V .
RIVER EAST LLC
CHICAGO DOCK AND CANAL TRUST
CHICAGO DOCK AND CANAL COMPANY
KERR-McGEE CHEMICAL LLC,
TO
:
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr.
JOHNSON & BELL, LTD .
33 West Monroe Street
Suite 2700
Chicago, IL 60603-5404
Michael P. Connelly
Garrett C. Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois
60606
Tele
:
(312) 251.9600
1:\2470\040\Notice of Filing 03.08.06
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO
.
)
as subrogee of
GRAND PIER CENTER LLC,
)
Complainants,
)
Respondents
.
)
Donald J. Moran
Bradley Halloran
Pedersen & Houpt
Hearing Officer
161 North Clark Street
Illinois Pollution
Suite 3100
Control Board
Chicago, IL 60601-3242
James R. Thompson
Center -Suite 11-500
Chicago, IL 60601
NOTICE OF FILING
RECEIVED
CLERK'S OFFICE
MAR 0 9 2006
STATE OF ILLINOIS
Pollution Control Board
PCB 05-157
(Enforcement)
PLEASE TAKE NOTICE that on March 9, 2006, we caused to be filed with the Illinois
Pollution Control Board in the James R. Thompson Center, Chicago, Illinois, TRONOX LLC'S
MOTION FOR SUMMARY JUDGMENT DIRECTED TOWARDS THE ILLINOIS
POLLUTION CONTROL BOARD, a copy of which is served upon you along with this notice.
Tronox LLC
By :
;0
1
One of i s
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC,
)
AMERICAN INTERNATIONAL
)
SPECIALTY LINES INSURANCE CO .
)
as subrogee of Grand Pier Center LLC,
)
Complainants/
)
Counter-Complaint Respondents,
)
PCB 2005-157
V .
)
(Enforcement)
RIVER EASTLLC,
)
CHICAGO DOCK AND CANAL TRUST,
)
CHICAGO DOCK AND CANAL COMPANY,
)
Respondents,
)
TRONOX LLC,
)
Respondent/
)
Counter-Complaint Complainant . )
TRONOX LLC'S MOTION FOR SUMMARY JUDGMENT DIRECTED TOWARDS
THE ILLINOIS POLLUTION CONTROL BOARD
Tronox, LLC, by its attorneys, Connelly Roberts & McGivney LLC and Covington
& Burling, pursuant to 35 Ill. Adm. Code 101.516 and 735 ILCS 5/2-1005, hereby moves
for Summary Judgment with respect to all claims asserted by Plaintiffs/Counterclaim
Defendants Grand Pier Center LLC ("Grand Pier") and American International Specialty
Lines Insurance Co. ("American International"), as subrogee of Grand Pier (collectively,
the "plaintiffs") .
The grounds for Tronox's motion are fully set forth in the accompanying
memorandum of law in support of Tronox LLC's Motion for Summary Judgment
.
RECEIVED
CLERK'S OFFICE
MAR 0 9 2000
STATE OF ILLINOIS
Pollution Control Board
Dated: March 9, 2006
Respectfully submitted,
Tronox, LLC
Michael P. Connelly
Garrett Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
(312) 782-0690
Peter J. Nickles
J.T. Smith II
Thomas E. Hogan
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W .
Washington, D.C. 20004-2401
(202) 662-6000
Attorneys for Tronox LLC
Subscribed and sworn to
before me March 9, 2006 .
1:\2470\040\pleadings\cos
OFFICIAL SEAL
KRISTINA L. JUDGE
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 11-6-2007
CERTIFICATE OF SERVICE
I, Lynne Pudlo, a non-attorney, being first sworn on oath, depose and state that I
served the attached TRONOX LLC'S MOTION FOR SUMMARY JUDGMENT
DIRECTED TOWARDS THE ILLINOIS POLLUTION CONTROL BOARD on
the attorneys of record by mailing true and correct copies in a properly addressed, sealed
envelope with appropriate postage affixed and depositing same in the U .S. mail located at
One North Franklin Street, Chicago, Illinois, before 5 :00 p.m. on March 9, 2006
.
Respondent/
)
Counter-Complaint Complainant .
