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HomeMy WebLinkAbout#5090 Termination Sarah's Friendly Hardware RESOLUTION NO 5090 A RESOLUTION APPROVING A NOTICE OF TERMINATION OF LEASE BY AGREEMENT OF PARTIES (SARAH'S FRIENDLY HARDWARE, INC. AND THE CITY OF CANTON) AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE AND DELIVER SAID AGREEMENT ON BEHALF OF THE CITY OF CANTON, ILLINOIS. WHEREAS, the City of Canton owns a lot on the corner of Chestnut Street and Main Street, common address of 100 North Main Street, Canton, Illinois ("Property"); and WHEREAS, the City of Canton and Sarah's Friendly Hardware, Inc. ("Sarah's") entered into a lease with a term of December 3, 2013 through December 31, 2020; and WHEREAS, Sarah's previously discontinued the operation of business at 100 North Main Street, Canton, Illinois and the property has remained unused since that time; and WHEREAS, the City has someone interested in leasing the Property and the City desires to lease this property to help bring business and commerce to the downtown business area; and WHEREAS, the Legal & Ordinance Committee of the City of Canton has determined it is necessary and in the best interests of the City of Canton to agree to terminate the lease between the City and Sarah's and the Notice to Terminate is 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: I. That the Notice of Termination of Lease by Agreement of Parties is attached hereto and incorporated herein as Exhibit"A" is hereby approved by the Canton City Council. 2. That the Mayor and City Clerk of the City of Canton, Illinois are hereby authorized and directed to execute said Notice on behalf of the City of Canton. 3. That this Resolution shall be in full force and effect immediately upon 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 at a regular meeting this 18TH day of April, 2017, upon a roll call vote as follows: NLR Documents/Resolution 04/17/2017 AYES: Aldermen Justin Nelson, Gerald Ellis, John Lovell, Angela Hale, Craig West, Tad Putrich, Ryan Mayhew NAYS None ABSENT: None ABSTAIN: None APPROVED: ( Je A'Fritz, Mayor AA" . ,r' Di. . avley-Roc , City C er NLR Documents/Resolution 04/17/2017 NOTICE OF TERMINATION OF LEASE BY AGREEMENT OF PARTIES The Lease between the City of Canton ("City") and Sarah's Friendly Hardware, Inc. ("Sarah's") dated December 3, 2013, for the lease of property with a common address of 100 North Main Street, Canton, Illinois 61520 and with a property identification numbers of 09-08- 27-409-010, is hereby terminated as of April 19, 2017, by the agreement of the parties and pursuant to Paragraph 15 of said lease. As of April 19, 2017, Sarah's will be release from all liability of the leased property with a common address of 100 North Main Street, Canton, Illinois 61520 and with a property identification numbers of 09-08-27-409-010. As of April 19, 2017, Sarah's Friendly Hardware, Inc. will relinquish all access and possession of the property and the City of Canton will cut the lock that is currently on the property. LESSEE: SARAH'S FRIENDLY HARDWARE, INC. By: Date: President STATE OF ILLINOIS, )SS. COUNTY OF FULTON ) 1, the undersigned, a Notary Public in and for said County in the State aforesaid, do hereby certify that Sarah Carter, personally known to me to be the same person(s)whose name(s) is subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that she signed, sealed, and delivered the said instrument as her free and voluntary act for the uses and purposes therein set forth. Given under my hand and notarial seal,this day of , 20_ Notary Public LESSOR: CITY OF CANTON, an Illinois Municipal Corporation BY: 4 �/ Date: n fi,,lfq ,7 Jeffre ippr Attest: 1.4 Date: V/.7(0? 1P-Cler NOTICE OF TERMINATION OF LEASE BY AGREEMENT OF PARTIES The Lease between the City of Canton ("City") and Sarah's Friendly Hardware, Inc. ("Sarah's") dated December 3, 2013, for the lease of property with a common address of 100 North Main Street, Canton, Illinois 61520 and with a property identification numbers of 09-08- 27-409-010, is hereby terminated as of April 19, 2017, by the agreement of the parties and pursuant to Paragraph 15 of said lease. As of April 19, 2017, Sarah's will be release from all liability of the leased property with a common address of 100 North Main Street, Canton, Illinois 61520 and with a property identification numbers of 09-08-27-409-010. As of April 19, 2017, Sarah's Friendly Hardware, Inc. will relinquish all access and possession of the property and the City of Canton will cut the lock that is currently on the property. LESSEE: S• ' 'S,FRIENDLY H• ROWARE, INC. r " a.1,�,L a iate: II'a l� Pr-e--1W1 ! /o / " ' Date: 17 -(7--9 Witness LESSOR: CITY OF CANTON,an Illinois Municipal Corporation / By: /et Date: of! /P420,7 Attest • c' X' . Date: ! h X17 City erk Prepared b9 and Retut r-+o Ci}y I F\orne9 Ci 7o PCan+an 1 .Mord, 54. Cantron,tt_ 615w • lillllll* llllllllllllllllllllllll911111IIIIIIIIIIUII�II� 1775892 JAMES I. NELSON COUNTY CLERK & RECORDER FULTON COUNTY, IL RECORDED ON 05/04/2017 09:06:31AM REG FEE: 60.00 PAGES: 2 ilii ilii i i 111111111111111111111111111 1775893 JAMES I. NELSON COUNTY CLERK & RECORDER FULTON COUNTY, IL RECORDED ON 05/04/2017 09:06:31AM REC FEE: 63.00 PAGES: 7 LEASE AGREEMENT between the CITY OF CANTON, ILLINOIS and BRENDA NUTTALL Dated as of May 1, 2017 LEASE AGREEMENT This LEASE AGREEMENT, dated as of May 1, 2017 (this "Lease"), is made between the CITY OF CANTON, an Illinois municipal corporation (hereinafter the "City" or "Lessor") and BRENDA NUTTALL, d/b/a BLOOMING CRAZY, Inc. (hereinafter "Nuttall" or "Lessee"). The City hereby agrees to lease to Nuttall 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. Pin: 09-08-27-409-010 Common Address: 100 North Main Street, Canton, Illinois 61520 1. USE: The Property, to be used and occupied only by Nuttall for business purposes related to the operation of a garden center only. 2. TERM: The term of this lease shall be from May 1,2017 through December 31, 2017. 