ENVIRONMENTAL REMEDIATION AGREEMENT
THIS ENVIRONMENTAL REMEDIATION AGREEMENT ("Agreement") dated September ,
1998, is entered into by and between XXXXXX XXXXX HOLDINGS, L.L.C., an Illinois
limited liability company (hereinafter "JFH"), and [Purchasing Entity]
("Purchasing Entity") (JFH and Purchasing Entity are hereinafter collectively
referred to as "Freed"), AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
not personally but as Trustee under Trust Agreement dated April 24, 1987 and
known as Trust Number 102332-03 ("Trustee") and EVANSTON PLAZA INVESTORS A REAL
ESTATE LIMITED PARTNERSHIP, an Illinois limited partnership ("Evanston Plaza
Investors") (Trustee and Evanston Plaza Investors are hereinafter collectively
referred to as "Indemnitees").
WHEREAS, JFH, Trustee and Evanston Plaza Investors are parties to a
certain Agreement of Sale dated December 8, 1997, as amended by that First
Amendment to Agreement of Sale dated May 28, 1998, Second Amendment to
Agreement of Sale dated July 24, 0000, Xxxxx Xxxxxxxxx to Agreement of Sale
dated August 28, 1998 and Fourth Amendment to Agreement of Sale dated September
10, 1998 (collectively referred to as the "Sale Agreement") for the real
property commonly known as Evanston Plaza, Evanston, Illinois (the "Property");
WHEREAS, certain response action is being performed at the Property
pursuant to the Illinois Site Remediation Program ("SRP"), 35 Ill. Admin. Code
Part 740, and the Tiered Approach to Corrective Action Objectives ("TACO"), 35
Ill. Admin. Code Part 742;
WHEREAS, Evanston Plaza Investors expects to seek in the future
reimbursement of all response costs incurred in connection with such response
action from responsible third parties under federal and/or state laws
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. e9601 et seq., as
amended;
WHEREAS, due to certain developments in negotiations between JFH and
Evanston Plaza Investors relating to the sale and purchase of the Property, JFH
and Indemnitees have agreed it is necessary to enter into this Agreement; and
NOW THEREFORE, in consideration of the matters set forth in the foregoing
recitals, the mutual promises and covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Environmental Reports. Evanston Plaza Investors, through its
consultants, has conducted and performed extensive tests, studies, borings and
other analysis of the Property, all as set forth in the Existing Report (as
that term is defined in the Fourth Amendment to Agreement of Sale, dated
September __, 1998). The Existing Report includes, without limitation, the
Remediation Objectives Report dated June 1998 ("RO Report") and the Remedial
Action Plan dated June 1998, as revised ___________, 1998 ("RAP").
2. Remedial Activities. In consideration of Evanston Plaza Investors'
agreements contained herein, Freed agrees to perform certain response action on
the Property (but not off the Property) for those releases of hazardous
substances in soil identified in the Site Investigation Report that exceed the
remediation objectives identified in the RO Report (such response action
hereinafter referred to as the "Remedial Activities") as follows:
x. Xxxxx agrees to perform the Remedial Activities in substantial
compliance with the RAP, as the RAP may from time to time be amended, modified
or revised with the approval of the Illinois Environmental Protection Agency
("IEPA") and in accordance with the terms contained herein;
x. Xxxxx agrees to submit to Evanston Plaza Investors for review and
approval any proposed amendment, modification or revision to the RAP
(individually or collectively, an "Amendment"), such approval not to be
unreasonably withheld based upon the following factors:
(1) The Amendment shall not violate applicable environmental law and
regulation;
(2) The Amendment shall be, when evaluated as a whole, in
substantial compliance with 35 Ill. Adm. Code Parts 740 and 742; and
(3) The Amendment shall not prevent Freed from obtaining a "No
Further Remediation Letter" for the Property, issued by the IEPA, in accordance
with 35 Ill. Adm. Code Sections 740.605 and 740.610; and
(4) The Amendment shall not alter the RAP in such a way as to cause
the Remedial Activities to not be consistent with the National Contingency
Plan, 40 C.F.R. Part 300.
Upon its receipt of a proposed Amendment, Evanston Plaza Investors shall
have twenty-one (21) days in which to approve or disapprove of an Amendment by
written notice to Freed. If Evanston Plaza Investors does not give Freed
written notice within said twenty-one (21) day period, said Amendment shall be
deemed approved by Evanston Plaza Investors.
x. Xxxxx agrees to permit representatives of Evanston Plaza Investors to
observe and monitor on-site work implementing the RAP, and Freed agrees to
consider any comments or suggestions concerning the substantial compliance of
the work with the RAP.