)
MEMORANDUM OF LAWIN SUPPORT OF
TRONOX LLC'S MOTION FOR SUMMARY JUDGMENT
Tronox LLC ("Tronox"), by its attorneys, Connelly Roberts & McGivney
LLC and Covington & Burling, pursuant to 35 Ill . Adm. Code 101 .516 and 735 ILCS
5/2-1005, hereby moves the Illinois Pollution Control Board (the "Board") to enter
Summary Judgment in its favor with respect to the claims asserted by Complainants/
Counter-Complaint Respondents Grand Pier Center LLC ("Grand Pier") and American
International Specialty Lines Insurance Co . ("American International"), as subrogee of
Grand Pier (collectively, the "Complainants") and, in support, submits this Memorandum
of Law .
GRAND PIER CENTER LLC,
AMERICAN INTERNATIONAL
SPECIALTY LINES INSURANCE CO.
as subrogee of Grand Pier Center LLC,
Complainants/
Counter-Complaint Respondents,
V .
RIVER EAST LLC,
CHICAGO DOCK AND CANAL TRUST,
CHICAGODOCK AND CANAL COMPANY,
Respondents,
TRONOX LLC,
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
PCB 2005-157
(Enforcement)
RECEIVED
CLERK'S OFFICE
MAR 0 9 2006
Pollution Control Board
INTRODUCTION
On February 25, 2005, Grand Pier and American International, as
subrogee of Grand Pier, asserted claims under various provisions of the Illinois
Environmental Protection Act against Tronox
i regarding thorium deposits beneath a
private parking lot and adjacent public ways in the Streeterville area of Chicago
.2 The
Complainants are not entitled to assert these claims, however, because Grand Pier
assigned these claims to other entities on February 4, 2003 (hereinafter, the "February
2003 Assignment"). See Exhibit B, February 2003 Assignment at 1, 2, and 4. Tronox
first became aware of the February 2003 Assignment after reviewing certain storage files
of the Cook County Circuit Court during the week of February 7, 2006. Tronox
contacted Complainants on March 1, 2006, to bring the February 2003 Assignment to
their attention and to -ask them to produce any document or information that would
mitigate against the filing of this motion. Complainants have not come forward with any
such document or information as of the filing of this motion. Accordingly, summary
judgment is warranted pursuant to 35 Ill. Adm. Code 101.516 and 735 ILCS 5/2-1005
.
BACKGROUND
On February 4, 2003, Grand Pier executed an assignment of all claims it
"now has or may have in the future" against numerous parties, including "Kerr-McGee
Corporation and its predecessor Lindsay Light and Chemical Company," to EPC Group,
L.L.C, Harmony Group, L.L.C ., New ManagementL.L.C., and Reliable Contracting &
I
Tronox LLC was formerly known as Kerr-McGee Chemical LLC. A notice of
name change was filed with the Board on October 11, 2005 .
2
A copy of Complainants' complaint is attached as Exhibit A .
2
Equipment Co. (collectively referred to as the "February 2003 Assignment Assignees") .
See Exhibit B, February 2003 Assignment at 1, 2, and 4 . None of the February 2003
Assignment Assignees is a party to the current litigation
.
The February 2003 Assignment states, in relevant part, as follows
:
ASSIGNMENT OF CLAIMS
1
.
Assignment .
Assignor [Grand Pier] hereby assigns to each of the
Assignees [EPC Group, L.L.C, Harmony Group, L.L.C ., New
Management L.L.C., and Reliable Contracting & Equipment Co .]
.
.
. all
of Assignor's right, title and interest in, to and under any and all rights,
claims, choses in action, suits, settlements, awards, and judgments,
whether choate or inchoate, for any and all harm, costs, expenses, losses,
damages, penalties, lost profits, expenses and disbursements (including
without limitation, legal fees and expenses) which Assignor now has or
may have in the future against each of the parties listed in Exhibit A
hereto,3 whether at law or in equity, which includes the entire amount of
the claim that Assignor is entitled to assert
.
2
.
Binding Effect
.
The obligations and liabilities of the parties
hereunder shall be binding upon and enforceable against the Parties and
each party hereto, and their respective successors and assigns and shall
inure to the benefit of such parties and their successors and assigns
.
