THIS TERMINATION
AGREEMENT made and entered into this llth day of January, 2006, by
and between the CITY OF ELGIN, an Illinois municipal corporation
(hereinafter referred to as the “City”); and JOHN B.
SANFILIPPO AND SON, INC., an Illinois corporation, ARTHUR/BUSSE
LIMITED PARTNERSHIP, an Illinois limited partnership, and 300 EAST
TOUHY AVENUE LIMITED PARTNERSHIP, an Illinois limited partnership
(hereinafter collectively referred to as
“Developer”).
WHEREAS, on
May 26, 2004, the City and the Developer entered into a
Development Agreement (hereinafter referred to as the
“Subject Development Agreement”); and
WHEREAS, the
Subject Development Agreement related to property then owned by the
State of Illinois consisting of approximately 90 acres commonly
known as 750 South State Street, Elgin, Kane County, Illinois, such
property being legally described in Exhibit A attached hereto
(hereinafter referred to as the “Subject Property”);
and
WHEREAS, pursuant
to the Subject Development Agreement the City has since acquired
the Subject Property from the State of Illinois with the purchase
price being funded by the Developer; and
WHEREAS, pursuant
to the Subject Development Agreement the Developer at its cost has
provided for the Environmental Remediation of the Subject Property;
and
WHEREAS, pursuant
to the Subject Development Agreement the Developer at its cost has
provided for the Subject Asbestos Abatement and Building
Demolitions on the Subject Property; and
WHEREAS, pursuant
to the Subject Development Agreement and as provided by law the
City has adopted Ordinance Nos. S26-04, S27-04 and S28-04 providing
for the approval of the Elgin Route 20 Tax Increment Financing
Redevelopment Project and Plan, the Designation of the Elgin Route
20 Tax Increment Financing Redevelopment Project Area and the
adoption of Tax Increment Financing in connection with such
designated Route 20 Tax Increment Financing Redevelopment Project
Area (hereinafter collectively referred to as the “Route 20
Tax Increment Financing District”); and
WHEREAS, pursuant
to the Subject Development Agreement and as provided by law the
City has provided for the expansion by the State of Illinois of the
City’s Illinois Enterprise Zone known as the Elgin Enterprise
Zone to include the Subject Property and has obtained an extension
of the term of the Elgin Enterprise Zone for an additional term of
ten (10) years from the date of the request to the State of
Illinois (hereinafter referred to as the “Subject Enterprise
Zone Expansion”); and
WHEREAS, pursuant
to the Subject Development Agreement the City has as part of the
acquisition of the Subject Property from the State of Illinois
reimbursed to the State of Illinois one-half of the estimated cost
of the State of Illinois relocating its operations and employees
from Building No. 69 on the Subject Property; and
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WHEREAS, since the
entry into the Subject Development Agreement the Developer has
determined not to proceed with the Subject Redevelopment of the
Subject Property as provided for in the Subject Development
Agreement and has instead elected to proceed to acquire the
property commonly known as 1701-1715 North Randall Road, Elgin,
Illinois; and
WHEREAS, the City
and Developer have determined to enter into this Termination
Agreement providing for the termination of the Subject Development
Agreement upon the terms and conditions provided herein.
NOW, THEREFORE,
for and in consideration of Ten Dollars ($10.00) in hand paid, and
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
1.
Recitals. The foregoing recitals are incorporated into
this agreement in their entirety.
2.
Definitions. Capitalized terms shall have the
definitions as provided herein and as provided in the Subject
Development Agreement.
3.
Conveyance of Subject Property to
Developer.
A. Within
thirty (30) days of the entering into of this Termination
Agreement, the City shall convey the Subject Property to the
Developer by recordable quit claim deed, subject to all matters of
record or otherwise Including but not limited to: the same title
exceptions, encumbrances, conditions, agreements and
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easements
regarding the Subject Property as existed as of the conveyance of
the Subject Property from the State of Illinois to the City;
exceptions 2 through 11 of Schedule B of the First American
Insurance Company Owner’s Title Policy, dated October 22
2004, File No. NCS-90286-CHI1; real estate taxes; covenants,
conditions, encroachments and restrictions of record; zoning laws,
statutes and ordinances, including, but not limited to, matters
relating to the Tax Increment Allocation Redevelopment Act, the
Route 20 Tax Increment Financing District and the Elgin Enterprise
Zone; the Intergovernmental Lease Agreement to Utilize Space
between the State of Illinois, acting through its Department of
Central Management Services on behalf of the Department of Human
Services and the City of Elgin for Building 67 (also known as
Building 69) dated April 13, 2005, and May 16, 2005
(“hereinafter referred to as the “Subject Lease with
the State”); reservation of easement for the State of
Illinois as set forth in Section Nine of the Agreement for
Sale of Real Property between the State of Illinois, acting by and
through its Department of Central Management Services and the City
of Elgin dated June 18, 2004 (such agreement is hereinafter
referred to as the “Subject Agreement for the Sale of the
Subject Property with the State”); restrictions on
utilization of property and option to repurchase the property of
the State of Illinois as set forth in Section Ten of the
Subject Agreement for the Sale of the Subject Property with the
State; provisions including “as is” and “where
is” provisions in Section Eleven of the Subject
Agreement for Sale of the Subject Property
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with the State;
provisions including indemnification provisions in
Section Twelve of the Subject Agreement for Sale of the
Subject Property with the State; and the provisions of Sections 3B
— 3J of this Agreement. Unless otherwise directed by the
Developer the grantee in the deed of conveyance conveying the
Subject Property from the City to the Developer shall be John B.
