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HomeMy WebLinkAboutOrd 5012 04/06/1999 ORDINANCE NO. 5012 AN ORDINANCE AUTHORIZING THE EXECUTION OF A REAL ESTATE PURCHASE CONTRACT TO ACQUIRE A PORTION OF DISTRICT NO. 1 REDEVELOPMENT PROJECT AREA IN THE VILLAGE OF MOUNT PROSPECT, ILLINOIS 14 EAST NORTHWEST HIGHWAY Passed and approved by the President and Board of Trustees the 6th day of April, 1999 Published in pamphlet form by authority of the corporate authorities of the Village of Mount Prospect, Illinois, the 7th day of April, 1999 VWL 4/1/99 ORDINANCE NO. 5012 AN ORDINANCE AUTHORIZING THE EXECUTION OF A REAL ESTATE PURCHASE CONTRACT TO ACQUIRE A PORTION OF DISTRICT NO. 1 REDEVELOPMENT PROJECT AREA IN THE VILLAGE OF MOUNT PROSPECT, ILLINOIS 14 East Northwest Highway WHEREAS, the Village of Mount Prospect is a municipality which exercises authority pursuant to Chapter 65, Act 5, Section 11-74.4-4.1 et seq. of the Illinois Municipal Code as set forth in the Illinois compiled Statutes, known as the "Tax Increment Allocation Redevelopment Act"; and WHEREAS, the President and Board of Trustees of the Village of Mount Prospect did adopt Ordinance No. 5004 entitled "An Ordinance Providing For The Purchase or Condemnation Of Land For Redevelopment Purposes In The Village Of Mount Prospect, Cook County, Illinois: 14 East Northwest Highway"; and WHEREAS, a Real Estate Purchase contract (the "Contract") has heretofore been submitted to the Village of Mount Prospect with regard to a portion of the Distdct No. 1 Redevelopment Project Area; and WHEREAS, the President and Board of Trustees of the Village of Mount Prospect have reviewed the Contract in substantially the same form and materially similar to Exhibit "A" which is attached hereto and made a part hereof, and finds that the Contract is in furtherance of the goals, objectives and purposes of the Distdct No. 1 Redevelopment Project Area; and WHEREAS, pursuant to the provisions of Chapter 65, Act 5, Section 11-74.4-4.1 (c) of the Illinois Municipal Code as set forth in the Illinois Compiled Statutes, the Village of Mount Prospect is authorized to acquire property, real or personal, within the District No. 1 Redevelopment Project Area by purchase, donation, lease or eminent domain for the purposes of implementing said redevelopment project. NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: age 2 of 3 14 E. NW Hwy SECTION ONE: That it is hereby determined that it is necessary, proper and desirable that the Village of Mount Prospect acquire title to, and possession of, the real property being the subject of the Real Estate Purchase Contract, which is to be in substantially the same form and materially similar to Exhibit "A" which is attached hereto and made a part hereof. SECTION TWO: That having determined that the said Contract is in the best interests of the Village of Mount Prospect and find that the Contract is in furtherance of the goals, objectives and purposes of the District No. 1 Redevelopment Project Area, the Village President and Village Clerk are hereby authorized to execute the Real Estate Purchase Contract. SECTION THREE: That the Village President, Board of Trustees, Village Clerk, Village Manager, Village Attorney, Special Attorneys, officers and employees are hereby empowered to perform any act necessary to implement, carry out and give effect to the terms and provisions of said Contract. SECTION FOUR: That this Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form in the manner provided by law. AYES: Corcoran, Hoefert, Lohrstorfer, Nocchi, Wilks NAYS: Cl owes ABSENT: None PASSED and APPROVED this 6th dayof April ,1999. ATTEST: VelrrCa W. Lowe Village Clerk Page 3 of 3 14 E, NW Hwy LEGAL DESCRIPTION: 14 EAST NORTHWEST HIGHWAY (FANNIE MAY CANDLES) LOTS 7, 8, AND 9 (EXCEPT THE WEST 8 ~ FEET OF LOT 9) IN BLOCK 13 IN BUSSE AND WlLLIE'S RESUBDIVISlON IN MOUNT PROSPECT OF THE WEST ~ OF SECTION 12, TOWNSHIP 41 NORTH, RANGE 11 EAST OF THE THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS Permanent Index Number: 08-12-108-010 08-12-108-011 08-12-108-012 FANNIE/63099/C0NTRACTS REAL ESTATE PURCF~%SE CONTRACT BETWEEN ARCHIBALD CANDY CORPORATION ( "Seller" ) VIT.T.AGE OF MOUNT PROSPECT ( "Purchaser" ) REAL ESTATE PURCHASE CONTRACT ARCHIBALD CANDY CORPORATION ("Seller") agrees to sell to the VILLAGE OF MOUNT PROSPECT, a municipal corporation, ("Purchaser"), and Purchaser agrees to buy from Seller, in accordance with the terms, conditions and stipulations set forth in this Real Estate Purchase Contract ("Contract"), the real property and the improvements located thereon situated in the Village of Mount Prospect, County of Cook, State of Illinois, having the common addresses of 14 East Northwest Highway, Mount Prospect, Illinois and the legal description of which is set forth on Exhibit A attached hereto and made a part hereof by reference (the "Property"). 1. Ownership of the Property: Fee simple ownership of the Property is presently held in the name of Seller and fee simple title shall be conveyed to Purchaser by Warranty Deed for the Property as provided for in this Contract. 