Exhibit B, February 2003 Assignment at 1, 2 .
On February 10, 2003, Grand Pier and the February 2003 Assignment
Assignees filed the February 2003 Assignment as "Exhibit A" to a motion seeking to
substitute the assignees in Grand Pier's stead in the litigation then-proceeding in the
Circuit Court of Cook County, Illinois County Department, Chancery Division . See
Exhibit B, Motion to Substitute and For Extension of Time at 3-4 19 . According to
Grand Pier's motion to substitute parties in that litigation, Grand Pier assigned its rights
3
Kerr-McGee Corporation and its predecessor Lindsay Light and Chemical
Company are among the listed parties. See Exhibit B, February 2003 Assignment at 4
.
3
and claims to the February 2003 Assignment Assignees because it believed Lehman
Brothers was about to take control of Grand Pier
.
See generally Exhibit B .
More than two years after Grand Pier relinquished its claims against
Tronox to the February 2003 Assignment Assignees, the Complainants filed the present
complaint against Tronox. See Exhibit A .
STANDARD OF REVIEW
Summary judgment should be granted when "the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact" and the moving "party is entitled to a judgment as a matter
of law." 735 ILCS 5/2-1005(c); 35 ILCS 101 .516(b). All evidence before a court
considering a summary judgment motion must be considered in the light most favorable
to the nonmoving party .
In re Estate of Hoover, 155 III. 2d 402, 410-11, 185 111. Dec.
866, 615 N.E. 2d 736 (1993) . Summary judgment should be granted when the moving
party's right to judgment is clear and free from doubt
. Outboard Marine Corp . v. Liberty
Mutual Ins. Co ., 154 Ill. 2d 90, 102,180 I11. Dec. 691, 607 N.E. 2d 1204 (1992) .
ARGUMENT
Following an assignment of a claim, the assignee becomes the real party in
interest and the assignor may not sue on the claim because it no longer retains an interest
on which to base an action. See Art Signs. Inc. v. Schaumburg State Bank, 162 I11.App.
3d 955, 958, 114111 . Dec. 186, 516 N.E.2d 341 (l st Dist. 1987) (affirming dismissal of
complaint because assignor/plaintiff was not the proper party to the litigation)
.
Two years before bringing the present action against Tronox, Grand Pier
assigned to four other entities its "right, title and interest in, to and under any and all
rights, claims, [and] choses in action
.
.
. for any and all harm, costs, expenses, losses,
4
damages, penalties, lost profits, expenses and disbursements" which Grand Pier "now has
or may have in the future" against "Kerr-McGee Corporation and its predecessor Lindsay
Light and Chemical Company ." Exhibit B, February 2003 Assignment at 1, 2, and 4 . By
virtue of this broad assignment of its claims, Grand Pier relinquished its rights in the
claims that the Grand Pier now assert against Tronox under the Illinois Environmental
Protection Act. See Art Signs, Inc ., 162 II1.App.3d at 658. Furthermore, because Grand
Pier relinquished its claims against Tronox to the February 2003 Assignment Assignees,
Grand Pier does not retain any rights against Tronox with respect to which American
International may proceed as subrogee . See Whitledge v. Klein, 348 II1.App.3d 1059,
1064, 284 Ill.Dec. 650, 810 N.E.2d 303 (4° Dist. 2004) (holding that a subrogee-insurer
stands in the shoes of its subrogor-insured) . American International is a complainant in
this action only by virtue of its status as alleged subrogee of Grand Pier and its rights
against Tronox are derived from and limited to those of Grand Pier. See Lid,-
Intergovernmental
Intergovemmental Risk Mgmt. v. O'Donnell, Wicklund, Pigozzi & Peterson Architects,
Inc., 295 Ill.App.3d 784, 229 Il1.Dec. 750, 692 N.E.2d 739 (I S` Dist. 1998) ; see also
American Nat'l Bank and Trust Co. of Chicago v. Weyerhaeuser Co ., 692 F.2d 455, 461
(7th Cir. 1982) ("The subrogee's rights are derived from and dependent upon the rights of
the subrogor."). Thus, neither Complainant has standing with respect to the claims
asserted against Tronox in the complaint
.
