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09-278 Resolution No. 09-278 RESOLUTION AUTHORIZING EXECUTION OF A LEA►E AGREEMENT WITH NORTHSTAR TRUST COMPANY, AS SUC 1 ESSOR TRUSTEE UNDER TRUST NUMBER 11-2204, AND CHICAGO TITLE LAND TRUST COMPANY, AS TRUSTEE UNDER TRUST NUMBI R 8002350428 FOR A PORTION OF THE PREMISES 0 I BRANDT DRIVE FOR USE AS A SALT STORAGE FACILITY BE IT RESOLVED BY THE CITY COUNCIL OF T I E CITY OF ELGIN, ILLINOIS,that Ed Schock,and Diane Robertson,City Clerk,be and are herebh respectively authorized and directed to execute a written lease agreement with Northstar Trust Co mpany, as Successor Trustee under Trust Number 11-2204, and Chicago Title Land Trust ompany, as Trustee under Trust No. 8002350428, for a portion of the premises on 1100 Bran it Drive, for use as a city salt storage facility, a copy of which is attached hereto and made a part h reof by reference. s/E s Schock Ed S hock, Mayor Presented: December 16, 2009 Adopted: December 16, 2009 Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk • EXHIBIT C 12/3/09 LEASE AGREEMENT THIS LEASE is made and entered into this of Decem•er,2009,by and between the City of Elgin, an Illinois municipal corporation(hereinafter referred o as the"Lessee"), and Northstar Trust Company, as Successor Trustee under Trust Number 11-P 204, as part owner, and Chicago Title Land Trust Company, as Trustee under Trust umber 8002 50428, as part owner(hereinafter collectively referred to as"Lessor"), and constitutes a Lease bet een the parties of the Premises as identified in the Basic Lease Provisions below,on the terms and onditions and with and subject to the covenants and agreements of the parties hereinafter set forth. WITNESSETH: 1. Basic Lease Provisions. The following are certain Lease provisions which are part of,and. in certain instances,referred to,in subsequent provisions of this Lease: Lessee's Name and Address: City of Elgin, 150 Dexter Court, Elgin,IL 60120-5555 Lessor's Name and Address: Northstar Trust Company as Succ-ssor Trustee under Trust Number 11-2204 and Chicago Title Land Trust Company as Trustee under Trust Number 8002350428, c/o Plote Properties, LLC, 1141 ast Main Street, Suite 100 East Dundee, Illinois 60118 Attention: Daniel L. Shepard Premises: Those portions of the property located on the s.uth side of Brandt Drive, Elgin, Illinois, Permanent Index No. 03-35-400-004, uch property being depicted on Exhibit A attached hereto and made a part her,.f by this reference, described as follows: A. During the first year of this Lease the po 'ion of such property located at the southern end of such property on which the temp.rary salt storage is to be located as depicted on Exhibit A attached hereto,together ith rights of ingress and egress for the Lessee to and from such Premises over the re aining portions of such property, or at Lessor's option, rights of ingress and egre s for the Lessee to and from such Premises over a portion of such property and ove Lessor's property immediately to the west allowing Lessee access to such Premise.. B. Commencing November 1,2010,through.ut the remainder of the term of this Lease the portion of such property on which the I.ermanent salt storage building is located pursuant to Section 22 hereof,together ith rights of ingress and egress for the Lessee to and from such Premises over the re aining portions of such property, or at Lessor's option, rights of ingress and egress for the Lessee to and from such Premises over a portion of such property and over essor's property immediately to the west allowing Lessee access to such Premises. The remainder of the property not constituting the Lease Premises described herein shall remain available for Lessor's use,so long as s ch use does not interfere with the Lessee's use as a salt storage facility and associat.d activities. 2. Grant. Lessor hereby leases the Premises to Lessee pursuant to the terms of this Lease. 3. Rent. Lessee agrees to pay to the Lessor the sum of$0 per mon h. It is acknowledged and agreed and understood by the Lessor and Lessee that the Lessee is provi•ing to Lessor other consideration for this Lease including allowing Lessor to extend water servic. to other property of the Lessor pursuant to an agreement between the Lessor and Lessee reg.rding same being entered into concurrently with this Lease. 4. Security Deposit. No security deposit shall be required. 