2. Consideration for Conveyance of the Property: The consideration for conveyance of the Property (the "Consideration") to be tendered and paid to Seller by Purchaser for the Property and payment for all interests, claims and demands related to the Property shall consist of the following: A. Conveyance by Purchaser to Seller of fee simple title to the property having the common address of 201 South Main, Mount Prospect, Illinois, the legal description of which is set forth on Exhibit B attached hereto and made a part hereof by reference (the "Replacement Property"); and ~ B. Any and all costs associated with Seller's acquisition of and relocation to the Replacement Property, including but not limited to the cost of remodeling and rebuilding the Replacement Property into a Fannie May Candy Shop, moving expenses, legal fees and other costs and expenses related to Seller's relocation in the amount of $160,000.00 due at Closing. 3. Tender and Payment of Consideration: Seller shall deliver to Purchaser four (4) original counterparts of this Contract executed by Seller. Within seven (7) days after the date upon which Seller has delivered said counterparts, Purchaser shall deliver two (2) original counterparts of this Contract fully executed by Purchaser and Seller (the "Effective Date"). The Consideration shall be tendered and payable in Village of Mount Prospect funds upon the closing of this transaction (the "Closing") and the Closing shall occur on July 16, 1999 or such other date as the parties may agree. 1 4. Possession: After the Closing, Seller shall be entitled to remain in possession of the Property without payment of rent to Purchaser until the construction of the Replacement Property is completed, a certificate of occupancy has been issued and the Replacement Property is fully furnished and suitable for use as a Fannie May Candy store. Notwithstanding anything in this Contract to the contrary, Seller agrees to use good faith efforts to prosecute the construction of the Replacement Property to completion and its relocation to the Replacement Property so as to tender possession of the Property to Purchaser on or before the date which is forty-five (45) days after the later of (i) the date upon which possession of the Replacement Property is delivered to Seller or (ii) the date a building permit is issued for the construction of the Replacement Property into a Fannie May Candy Shop, or such other date as the parties may mutually agree. Seller agrees to use good.faith efforts to apply for and secure a building permit for the construction of the Replacement Property into a Fannie May Candy Shop. Possession of the Replacement Property shall be delivered to Seller on or before the Closing. Delays in performance of the work contemplated for construction of the Replacement Property into a Fannie May Candy Shop due to fire, flood, earthquake or unusual weather conditions; unavailability of materials; or because of acts of God; or for any other cause, whether similar or dissimilar to those enumerated, beyond the reasonable control and without the fault or negligence of the Seller, or due to other causes beyond Seller's control, shall be deemed to be events of Force Majeure and such delays shall be excused and the date for completion of construction shall be extended by the number of calendar days equal to the total number of calendar days, if any, that Seller is actually delayed in such completion. Provided, however, in all events Seller shall tender possession of the Property no later than the date which is ninety (90) days after the later of (i) the date upon which possession of the Replacement Property is delivered to Seller or (ii) the date a building permit is issued for such construction. In addition Seller shall be entitled to early possession~of the Replacement Property upon Purchaser's acquisition of the Replacement Property for the purpose of inspection the Replacement Property, conducting due diligence and preparing environmental reports. 5. Conveyance and Closinq: Seller shall convey to Purchaser or its nominee fee simple title to the Property by Warranty Deed or such other instrument in a form satisfactory to Purchaser, consistent with the terms of this Contract. Contemporaneous to conveyance of the Property to Purchaser, Purchaser shall convey to Seller or its nominee fee simple title to the Replacement Property by Warranty Deed. Title to the Property and the Replacement Property 2 shall be free and clear of all encumbrances subject only to public utility easements, public roads, highways and right of ways, and general real estate taxes which are a lien not yet due and payable for tax years 1998 and 1999 ("Permitted Exceptions") and such title shall vest in in the respective party upon delivery of the Warranty Deed or such other instrument at ("Closing"), and thereafter immediately be recorded. All escrow closing and recording costs and fees resulting from the transfer of the Property and the Replacement Property shall be paid by Purchaser. All State, County and Village transfer stamps, if any, shall be paid by Purchaser. This transaction may be closed with a "New York Style" Closing. Purchaser shall pay the premium for a Title Policy as herein defined for the Replacement Property, such title policy shall include extended coverage. If requested by Seller, Purchaser agrees to pay for zoning 3.1, survey, access, comprehensive 1 and separate tax parcel title endorsements. 