Tronox alerted Complainants of their lack of standing on March 1, 2006,
and asked them to produce any document or information that would mitigate against the
filing of this motion. Complainants failed to produce any such document or information
.
Instead, they provided a March 24, 2003 document (hereinafter, the "March 2003
5
Document"). In that document, Grand Pier purports to assign to LB Streeterville LLC, an
entity which is not a party to this litigation, some of the same claims Grand Pier earlier
had assigned to the February 2003 Assignment Assignees . See Exhibit C at 2 .
Apparently, Complainants contend that the March 2003 Document
restores Grand Pier's rights to the claims previously assigned to the February 2003
Assignment Assignees on the basis of a representation by Grand Pier in that same
document, to wit, "Assignor [Grand Pier] represents and warrants that the Prior
Assignment has been rescinded and is of no force or effect ." Exhibit C at 2. The March
2003 Document, however, does not purport to be an assignment to Grand Pier of any
claims previously assigned to the February 2003 Assignment Assignees, nor are the
February 2003 Assignment Assignees - EPC Group, L.L.C, Harmony Group, L.L.C .,
New Management L.L.C., and Reliable Contracting & Equipment Co
. - parties to the
March 2003 Document. Moreover, because the February 2003 Assignment is a contract
made for consideration,4 it is irrevocable. See, e.g ., In re Robert T. Noel Coal, Inc. et al
.
v. Erickson of Johnstown, Inc . et al ., 82 B.R. 778, 780 (Bankr. W.D. Pa. 1988) ("An
assignment made for consideration is irrevocable .") ; see also
RESTATEMENT (SECOND) OF
CONTRACTS §
332 (1981) (stating that, even in the absence of consideration, an
assignment of a claim is irrevocable if "(a) the assignment is in a writing either signed or
under seal that is delivered by the assignor ; or (b) the assignment is accompanied by
delivery of a writing of a type customarily accepted as a symbol or as
evidence of the
4
See Exhibit B, February 2003 Assignment at 2 ("[I]n consideration of the
foregoing and the mutual agreements herein contained, and other good and valuable
consideration
.
. . the receipt and sufficiency of which are hereby acknowledged
.
. . ") .
6
right assigned"). Thus, the March 2003 Document does not restore to Grand Pier any of
the rights Grand Pier assigned to the February 2003 Assignment Assignees .5
CONCLUSION
The Complainants have no interest in the claims they are asserting against
Tronox. Grand Pier completely and unconditionally assigned all of these claims to the
February 2003 Assignment Assignees . The decision of Grand Pier and American
International, as subrogee of Grand Pier, to bring this action against Tronox is not an
understandable mistake. The Complainants certainly were aware of the assignments
Grand Pier made. Complainants could not have failed to understand they were brining
these claims against Tronox improperly and causing Tronox to expend substantial sums
in defense of the claims. Tronox became aware of the February 2003 Assignment only
after it undertook its own review of certain storage files of the Cook County Circuit
Court. Tronox has given Complainants every opportunity to produce documents or
information that would mitigate against the filing of this motion. Complainants have
5
It is noteworthy that the March 2003 Document purports on its face to divest
Grand Pier of any interest in some of the claims that Complainants are asserting in their
complaint. For example, Complainants seek damages from Tronox related to the
existence of thorium beneath public ways adjacent to the Grand Pier parking lot . See
Second Amended Complaint 121 . Grand Pier purports to assign that very claim to LB
Streeterville LLC in the March 2003 Document. See Exhibit C at 2 (providing that
claims retained by Grand Pier "shall not
.
. . include any claims against Kerr-McGee
.
.
.
related to the existence of thorium
.
.
. beneath any public streets or sidewalks"). In
addition, Grand Pier purports to assign to this same Lehman Brothers entity its claims as
they relate to thorium to the extent that Grand Pier's retention of such claims would
prejudice Lehman Brothers or LB Streeterville LLC. See Exhibit C at 1
.