5. Term. The initial term of this Lease shall be for a five(5)year •eriod commencing November 1, 2009 and ending October 31, 2014. Lessee shall have the right o renew this Lease for three (3) additional successive terms of five (5) years each. Such renew.1 options shall be deemed to be automatically exercised and this Lease extended unless the Lessee shall give written notice to the Lessor not later than the expiration of the then current term of the I ease that Lessee has elected not to exercise its option to renew the Lease. During any such exte 'ed term of this Lease, all of the terms and conditions of this Lease shall remain unmodified and i full force and effect. 6. Conduct of Business by Lessee. Use of Premises. Lessee shall use and occupy the Premises for t - use as a salt storage facility and associated activities including the storage and use of vehicles • • equipment associated with the storage and removal of road salt. Care of Premises. Lessee shall keep the Premises (including he service areas adjacent to the Premises)orderly,neat, safe, and clean. 7. Alterations; Lessee and Lessor Alterations. Lessee may make repairs and improvements to the Premises subject to all applicable code regulations and with prior written approval of Lessor. All altera'ions, decorations, additions, and improvements made by Lessee shall be deemed to have attached to the leasehold and to have become the property of Lessor upon such attachment, and upon expirati•n of this Lease, Lessee shall not remove any of such alterations, decorations, additions, and imp ovements, except trade fixtures installed by Lessee may be removed if all rents due herein are paid in full and Lessee is not otherwise in default hereunder. Prior to commencing any renovation work pproved by Lessor,Lessee shall procure certificates of insurance from all contractors and subcontra'tors showing general liability and -2- worker's compensation coverage and naming Lessor as an addi iional insured. Lessee shall in any event be responsible for repairing any damage caused to the Pre ises by virtue of any unauthorized alteration, addition, or improvement installed by or on behalf o Lessee. 8. Signs. Lessee agrees not to use any advertising media without first re eiving written approval from the Lessor. All signage shall be professionally prepared and Lessee I rther agrees to maintain any such sign,awning,canopy,decoration,lettering,advertising matter,or other thing,as may be approved,in good condition and repair at all times. 9. Maintenance of Leased Premises. Lessee shall keep and aintain the Premises in a clean, sanitary, and safe condition in accordance with the laws of the ',tate of Illinois and in accordance with all directions, rules, and regulations of the health officer, re marshal, building inspector,or other proper officials of the governmental agencies having juris•iction at the sole cost and expense of Lessee,and Lessee shall comply with all requirements of law, •rdinance,and otherwise,affecting the Premises. 10. Insurance. As additional rent for the Premises,Lessee shall procure and ma'ntain policies of insurance written in occurrence form, at its own cost and expense, insuring: A. Lessor from all claims,demands or actions for injury to o death of any person in an amount of not less than $1,000,000.00, for injury to or death o more than one person in any one occurrence and an umbrella liability policy in an amount f not less than$1,000,000.00,and for damage to property in an amount of not less than$501,000.00 made by,or on behalf of, any person or persons, firm or corporation arising from related to or connected with the Premises. Lessee shall provide Lessor with a certificate of insurance naming Lessor as an additional insured party indicating the above coverage o an annual basis. B. Lessor from all workers' compensation claims. 11. Covenant to Hold Harmless. To the fullest extent permitted by law,Lessee agrees to indemnif ,defend and hold harmless Lessor, its officials, officers, and employees, from and against any and :11 claims, suits,judgments, costs, damages or other relief arising out of or resulting from or thro gh or alleged to arise out of any reckless or negligent acts or omissions of Lessee and/or of Lesse;'s officials,officers,employees or agents in connection with the use of or the condition of the Premi.es. To the fullest extent permitted by law, Lessor agrees to indemnify, defend and hold harmless Lessee, its officials, officers, and employees from and against any and all claims, suits,judgme ts, costs, damages or other relief arising out of or resulting from or through or alleged to arise out •f any reckless or negligent acts or omissions of the Lessor and/or Lessor's officials,officers,empl•yees or agents in connection with the use of or the condition of the Premises. -3- 12. Utility Charges. Lessor shall be responsible for and promptly pay all charges for electricity used by the Lessee upon the Premises. 