6. Condition of Title to the Property and the Replacement Property: Any mortgage or trust deed encumbering the Property shall not be considered a permitted exception hereunder. Purchaser has and will pay for a title commitment for an owner's title insurance policy issued by Chicago Title Insurance Company evidencing title to the Property on or after the date of execution hereof, showing title to be vested in Seller and subject only to Seller's mortgage, if any and the Permitted Exceptions. If such evidence of title discloses defects other than the Permitted Exceptions and Seller's mortgage, Seller shall have until Closing to cure such defects, except Seller's, mortgage, and notify Purchaser. If Seller is unable to cure such defects, Purchaser may, at its election, terminate this Contract or may accept title to the Property as it then exists by notifying Seller and tendering performance. Seller shall also furnish Purchaser, at Closing, with an affidavit of title showing title to be vested in Seller subject only to the Permitted Exceptions. Purchaser shall deliver to Seller seven (7) days prior to Closing, a title commitment ("Title Commitment") to issue an ALTA Form B (1992) Owner's Title Insurance ("Title Policy") issued by Chicago Title Insurance Company in the amount of the fair market value of the Replacement Property, plus the improvements, showing title to the Replacement Property in the Purchaser, naming Seller as the proposed insured, with title!being subject only to the Permitted Exceptions and any other title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount (such as a mortgage)i which shall be removed at or prior to Closing (such other title exceptions being hereinafter referred to as the "Removable Exceptions"), together with copies of all recorded title exceptions affecting the 3 Replacement Property. Such Title Commitment shall include extended coverage. If requested by Seller, Purchaser agrees to pay for zoning 3.1, survey, access, comprehensive 1 and separate tax parcel title endorsements. If the Title Commitment or the Title Policy discloses exceptions to title other than Permitted Exceptions, or Removable Exceptions or if the Survey discloses defects, then Purchaser shall have until Closing to remove or cure such exceptions or defects from the Title Commitment, Title Policy or Survey. If Purchaser fails to remove or cure such exceptions or defects, Seller may terminate this Contract. Purchaser shall also furnish Seller, at Closing, with an affidavit of title showing title to be vested in Purchaser subject only to the Permitted Exceptions. 7. Taxes: Seller agrees to pay all general real estate taxes, special assessments and special taxes due or to become due for the Property up to the date of Closing. General real estate taxes for 1998 and 1999 shall be prorated as of said date on the basis of 110% of the most recent ascertainable taxes. Purchaser agrees to pay all general real estate taxes, special assessments and special taxes due or to become due for the Replacement Property up to the date of Closing. General real estate taxes for 1998 and 1999 shall be prorated as of said date on the basis of 110% of the most recent ascertainable taxes. 8. Survey: Purchaser, at its own expense, may secure a current plat of survey of the Property showing the location of all improvements and easements within the respective lot lines of the Property and Replacement Property, made and so certified by the surveyor as having been made in compliance with the Illinois Land Survey Standards. Purchaser shall pay for and deliver to Seller four (4) copies of a currently dated survey of the Replacement Property ("Survey"), prepared by a surveyor licensed by the State of Illinois, certified to Seller and Chicago Title Insurance Company as having been prepared in compliance with the "Minimum Standard Detail Requirements for ALTA/ASCM Land Title Surveys" for a "Class A Urban Survey". 9. Obliqations of Seller: Seller covenants and agrees with Purchaser that from the Effective Date until Closing or earlier termination of this Contract, Seller shall: A. iAdvise Purchaser promptly of any litigation, arbitration, or administrative hearing before any governmental agency concerning or affecting the Property which is instituted or threatened after the Effective Date. B. Not take any action or permit any action to be taken which would change the physical characteristics of the Property without Purchaser's prior written consent. C. Seller shall have good, marketable and indefeasible fee simple title to the Property. D. Seller shall provide for the operation, management and all maintenance, repairs and replacement pertaining to the Property which are necessary for the efficient maintenance and upkeep of the Property to the date of Closing. E. From and after the Effective Date, Seller shall not place any mortgage on all or part of the Property or further encumber or restrict the title to the Property without Purchaser's prior written consent. The provisions of this Section 9 shall survive Closing. F. Seller agrees to vacate the Property so as to tender to Purchaser possession of the Property on or before the date set forth in Section 4. 