HomeMy WebLinkAboutResolution #4046 , � .
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
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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
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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
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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
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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
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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
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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
; __.
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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)
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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)