13. No Assignment or Subletting. Lessee agrees not to assign or in any manner transfer this Leasq or any estate or interest therein without the prior consent of Lessor, and not to sublet the Premises or any part or parts thereof or allow anyone to come in with,through,or under it without like consent.It is understood and agreed that Lessor's consent hereunder (and wherever else in this Lease required, unless specifically provided to the contrary) may be arbitrarily withheld, notwithstanding any statutory or other provisions of law to the contrary. 14. Waste and Nuisance. Lessee shall not commit or suffer to be committed any waste upon the Premises or any nuisance or other act or thing which may disturb the quiet enjoyment of surrounding properties. Lessee shall not use or permit to be used any medium that might constitute a nuisance, such as loudspeakers,sound amplifiers,phonographs,radios, televisions,or any other sound-producing device which will carry sound outside the Premises. 15. Destruction of Leased Premises. In case the Premises shall be rendered untenable by fire, explosipn or other casualty, Lessor shall repair the Premises within one hundred and eighty days. 16. Eminent Domain. If the whole of the Premises hereby leased shall be taken by any public authority under the power of eminent domain, or by deed in lieu thereof, then the term ofts Lease shall cease as of the day possession shall be taken by such public authority and the Rent d other charges due hereunder, shall be paid up to that day with a proportionate refund by Lessor f such rent as may have been paid hilin advance for a period subsequent to the date of the taking. If les than the whole of the Premises shall be taken under eminent domain,Lessee may continue in thepossession of the remainder of the Premises if such can reasonably be accomplished. If the Lessee is to remain in possession,all of the terms herein provided shall continue in effect. All damages awarded for such taking under the power of eminent domain, whether for the whole or a part of the Preriises, shall belong to and be the property of Lessor whether such damages shall be awarded as compensation for diminution in value to the leasehold or to the fee of the Premises. The Lessee may pUrsue its own claims for damages -4- with the appropriate government authority so long as same does nbt interfere with,or in any manner diminish,the award of Lessor. 17. Default. If either party violates or breaches any term of this Lease,such violation or breach shall be deemed to constitute a default, and the other party has the right to seek administrative, contractual or legal remedies as may be suitable to the violation or breach. Additionally,if either party by reason of any default, fails to within sixty (60) days after notice thereof by the other party to comply with the conditions of this Lease,the other party may terminate this Agreement. 18. Access by Lessor. Lessor or Lessor's agents shall have the right to enter the Premises at all reasonable times. 19. Miscellaneous. Waiver. One or more waivers of any covenant,term,condition,or provision of the Lease by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term, condition, or provision, and the consent or approval by Lessor to or of any act by Lessee requiring Lessor's consent or approval shall not be deemed a waiver of Lessor's consent or approval to or of any subsequent similar act by Lessee. No breach of a covenant,term,condition,or provision of this Lease shall be deemed to have been waived by a party,unless such waiver(i)is in writing signed by the other party,(ii)identifies the breach,and(iii)expressly states that it is a waiver of the identified breach. No Partnership. Nothing contained in this Lease shall be deemed or construed by the parties hereto, nor by any third party,as creating the relationship of principal and agent or of partnership or ofjoint venture between the parties hereto. Construction. Whenever herein the singular number is used,the same shall include the plural,and the masculine gender shall include the feminine and neuter genders. The captions,section numbers, article numbers,and index appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or intent f such sections