10. Obligations of Purchaser: Purchaser covenants and agrees with Seller that from the Effective Date until Closing or earlier termination of this Contract, Purchaser shall: A. Advise Seller promptly of any litigation, arbitration, or administrative hearing before any governmental agency concerning or affecting the Replacement Property which is instituted or threatened after the Effective Date. B. Not take any action or permit any action to be taken which would change the physical characteristics of the Replacement Property without Seller's prior written consent. C. Own the Replacement Property free and clear of all liens, encumbrances, and rights of others except for Permitted Exceptions and Removable Exceptions and will convey same to Seller. Purchaser is not currently a party to any contract, lease, agreement or commitment to sell, convey, lease, assign, transfer or otherwise dispose of any portion or portions of the Replacement Property. D. Provide for the operation, management and all maintenance, repairs and replacement pertaining to the Replacement Property which are necessary for the efficient maintenance and upkeep of the Replacement Property to the date of Closing. E. Not place any mortgage on all or part of the Replacement Property or further encumber or restrict the title to the Replacement Property without Seller's prior 5 written consent, after the Effective Date. F. Not offer the Replacement Property for sale or lease to any party other than Seller, or negotiate with any party other than Seller with respect to the Replacement Property, after the Effective Date. G. Duly authorize and execute this Purchase Contract on behalf of Purchaser and represent that this Purchase Contract constitutes a valid and binding agreement, enforceable in accordance with its terms and that all consents, releases and permissions have been obtained and all required notifications have been given, including, but not limited to, compliance with any applicable Bulk Sales Act or environmental law, related to the transactions herein contemplated. Purchaser further represents that no reporting or withholding requirements are applicable to this transaction .pursuant to any tax law or regulation. H. Deliver the following documents at or before Closing: (i) Copies of all surveys, plans, tests, studies and reports regarding the Replacement Property in Purchaser's possession or control; (ii) The Warranty Deed described in Section 1 hereof and the Title Policy described in Section 6 hereof; (iii) All affidavits, certificates and other documents requested of Purchaser by Chicago Title Insurance Company to issue the Title Policy or otherwise reasonably required of Purchaser for the Closing; (iv) A Bill of Sale; (v) All keys and other access devices; (vi) Copies of records or books relating to the operation of the Replacement Property; and (vii) Originals of plans, governmental approvals and agreements relating to ownership and operation of the Property. 11. Representations of Purchaser: Purchaser hereby warrants and represents the following: A. Seller's anticipated use of the Replacement Property as a retail Fannie May Candy Shop will not violate any law, statute, rule, code, resolution, ordinance or regulation of the Village of Mount Prospect. 6 B. To the best of Purchaser's knowledge, Seller's anticipated use of the Replacement Property as a retail Fannie May Candy Shop will not violate any other law, statute, rule, code, resolution, ordinance or regulation. 12. Replacement Property Use: Purchaser recognizes that Seller's intent is to remodel and rebuild the Replacement Property into a retail Fannie May Candy Shop and, subject to the established procedures and requirements of the Purchaser with respect to similar projects and uses, agrees to the conceptual site plan prepared by Philip West, Donald Bergstrom & Associates, Inc. dated April 15, 1999 ("Conceptual Site Plan") which is made a part hereof by reference and agrees to issue a building permit in accordance with the Conceptual Site Plan so as to include the following items: (i) the red and white awning affixed to the exterior of the building located on the Replacement Property in such size and design as Seller may require; (ii) illuminated signage bearing the name and logo of Fannie May Candy Shop with capital letters up to 48 inches in such design as Seller may require on the west and north elevations; (iii) street side pole signs in such size and design as Seller may require; (iv) site improvements to facilitate increased parking as'Seller may require; and (v) expedited building plan approvals. 