d. Evanston Plaza Investors must give Freed written notice within
forty-five (45) days of any breach by Freed of its obligations in this
paragraph 2 or in paragraph 3 herein. Freed shall have sixty (60) days to cure
such breach. In the event Evanston Plaza Investors does not give Freed timely
notice of an alleged breach, and Freed can establish that it was materially
prejudiced by Evanston Plaza Investors' failure to give timely notice, Evanston
Plaza Investors shall be deemed to have waived and covenanted not to xxx Xxxxx
for any such breach. Evanston Plaza Investors and Freed agree that Freed shall
be deemed to be materially prejudiced within the meaning of the previous
sentence (but without limiting the scope of materially prejudiced) in the event
that Evanston Plaza Investors fails to give Freed notice of any claim by
Evanston Plaza Investors that Freed failed to perform some or all of the
Remedial Activities in substantial compliance with RAP before Freed submits to
IEPA a remedial action completion report in accordance with 35 Ill.Admin.Code
Section 740.455.
e. As a condition antecedent to Freed's obligations under this paragraph
2 and paragraph 3 herein to perform Remedial Activities, Dominick's must have
entered into a lease agreement, acceptable to Freed in its sole discretion,
causing the construction of a grocery store on the Property and the Toys R Us
Parcel and the Fretters Parcel must have been purchased.
3. Remediation Costs. Freed shall pay for all Remedial Activities at
its sole cost and expense, including, but not limited to, all labor, materials,
expenses, equipment, machinery, reports, paperwork, consulting and shall use
its best efforts to obtain a Focused No Further Remediation ("NFR") Letter for
the Property from the Illinois Environmental Protection Agency ("IEPA"). The
Remedial Activities also include, without limitation, any monitoring
requirements of the IEPA included in the NFR Letter and any further remedial
activities necessary to remedy and correct any adverse results of the
monitoring, as determined by the IEPA.
4. Remediation Claims. Freed hereby assigns to Evanston Plaza Investors
and its successors and assigns the sole and exclusive right to seek in the
future reimbursement of any and all response costs incurred in connection with
the Remedial Activities from responsible third parties under CERCLA, or any
other federal, state or local laws for a maximum claim amount not to exceed
$3,700,000, excluding counsel and consultant costs incurred by Evanston Plaza
Investors in connection with the Remedial Activities (the "Remediation Claim"),
whether such response costs were originally incurred by Evanston Plaza
Investors or Freed. Freed hereby waives and releases any and all rights to the
Remediation Claim.
5. Permits and Approvals. Freed agrees to obtain the necessary permits,
authorizations, or approvals from IEPA and other federal, state or local
governmental agencies which have jurisdiction over the Remedial Activities
prior to the commencement of the Remedial Activities. Freed shall promptly
provide Evanston Plaza Investors with copies of all correspondence, reports,
tests and any other documents submitted to or received from the IEPA or any
other governmental agency relating to the Remedial Activities.
6. Evanston Plaza Investors Cooperation. Evanston Plaza Investors agree
that it will provide Freed with such reasonable cooperation necessary to enable
Freed to acquire the necessary permits, authorizations, or approvals from IEPA
and other governmental agencies which have jurisdiction over the Remedial
Activities. Evanston Plaza Investors will cooperate with Freed in timely
reviewing and executing such reports and documents to be submitted to and
approved by the IEPA or other governmental agencies. No documents or reports
shall be filed with or provided to the IEPA or any other third party without
the prior review of Evanston Plaza Investors or its counsel. Freed shall
provide Evanston Plaza Investors with copies of all letters, responses, reports
and other documents received from the IEPA or other third parties in connection
with the Remedial Activities promptly upon receipt of the same. Indemnitees
acknowledge and agree that Freed shall (a) control the Remedial Activities, (b)
determine the extent of the Remedial Activities, (c) communicate, negotiate and
deal with any regulatory authority asserting jurisdiction over the Property or
the Remedial Activities, without interference or direct participation by the
Indemnitees, and (d) have discretion to agree to the scope, form, substance and
conditions of the NFR to be issued by the IEPA, and to implement any such NFR
issued by IEPA.
7. Remediation Status Reports. On or before the 10th day of each month,
commencing with the second month after the date of execution of this Agreement,
Freed shall provide to Evanston Plaza Investors, for delivery to and review by
Evanston Plaza Investors and its counsel and consultants, written reports
detailing the status of the Remedial Activities for the preceding month (the
"Reporting Period"), including, without limitation (a) work completed to date
through and including the Reporting Period, (b) work intended for the month
following the Reporting Period, (c) an updated schedule for the completion of
the Remedial Activities and (d) an updated detailed accounting of costs
incurred in connection with the Remedial Activities. The written reports shall
follow the format provided in Exhibit X. Xxxxx'x obligation to provide reports
in accordance with this paragraph shall terminate upon Freed's submittal of the
Completion Report to IEPA.
8. Remedies. In the event that Freed fails to fulfill its obligations
under this Agreement, Indemnitees reserve the right to pursue any and all
remedies available under the Sale Agreement, this Agreement, at law or in
equity as a result of such violation or default. In the event that the
Indemnitees fail to fulfill its obligations under this Agreement, Freed
reserves the right to pursue any and all remedies available.