or articles of this Lease nor in any way affect this Lease. Notice. Any notice, demand, request, consent, approval, or other instrument which may be or is required to be given under this Lease shall be sent by overnight courier or United States certified mail return receipt requested,postage prepaid,and shall be addressed to the addresses and persons set forth hereunder: -5- . I . . If to Lessee: If to Lessor: City Manager Daniel R. Plote, President City of Elgin Plote Construction, Inc. 150 Dexter Court P. 0. Box 957825 Elgin, Illinois 60120-5555 Hoffman Estates,Illinois 60195 With a copy to: With a copy to: Corporation Counsel Plote Properties,LIC City of Elgin 1141 East Main Street, Suite 100 150 Dexter Court East Dundee, Illinois 60118 Elgin, IL 60120-5555 Attention: Daniel L. Shepard Recording. Lessee shall not record this Lease without the consent of Lessor,which may be withheld for any reason whatsoever, in Lessor's absolute discretion. Governing Law. This agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois Partial Invalidity. If any provision of this Lease or the application thereof to any person or circumstances shall,to any extent,be invalid or unenforceable,the remainder of this Lease shall not be affected thereby and each provision of the Lease shall be valid and enforceable to the fullest extent permitted by law, and the remaining provisions of this Lease shall be interpreted so as to nearly as possible conform to the intent of the parties as indicated in this Lease. L Compliance with Laws. Lessor and Lessee shall at all times dulling the term of this Lease,perform and comply with all laws, rules, orders, ordinances, regulati9ns, requirements of law now or hereinafter enacted or promulgated, of every governmental authority or municipality having jurisdiction over the Premises, and any agency thereof, relating to the ownership, occupation, possession,operation,use,management,improvement,construction,alteration,repair,maintenance, or control of the Premises, or to the improvements or the facilites or equipment therein. No Encumbrance to Title. Lessee shall not do any act which shall in any way encumber the title of Lessor in and to the Premises or the improvements,nor shall the interest or estate of the Lessor in the Premises or the improvements be in any way subject to any c aim by way of lien, mortgage or encumbrance,whether by operation of law or by virtue of any express or implied contract by Lessee. Termination by Lessee. Notwithstanding any other provision hr•eof,the Lessee may terminate this i Lease at any time upon thirty(30)days prior written notice to t e Lessor. - Joint and Collective Work Product. This Lease is and shall be deemed and construed to be a joint and collective work product of the Lessee and the Lessor ant, as such, this Lease shall not be construed against the other party, as the otherwise purported drafter of same, by any court of -6- competent jurisdiction or to resolve any inconsistency, ambiguity1, vagueness or conflict, if any, of the terms and provisions contained herein. Binding Effect. This Lease shall be binding on the parties hereto and their respective successors and permitted assigns. This Lease and the obligations herein may not be assigned by the Lessee without the express written consent of the Lessor. Zoning Approvals. Lessor agrees to sign any necessary petitions applications and other documents which are necessary in order for Lessee to obtain any zoning approvals which are required for the Lessee to use and occupy the Premises as a salt storage facility. Entire Agreement. This Lease, and its exhibits, and the agreement regarding water service being entered into between the parties concurrently with this Lease,constitute the entire agreement of the parties on the subject matter hereof and may not be changed, Modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representation or warranties shall be binding upon the parties unless expressed in writing herein or in the agreement relating to water service being entered into concurrently with this Lease, or in a duly executed amendment. I 20. Disclaimers. I Environmental Hazards. Lessor expressly disclaims any warranty regarding the presence or absence of any environmental hazard on, upon, beneath or within the Premises to include the presence of asbestos or other material. Lessee will not keep or use or permit to be kept or used in or on the premises or any place contiguous thereto any hazardous substances or explosives. For purposes of this