13. Default: If either Seller or Purchaser shall default under the terms and provisions of this Contract and such default is not cured within seven (7) days of written notice of such default, the non-defaulting party shall be entitled to pursue all actions or remedies in law or equity including, but not limited to, an action for specific performance. In the event of a default, the parties agree that the defaulting party shall be liable for all costs, expenses and attorney's fees reasonably incurred or suffered by or claimed against the non-defaulting party. 14. Brokers: Purchaser and Seller acknowledge that no person or entity has acted as broker in respect of the transaction herein contemplated. Seller agrees that should any broker make a claim for a commission based upon the actions of Seller, Seller shall indemnify, defend and hold 7 FANN I E 2 Purchaser harmless from any such claim. Purchaser represents that it has not dealt with any broker and agrees that, should any broker make a claim for a commission based upon the actions of Purchaser, then Purchaser shall indemnify, defend and hold Seller harmless from any such claim. Notwithstanding anything contained herein to the contrary, the provisions of this Section shall survive Closing. 15. Notices: All notices and other communications hereunder shall be in writing and shall be delivered personally against receipt or shall be sent by registered mail, certified maiI, or Express Mail service, postage prepaid and return receipt requested, by telephone facsimile transmission, or by nationally utilized overnight delivery service, addressed to the parties as follows: As to Purchaser: Village of Mount Prospect Attn: Village Clerk 100 S. Emerson Street Mount Prospect, IL 60056 With a Copy to: Terrence D. McCabe, Esq. Burke and Ryan 33 N. Dearborn Suite 402 Chicago, IL 60602 As to Seller: Archibald Candy Corporation 1137 West Jackson Blvd. Chicago, IL~ 60607 Attn: Rich Peritz, Director of Real Estate With a Copy to: Mark G. Henning, Esq. Winston & Strawn 35 W. Wacker Drive Chicago, IL 60601 Any notice in accordance herewith shall be deemed received when delivery is received or refused, as the case may be. Additionally, notices may be given by telephone facsimile transmission, provided that an original copy of said transmission shall be delivered to the addressee by nationally utilized overnight delivery services on the day following such transmission. Telephone facsimiles shall be deemed delivered on the date of such transmission. 16. Survival: The representations, agreement to pay the Consideration, covenants and warranties set forth herein shall be continuing, shall survive Closing, and shall remain in full force and effect thereafter. 8 FANNIE2 17. Parties Bound: This Contract shall be binding upon and inure to the benefit of Seller and Purchaser, their respective heirs, personal representatives, successors and assigns. 18. Governinq Law: The laws of the State of Illinois shall govern the validity, construction, enforcement and interpretation of this Contract. 19. Multiple Counterparts: This Contract may be executed in a number of identical counterparts. If so executed, each of such counterparts shall, collectively, constitute one agreement, but in making proof of this Contract, it shall not be necessary to produce or account for more than one such counterpart. If requested by Purchaser, Seller agrees to execute a memorandum of this Contract in form recordable in the real property records of Cook County, Illinois. 20. Time of the Essence: The parties hereto expressly agree that time is of the essence with respect to this Contract and the Closing. 21. Entire Aqreement: This Contract embodies the entire agreement of the parties in respect of the transaction herein contemplated, superseding all prior agreements whether oral or written. Any amendments hereto shall be in writing and executed by the parties hereto. 22. Non-Business Days: If the date of Closing or the date for delivery of a notice or performance of some other obligation of Seller or Purchaser falls on a Saturday, Sunday or legal holiday in the State of Illinois, then the date for Closing or such notice or performance shall be postponed until the next business day. 23. Transaction Under Threat of Condemnation: Purchaser and Seller acknowledge that this transaction and the Consideration have been negotiated under threat of condemnation and subsequent to Purchaser's notice of its intent to acquire the Property by eminent domain or otherwise. The parties acknowledge that absent this Contract the Purchaser was authorized and would have immediately filed an eminent domain proceeding to acquire the Property. 24. Personal Property: Seller shall remove all personal property from the Property prior to tendering possession to Purchaser. Purchaser shall remove all personal property from the Replacement Property prior to tendering possession to Seller. 25. Nonliabilit¥ of Villaqe Officials and Employees: No member, official or employee of the Village of Mount 9 FANNIE2 Prospect shall be personally liable to Seller in the event of any default or breach by the Village of Mount Prospect or for any amount which may become due to Seller under the terms of this Contract. 