementioned Property until January 1, 2020. 3. If the Grantee so desires, they may cause to be drafted and recorded a Memorandum of Agreement of Right of First Refusal or this agreement. IN WITNESS WHEREOF, said Owner and Grantee have caused this agreement to be signed by them, respectively, as of the day and year first written above. LESSEE LESSOR SARAH'S FRIENDLY HARDWARE, INC. CITY OF CANTON, an Illinois Municipal �, Corporation �l By: � By: �,��/.�'"��� President , Jeffery�Fri , ayor � �� _-_._.—.... ,------ . ATTEST: � ATTES : By: ` �� � By: °" �' L'c' �C, Secretary Diana Pavl ock, C' y Clerk (Corporate Seal) (Municipal Seal)