Lease, (a) "hazardous substances" are those substances defined as toxic or hazardous substances,pollutants,or wastes by Environmental Lavi;(b)"Environmental Law"means federal laws and laws of the jurisdiction where the Premises is located that relate to health,safety or environmental protection; (c) "Environmental Cleanup" includes any response action, remedial action,or removal action,as defined in Environmental Law;and(d)an`Environmental Condition" means a condition that can cause, contribute to, or otherwise trigger an Environmental Cleanup. Lessee shall not cause or permit the presence, use, disposal, storage, or release of any hazardous substances,or threaten to release any hazardous substances,on r in the Premises Lessee shall not do, nor allow anyone else to do, anything affecting the Premi es (a) that is in violation of any Environmental Law, (b) which creates an Environmental Co dition, or (c) which, due to the presence,use,or release of a hazardous substance,creates a condi ion that adversely affects the value of the Premises. Lessee shall promptly give Lessor written notice of(a)any inves igation,claim,demand,lawsuit or other action by any governmental or regulatory agency or privat party involving the Premises and any hazardous substance or Environmental Law of which Les ee has actual knowledge, (b) any -7- . . Environmental Condition, including but not limited to, any spilling, leaking, discharge,release or threat of release of any hazardous substance, and(c) any conditiOn caused by the presence, use or release of a hazardous substance which adversely affects the value of the Premises. 21. Taxes. Lessor shall, at Lessor's own cost and expense, bear, pay and discharge prior to delinquency,all real estate taxes,special assessments,leasehold taxes or any other taxes which are or may be levied,charged and/or assessed upon the Premises,the improvements and/or the leasehold of the Premises during the term of this Lease. Lessor shall also pa yi all interest and penalties imposed upon the late payment of any obligation under this section. 22. Improvements to the Premises. During the first year of thin Lease it is agreed and understood , that Lessee's salt storage facility on the Premises shall consist of a temporary facility generally described as follows: Construction by Lessor at its expense of a three-inch thick asphalt pad,forty five feet wide by forty five feet long. Four-foot cube blocks shall be placed by LessOr at its expense on the pad in a configuration to create an eight-foot high,forty-one feet wide,seventeen feet deep storage volume. The Lessee will provide at its expense a temporary canopy to cover the stored salt. The canopy shall be forty-five feet wide, twenty five feet deep and shall be twenty feet high at the center measured from the asphalt pad surface. Lessor shall also provide at its expense security lighting and a power drop for a four thousand gallon anti-icing chemical tank and pump and the cost of the electrical charges for the aforementioned items. Prior to November 1, 2010, Lessor agrees to construct at its expense a permanent building on the Premises for Lessee's salt storage facility which is generally described as follows: A covered building space sufficient to accommodate storage o up to 500 tons of granulated salt. The building shall have a separate keyed service man door, security lighting and an automatic overhead door. The overhead door shall be a minimum of twenty feet wide by thirty feet high. The cost of the electrical usage for same shall also be provided by Lessor at its expense. The plans and specifications for the permanent building on the Premises for Lessee's salt storage facility shall be subject to the Lessee's approval which approval hall not be unreasonably withheld. IN WITNESS WHEREOF, Lessor and Lessee have signed this Lease as of the day and year first above written. SIGNATURE PAGE FOLLOWS -8- II LESSOR: LESSEE: NORTHSTAR TRUST COMPANY CITY OF ELGIN AS SUCCESSOR TRUSTEE UNDER TRUST • 11-2204 By: c Ray Pl• Ed Schock Its: Trustee and Sole Beneficiary Mayor Attest: ��--QA City Clerk LESSOR: CHICAGO TITLE LAND TRUST COMPANY AS TRUSTE; • DER T UST 0. 8002350428 By: t_ Bev: aterials LLC, an Illinois Limi ed liability company, its sole beneficiary Ray Plote,Manager F:\Legal Dept\Real Estate\Lease-Plote Construction-Clean 12-3-09.doc -9- • . r ... ,... ,„ .. ._, „ ; 2.2../::::.,,,,,,,,,,..ii.f.:,,. . .,i .. \\ iits ,, , . , , , ___ .. ,,,, _ f., kVe`7‘fl 4.Urit*31"4"j201.131.114 vita vittidsv , \ (1)` ulol.aCt P• \ ^ . ' . .