26. Environmental: With regard to the environmental condition of the Property and the Replacement Property, Seller and Purchaser agree as follows: A. Provided Seller conveys title to the Property to Purchaser, and except for the enforcement of each party's obligations under this Contract, Purchaser and Seller hereby mutually waive, release and covenant not to sue the other party and agree not to make any claim or bring any cost recovery action or contribution action or other legal or administrative action or proceeding against the other party based on, arising out of, related to, or by virtue of any Environmental Condition on the Property. B. Within one hundred twenty (120) days of the Closing, Seller may, in its sole discretion, elect to enroll the Replacement Property in the Illinois Site Remediation Program ("SRP"). If Seller fails to make a timely election, Seller shall be deemed to have elected not to enroll the Replacement Property in the SRP. In the event that Seller elects to enroll the Replacement Property in the SRP, Purchaser covenants and agrees, at Purchaser's own cost and expense, to enroll the Replacement Property in the SRP, and thereafter to conduct such work as necessary (the "Environmental Work") to obtain a focused "No Further Remediation" ("NFR") letter from the Illinois Environmental Protection Agency ("IEPA") to address the alleged presence of petroleum and constituents thereof at the Replacement Property as noted in Purchaser's April 5, 1999 "Limited Phase II Subsurface Soil Investigation," which is attached hereto as Exhibit C and expressly incorporated herein. In performing the Environmental Work and obtaining the NFR, Purchaser may utilize Tier 1 or Tier 2 remediation objectives established in accordance with the Tiered Approach to Corrective Action Objectives, 35 Ill. Admin. Code Part 742 ("TACO"), or the Purchaser may utilize background concentration levels, or the Purchaser may exclude any of the pathways of exposure, or the Purchaser may use any combination of any of the foregoing, in satisfying the requirements of the SRP in order to obtain the NFR provided, however, that Purchaser shall utilize Tier 1 remediation objectives in the event contaminant levels on the Replacement Property are equal or below such levels. Seller covenants andiagrees that an acceptable NFR satisfying Purchaser's obligations hereunder for the Replacement Property may impose the following institutional controls and/or engineered barriers in accordance with TACO, 10 FANNIE2 35 Ill. Admin. Code Part 742, Subparts J & K: (i) a restriction upon the future use of the Replacement Property to a commercial use, (ii) restriction of the use of any groundwater at, under or about the Replacement Property, in accordance with applicable municipal ordinances, provided that such ordinances are applicable to properties in addition to the Replacement Property, (iii) requirements to implement operation and maintenance plans concerning potential exposures to utility workers and worker protection and materials management requirements during excavation, and such other plans as Seller shall reasonably approve, (iv) highway agreements pursuant to 35 Ill. Admin. Code Sec. 742.1020, and (v) parking lots or buildings as engineered barriers, subject to the prior approval of the Seller. Seller further covenants and agrees that said restrictions, obligations, requirements and other information about the environmental condition of the Replacement Property, as set forth above, may be required to be recorded or filed with the appropriate keepers of land title records and environmental information, and Seller agrees to undertake such action and execute such documents to record or file to the extent required under applicable law. Purchaser agrees that it shall not propose any other institutional controls or engineered barriers in connection with obtaining an acceptable NFR without Seller's prior review and approval, which approval Seller shall not unreasonably withhold. Purchaser shall control and perform the Environmental Work and shall be the Remedial Applicant. Purchaser further agrees as follows with respect to the Environmental Work, if any, which Purchaser conducts on the Replacement Property: 1. Purchaser shall ~eet with Seller before commencing the Environmental Work, in order to inform Seller of all on site activities Purchaser plans to undertake on the Replacement Property in connection with the Environmental Work. Except with Seller's prior consent, which consent Seller shall not unreasonably withhold,'Purchaser shall not conduct the Environmental Work in such a way as to interfere in any way whatsoever, with Seller's development, construction of improvements or operation of the Replacement Property. In particular, without limiting the foregoing, Purchaser shall take all reasonable steps to avoid conducting the Environmental Work during Seller's normal business hours. Interference with Seller's development, construction of improvements or operation of the Replacement Property shall be grounds for Seller to temporarily deny access to the Replacement Property. In the event Seller denies access to Purchaser and fails to provide reasonable alternate dates for more than forty-five (45) days, Purchaser shall have no further obligations under this Section 26. 