9. Indemnification. Freed shall protect, indemnify, defend and hold
harmless Indemnitees and their respective partners, stockholders, affiliates
(including, but not limited to, The Balcor Company, The Balcor Company
Holdings, Inc., National Express Company and American Express Company),
directors, officers, employees, agents (collectively referred to hereinafter as
"Indemnified Parties") from and against any and all claims, causes of action,
demands, losses, damages, costs, expenses, liability or fees (including
attorney's fees and costs) for injury to or death of any person, or from damage
to or destruction of property, and for any other similar costs, damages,
expenses, liabilities, fines, penalties or losses (individually and
collectively, the "Losses") incurred by or claimed against Indemnitees by third
parties arising out of Freed's negligent performance of the Remedial Activities
or any material breach by Freed of any covenant, representation or agreement
set forth in this Agreement.
As a condition antecedent to Freed's assignment of the Remediation Claim
in Paragraph 4 herein to Evanston Plaza Investors, its successors or assigns,
such assignment shall be valid and effective if and only if Evanston Plaza
Investors, its successors or assigns agree to indemnify, defend and hold
harmless Freed from any loss, cost, damage or expense arising out of the
assertion against responsible third parties by Evanston Plaza Investors, its
successors or assigns, of any Remediation Claim. Evanston Plaza hereby
indemnifies, defends and holds harmless Freed from any loss, cost, damage or
expense arising out of the assertion against responsible third parties by
Evanston Plaza, its successors or assigns, of any Remediation Claim.
10. Notices. Any notice or demand which either party hereto is required
or may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO EVANSTON PLAZA INVESTORS: x/x Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxx Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
(000) 000-0000 (FAX)
with copies to: x/x Xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxx Xxxxxx Xxxxx
0000 Xxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
with copies to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
TO FREED: Xxxxxx Xxxxx Holdings, L.L.C.
0000 Xxxxx Xxxx Xxxx, Xxxxxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxx
(000) 000-0000
(000) 000-0000 (FAX)
and one copy to: Xxxxx & XxXxxxxx
One Prudential Plaza
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. X'Xxxxx, Esq.
(000) 000-0000
(000) 000-0000 (FAX)
11. Miscellaneous.
a. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois without regard to conflict of
law rules.
b. Headings and titles of paragraphs and other sub-parts of this
Agreement are for convenience of reference only and shall not be considered in
interpreting the text of this Agreement. Modifications or amendments to this
Agreement must be in writing and executed by duly authorized representatives of
each party.
c. In the event that any portion or all of this Agreement is held
to be void or unenforceable, the remaining portions shall remain valid and
enforceable and the parties agree to negotiate in good faith to reach an
equitable agreement which shall effect the intent of the parties as set forth
in this Agreement.
d. The prevailing party in any litigation between the parties
hereto arising out of this Agreement shall be entitled to reasonable attorneys'
fees and costs to be paid by the non-prevailing party.
e. The provisions of this Agreement which by their nature are
intended to survive the termination, cancellation, completion or expiration of
this Agreement shall continue as valid and enforceable obligations of the
parties notwithstanding any such termination, cancellation, completion or
expiration; provided, however, that in all events Freed's obligations (except
for Freed's assignment of the Remediation Claim in paragraph 4 herein) under
this Agreement shall terminate and be of no further force or effect upon the
issuance of a NFR Letter concerning the Property by IEPA.
f. Neither party to this Agreement shall assign its duties and
obligations hereunder without the prior written consent of the other party.
12. Entire Agreement. Except as otherwise provided in the Sale
Agreement, this Agreement constitutes the entire agreement between the parties
with regard to the subject matter hereof and supersedes and cancels any prior
agreements, understandings, or representations, whether in writing or oral.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
XXXXXX XXXXX HOLDINGS, L.L.C., an Illinois
limited liability company
By:
-----------------------------
Name:
-----------------------------
Its:
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SELLER:
TRUSTEE:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, not personally, but as Trustee under
Trust Agreement dated April 24, 1987 and known as
Trust No. 102332-03
By:
---------------------------
Name:
---------------------------
Its:
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BENEFICIARY:
EVANSTON PLAZA INVESTORS A REAL ESTATE LIMITED
PARTNERSHIP, an Illinois limited partnership
By: Balcor Equity Partners-IV, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, its general partner
By:
--------------------------
Name:
--------------------------
Its:
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EXHIBIT A
EVANSTON PLAZA MONTHLY REMEDIATION STATUS REPORT
Reporting Period:
------------------------------
I. General Description of Work Completed to Date Through and Including
Report Period
II. General Description of Work Intended for the Month Following the
Reporting Period
III. Schedule for Completion of Remaining Tasks Constituting the Remedial
Activities
IV. Attach Copies of Invoices for Remedial Activities Paid During
Reporting Period