3. RENTAL: Nuttall shall pay the City a monthly rental of Ten Dollars ($10.00), due on the first day of each month. Should the rental payment not be received by the City by the I0°i day of the month, a $5.00 per day late fee will be assessed. 4. ADDITIONAL PAYMENTS: Nuttall shall pay for any and all utilities used on the Property, including, but not limited to: gas, electricity, water, sewer, and garbage pick-up. Nuttall shall pay the amount of $110.70 for the legal advertising of the property. This payment shall be made by May 1, 2017. Should payment not be received by the City by May 1,2017, said Agreement shall be terminated. 5. TAXES: The City shall pay any taxes that are due for the 2017 tax year. 6. FIXTURES. Nuttall agrees not to make any alterations, additions. improvements or changes in the premises without written consent of the City. 7. ASSIGNMENT; TRANSFER: Nuttall 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 Property to any person or entity (a "Transferee") without the prior written consent of the City. 8. MAINTENANCE; REPAIR: Nuttall shall, at Nuttall's own cost and expense, maintain the Property in a clean and orderly condition, maintain landscaping as necessary or repair 1 NLa uacumenisiL.ascs 04/17/2017 the paved surfaces as necessary, keep the premises free and clear of all trash, rubbish and other nuisances, and/or make any other necessary repairs. 9. LIEN OR MORTGAGE. Nuttall will not, and will not create, assume or suffer to exist any Lien or Mortgage on the Property. 9. CITY REPRESENTATIONS, WARRANTIES AND COVENANTS: As of the date hereof; the City hereby represents and warrants to Nuttall that: a. Organization. The City is an Illinois Municipal Corporation duly organized and existing under the laws of the State of Illinois. b. Authority and Validity. 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 Property is not subject to the notice by publication requirement as the lease is not in excess of twenty (20) years. People ex rel. C auagniaux v. City of Edwardsville, 219 III.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 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. 10. RIGHTS RESERVED FOR THE CITY: The City reserves unto itself, its elected officials, employees and agents access to the premises and property at all reasonable 2 NI.It nucumnnsn cue• 0411712017 times having given Nuttall 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. 11. INSURANCE: In order to protect the City against liabilities that would not arise except for the use of the above described premises hereunder by Nuttall, its employees, officials, agents and contractors, Nuttall shall carry General Liability insurance naming the CITY OF CANTON, its elected officials, employees and agents as additional insureds 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. 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. 12. 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. 13. DEFAULTS BY LESSEE: In the event of the failure of Nuttall to pay rent as set forth herein when same becomes due and payable or should Nuttall breach any covenant herein contained, this Lease or the Nuttall's right to possession shall be terminated at the option of the Lessor. Likewise, in the event that Lessee may be adjudicated insolvent or bankrupt, of if a receiver of the property of Lessee shall be appointed, such event shall constitute an event of default hereunder and shall, at the option of the Lessor, cause termination of this lease. Prior to termination occurring to a default by Lessee as set forth in this article, Lessor shall give Lessee a notice in writing sixty (60) days prior to termination in the manner provided in Article 15 hereof, during which time Lessee may cure such default by satisfying the stated grounds for termination. 14. TERMINATION: This Agreement shall terminate and be of no value upon the earlier to occur of(i) December 31, 2017; or (ii) uncured default as defined by Article 13; or (iii) the mutual written consent of all of the parties hereto. 15. 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 NL R Documents/1 eases INN 72017 Attention: Mayor with a copy to: City of Canton 2 North Main Street Canton, Illinois 61520 Attention: City Attorney To Lessee: Brenda Nuttall 120 Middle Park Drive Canton, IL 61520 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. 16. 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 4 rvta ooctxn,cmsn.cuscs nlmrzon proceeding in any such court. Each of the parties hereby consents to service of process by mail. 17. 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. 18. 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 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. 19. INDEMNITY: Nuttall 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 Nuttall may have against said the City, growing out of or original, or arising out of any transaction, occurrence, event or incident occurring at the Property, and do hereby covenant with the said the City to indemnify and save it/him/her harmless from 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 Nuttall 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/he/she may incur from entering into this Agreement, as Nuttall uses said parking lot at its/his/her own risk. 20. 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. 5 w.a n„nn.:Rwi cores nvuizou 1 ' LESSEE LESSOR BRENDA NUTTALL CITY OF CANTON, an Illinois Municipal / pp ../�� Corporation By Atx _4 7y By: / It10,'1 )/ Brenda Nuttall, Owner Jeffrey A. f'?It , Mayor ATTE By: ._ J/ a•0 lana Pavey-ock, City Clerk (Municipal Seal) ?repalea bt1 and 1?e�urn7o: C iAt,1 fr-Prorney el-hi o P Can+o n 2 N, MRtr‘ st, Car\-For, rL (.(520 6 NIR Documents/I case/ 04/1)/201]