2. Seller hereby grants Purchaser a license to 11 FANNIE2 enter upon the Replacement Property, to the extent necessary to conduct the Environmental Work, in accordance with this Section 26. Purchaser shall provide Seller with notice, by telephone or facsimile, at least five (5) days prior to Purchaser's first entry onto the Replacement Property to commence the Environmental Work. The notice shall provide a proposed schedule for the Environmental Work to be conducted, with dates, times and planned activities included (the "Schedule"). Seller may request modifications to the Schedule, and in such event the parties shall attempt to develop a mutually agreeable, modified Schedule. Purchaser shall thereafter provide Seller with at least forty-eight (48) hour notice prior to any entry onto the Replacement Property. Seller agrees that the Schedule may need to be revised during performance of the Environmental Work, provided Seller and Purchaser agree in advance to such revisions, and that the Schedule does not create any obligations for the Purchaser and does not modify this Contract. 3. Purchaser and its agents, contractors and subcontractors shall conduct all Environmental Work on the Replacement Property in a safe and workmanlike manner, in compliance with all applicable laws, ordinances, rules, orders or regulations of the United States, the State of Illinois or any subdivision thereof, amd shall obtain, at no expense to Seller, any permits required by such authorities to complete the Environmental Work. Purchaser shall exercise reasonable care to avoid injury to persons or damage to Replacement Property. 4. Purchaser agrees to provide to Seller for its review any documents Purchaser intends to submit to IEPA or any other entity, at least ten (10) business days before submittal of such documents. Purchaser shall incorporate any changes that Seller reasonably requests into such documents before Purchaser's submittal of the documents to IEPA or other entity; provided however, that Purchaser shall not be required to incorporate any changes that substantially modify the scope and cost of the Environmental Work as defined herein. Subject to Seller's prior review and approval, Seller agrees to execute such documents, agreements, certificates and submittals as is required to complete the Environmental Work. If Seller unreasonably refuses to execute such documents, agreements, certificates and submittals within 30 days of Seller's receipt of such materials, Purchaser shall have no further obligations under this Section 26. Purchaser shall promptly provide Seller with copies of all final reports generated, received or'prepared by, or on behalf of, Purchaser regarding the Environmental 12 FANNIE2 Work as well as copies of all materials it submits to IEPA or any other entity regarding the Environmental Work. 5. Purchaser agrees to comply with all applicable laws in undertaking the Environmental Work, and, without limiting the foregoing, shall assure that any cuttings or borings generated by the Environmental Work, and any samples collected during the Environmental Work, shall be stored, treated, recycled, disposed or otherwise handled in accordance with applicable law. 6. Upon IEPA's issuance of an NFR letter for the Replacement Property, and within 90 days of Purchaser's completion of the Environmental Work, Purchaser shall, at its sole cost and expense, remove from the Replacement Property, or properly abandon, all equipment or property placed by or for Purchaser upon the Replacement Property, if any, and reasonably restore the Replacement Property to the same state and condition it was in prior to any activity taken hereunder to the extent reasonable in consideration of the Environmental Work performed. C. If Seller elects to enroll the Replacement Property in the SRP as provided in Section 26. B, then from the time of Closing and until IEPA issues an NFR letter for the Replacement Property ("Indemnity Period"), Purchaser hereby agrees to indemnify and hold Seller harmless from and against any claims, causes of actions, loss, suits, proceedings, costs and expenses, including but not limited to reasonable attorneys' fees, asserted by a third party against Seller regarding any Environmental Condition on the Replacement Property. Upon issuance of the NFR letter, this indemnity by the Purchaser shall expire and be of no further force or effect, with no further action of Purchaser or Seller required. In order to fall within the scope of this indemnity, Purchaser must receive notice of the claim during the Indemnity Period, although defense and settlement of the claim continues after expiration of the Indemnity Period. If Seller does not elect to enroll the Replacement Property in the SRP within the time allowed in Section 26B, then this indemnity is not effective. D. With respect to the Property or Replacement Property, Seller and Purchaser agree to cooperate in making any claim including any claim for injunctive relief or bringing any cost recovery action or contribution action or any other legal or administrative action or proceeding against any prior owners, operators, or tenants of the Property or the Replacement Property for any Environmental Condition, or remediation or clean up thereof. 