Sanfilippo & Son, Inc., an Illinois corporation. At the Closing
of the conveyance of the Subject Property from the City to the
Developer the City and the Developer will enter into an Assignment
and Assumption Agreement whereby the City shall assign to the
Developer and the Developer shall accept from the City all of the
City’s rights, title and obligations in the Subject Lease
with the State. The City hereby represents that the current version
of the Subject Lease with the State is the Lease dated
April 13, 2005 and May 16, 2005, and that the City has no
knowledge of any current defaults with respect to the Subject Lease
with the State.
B. Developer
hereby acknowledges and agrees that it is acquiring the Subject
Property from the City in its “as is” and “where
is” condition, and that, as of the closing of the conveyance
of the Subject Property from the City to the Developer, the
Developer will be acquiring the Subject Property with no direct
recourse or direct rights of action against the City or the
City’s officials, officers, employees, agents, attorneys,
personal representatives, successors and/or assigns.
C. Developer
further understands and agrees that, the City shall have no
responsibility for any responsive corrective actions
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or remediation
of any Environmental Condition (as hereinafter defined) at, or upon
the Subject Property and that Developer hereby waives and releases
any claim for contribution against, and covenants not to sue the
City, or the City’s officials, officers, employees, agents,
attorneys, personal representatives, successors and assigns,
whether asserted directly or indirectly, or whether in the nature
of an action for contribution, third party proceeding or other
action or proceeding whatsoever, for all damages, including,
without limitation, punitive damages, liabilities, costs, losses,
diminutions in value, fines, penalties, demands, claims, cost
recovery actions, lawsuits, administrative proceedings, orders,
response action cost, compliance cost, investigation expenses,
consultant’s fees, attorney’s fees, paralegal fees and
litigation expenses (collectively “claims”) arising out
of or in connection with any Environmental Conditions (as
hereinafter defined on the Subject Property or its migration to any
other site or location or arising out of or in connection with any
Environmental Law (as hereinafter defined).
D. The
Developer for itself and its successors, assigns and grantees,
hereby covenants and agrees that in consideration of this agreement
neither the Developer nor its successors or assigns or its grantees
shall directly or indirectly sue the City or the City’s
officials, officers, employees, agents, attorneys, personal
representatives, successors or assigns for any Claims with respect
to, or arising out of any Environmental Condition (as hereinafter
defined) or any other condition of, or situation existing
with
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respect to the
Subject Property or any Environmental Law (as hereinafter defined).
The covenant and agreement of the Developer as set forth in the
preceding sentence shall hereinafter be called the “Covenant
Not to Sue”. The parties hereto understand and agree that
Developer’s Covenant Not to Sue the City as stated herein
does not apply to any action taken by the Developer to enforce any
contractual obligations of the City as may be specifically set
forth in this agreement.
E. “Environmental
Condition” shall mean any condition or situations existing
on, under, at or about the Subject Property, the groundwater,
subsurface water, and/or the underground soil and geologic
conditions thereunder, prior to and/or as of the date of the
execution of this agreement which (i) constitutes a violation
of any State of Illinois or federal environmental law, regulation
or ordinance and/or (ii) which does or might form the basis of
any public or private claim or cause of action for the cleanup or
remediation as a result of the release, threatened release,
migration or the existence of any contaminants, pollutants,
petroleum and petroleum byproducts, crude oil or any fraction
thereof, chemicals, asbestos, wastes or substance (including,
without limitation, regulated substances and hazardous wastes and
hazardous substances as such terms are commonly used and understood
within the framework of existing federal and Illinois environmental
laws and regulations) and/or (iii) are a release or a threat
of release of hazardous substances or hazardous waste, and/or
(iv) are described or included in any report provided by the
City to the
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Developer or in
any report generated by the investigations of the Subject
Property.
F. “Subject
Property” shall mean the property described in this
agreement, and any and all improvements thereon, and the soils,
subsoils, geologic formations and the groundwater on and under such
property.
G. “Environmental
Law” shall mean any federal or state law, statute,
regulation, rule, order, decree, judgment or direction concerning
environmental protection or health and safety including, without
limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, the Resource, Conservation
and Recovery Act, as amended, the Toxic Substances Control Act, as
amended, and the Illinois Environmental Protection Act, as
amended.
H. The
“City” shall mean the City of Elgin and the
City’s officials, officers, employees, agents, attorneys,
personal representatives, boards and commissions, successors,
assigns and grantees.
I. At the
Closing of the conveyance of t
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