13 FANNIE2 E. Purchaser shall indemnify and hold seller, their respective heirs, personal representatives, successors and assigns, harmless from any and all claims, demands, judgments, costs, expenses (including reasonable attorneys' fees and expenses), losses, damages (personal or property), or liability for personal injury or property damage caused by the negligent acts or omissions of Purchaser during performance of the Environmental Work, provided, however, that this indemnity shall not apply to consequential or indirect damages, business interruption, lost profits, damages to business reputation, or inaccurate or defective Environmental Reports, as defined herein. Purchaser's indemnification and hold harmless obligation shall survive closing for a period of two (2) years after the Closing. F. The parties acknowledge that the Purchaser has obtained certain environmental reports regarding both the Property and the Replacement Property (the "Environmental Reports") and that Purchaser wishes to maintain the Environmental Reports as confidential. Purchaser and Seller agree not to disclose any information contained in the Environmental Reports to any third party without the written consent of the other party, except under the following circumstances: (i) disclosure to IEPA, as appropriate, in connection with the Environmental Work; (ii) disclosure to accountants, counsel and other consultants or advisors of Purchaser and Seller in connection with under this Contract, or (iii) disclosure to any regulatory or supervisory authority having jurisdiction over the Property if such disclosure is required by any law, rule, regulation or judicial process, provided that the parties have delivered prior written notice of a party's intention to disclose. The confidentiality provisions of this Section 26 shall survive the Closing for a period of two (2) years. G. "Environmental Condition" shall mean (1) a release or threat of release of hazardous substances, pollutants or contaminants, or (ii) a violation of environmental law or regulation. 27. Condition Precedent to Seller's and Purchaser's obliqations: Seller and Purchaser hereby acknowledge that the terms and provisions of this Contract and the Seller's and Purchaser's obligations under this Contract are expressly contingent upon Purchaser's acquiring fee simple title to the Replacement Property. In the event Purchaser or Seller do not acquire fee simple title to the Replacement Property, Purchaser or Seller shall have the right to terminate this Contract. 28. Termination: In the event of the occurrence of any of the conditions in this Contract that gives either Seller or Purchaser the right to terminate this Contract, 14 ANNIE2 prior to termination, Seller and Purchaser shall each be allowed a reasonable opportunity to remedy or cure the defect or impediment. In the event that either Seller or Purchaser is unable to remedy or cure the defect or impediment, the parties shall have a period of thirty (30) days to further negotiate in good faith this Contract and attempt to resolve the defect or impediment. If Purchaser elects to terminate this Contract and Purchaser determines to acquire the Property through an eminent domain proceeding, Seller shall be entitled to payment of the fair market value of the Property plus $160,000.00, the amount agreed upon by the parties for relocation costs, provided Seller relocates its Fannie May Candy Shop within the Village of Mount Prospect. 29. Siqn Relocation: The parties acknowledge that a right-of-way acquisition by the Illinois Department of Transportation ("IDOT") required the removal of the existing monument sign at the Replacement Property. The parties agree that Seller shall be entitled to, and Purchaser hereby assigns and covenants and agrees to pay over to Seller, Ten Thousand Dollars ($t0,000.00), that amount being the portion of the proceeds from the IDOT acquisition attributable to the cost to relocate the sign. In the event Seller takes title to the Replacement Property divertly from the current owner of the Replacement Property, Seller shall be entitled to all proceeds from the .IDOT acquisition and Purchaser agrees not to claim any portion thereof. IN WITNESS WHEREOF, the parties hereto have, by their duly authorized repre~e~ata~tives, executed this Contract as of this ~/~_-~'~ day of /~ ~ , 1999. PURCHASER: VILLAGE OF MOUNT PROSPECT, a~NAnicipal corporatioJ._ /~. ~~ Its President / Its: Vill~e Clerk SELLER: ARCHIBALD CANDY CORPO~ON Dated: ~% ~, [~ ~ ~ t ~ Alan~et~ik~ Its: Vice President 15 ExhibitA .Legal Description 14 East Northwest Highway LOTS 7, 8 AND 9 (EXCEPT THE WEST 8 1/2 FEET OF LOT 9) IN BLOCK !3 iN BUSSE 3~FD WILLIE'S RESUBDIVISION IN MOUNT PROSPECT OF THE WEST 1/2 OF SECT2~ 12, TO~NSHIP 41 NORTH, P3%NGE 11 EAST OF THE THIRD PRINCIPAL ~RIDIAN, IN COOK C~Y, ILLINOIS. Exhibit B LeKal Description 201 South Main Exhibit C Purchaser's April 5r 1999 "Limited Phase II Subsurface Soil Investigation' [To Be Attached]