Setting aside the confusion created by Grand Pier's purported assignment of
claims that it previously had relinquished in the February 2003 Assignment to four
entities not party to this current litigation, the bottom line is that Complainants do not
have rights in any of the claims they are asserting against Tronox
.
7
failed to come forward with any such document or information as of the date of this
filing .
For the foregoing reasons and pursuant to 35 111 . Adm. Code 101 .516 and
735 ILCS 5/2-1005, the Illinois Pollution Control Board should grant Tronox's motion
for summary judgment
.
Dated: March 9, 2006
Respectfully submitted,
Tronox, LLC
i
0
eofits,u
.
Michael P. Connelly
Garrett Carter
Connelly Roberts & McGivney LLC
One North Franklin Street
Suite 1200
Chicago, Illinois 60606
(312) 782-0690
Peter J. Nickles
Thomas E. Hogan
COVINGTON & BURLING
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2401
(202) 662-6000
Attorneys for Tronox LLC
8
By :
PLEASE TAKE NOTICE that I have today filed with the Office of the Clerk of the
Illinois Pollution Control Board (Board) the COMPLAINT of Grand Pier Center LLC and
American International Specialty Lines Insurance .Co ., as subrogee of Grand Pier Center LLC, a
copy of which is herewith served upon you along with this notice . You may be required to
attend a hearing on a date set by the Board
.
Dated : February 25, 2005
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr.
JOHNSON & BELL, LTD
.
55 East Monroe Street, Suite 4100
Chicago, Illinois 60603.5803
Tel. (312) 372-0770
Attorneys for Grand Pier Center LLC and
American
International
Specialty Lines Insurance Co.,
As subrogee of Grand Pier Center LLC
Doc. No. 1188179
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC
)
FEB 2 5 2005
AMERICANINTERNATIONAL
)
STATE
OF ILLINOIS
SPECIALTYLINES INSURANCE
CO.
)
Pollution Control Board
as subrogee of Grand Pier Center LLC
)
Complainants
)
PCB
(Enforcement)
RIVER EAST LLC
)
CHICAGO DOCK AND CANAL TRUST
)
CHICAGO DOCK AND CANAL COMPANY
)
KERR-MCGEE CHEMICAL LLC
)
Respondents
)
NOTICE OF FILING
To :
Donald J. Moran
John T. Smith II
PEDERSEN & HOUPT
COVINGTON & BURLING
161 North Clark Street, Suite 3100
1201 Pennsylvania Avenue . N. W .
Chicago, IL 60601-3242
Washington, D.C. 20004-2401
RECEIVED
CLERK'S OFFICE
BEFORE THE ILLINOIS
POLLUTION CONTROL BOARD
GRAND PIER CENTER LLC )
AMERICAN INTERNATIONAL )
SPECIALTY LINES INSURANCE CO. )
as subrogee of Grand Pier Center LLC
)
Complainants
)
v.
)
)
RIVER EAST LLC )
CHICAGO DOCK AND CANAL TRUST )
CHICAGO DOCK AND CANAL COMPANY )
KERR-MCGEE CHEMICAL LLC
)
Respondents
)
PCB OJ
(Enforcement)
RECEIVED
CLERK'S OFFICE
FEB 2 5 2005
STATE OF ILLINOIS
Pollution Control Board
COMPLAINT
Complainants Grand Pier Center LLC and American International Specialty Lines
Insurance Co., as subrogee of Grand Pier Center LLC, by their attorneys JOHNSON & BELL, LTD
.,
for their Complaint against the Respondents River East LLC ; Chicago Dock and Canal Trust;
Chicago Dock and Canal Company, and Kerr-McGee Chemical LLC, aver as follows
:
1. This is a citizen suit brought to enforce Sections 12(a), 12(d) and 21(e) of the
Illinois Environmental Protection Act (the Act) (415 ILCS 5/1 et seq .), as amended, directing
Respondents to abate and remediate certain environmental contamination, and for cost recovery
with respect to any costs incurred by Grand Pier Center LLC (Grand Pier) and American
International Specialty Lines Insurance Co . (AISLIC), or to be incurred by Grand Pier and
AISLIC, in performing response activities at the site identified by the United States
Environmental Protection Agency (USEPA) as the RV3 North Columbus Drive Site (the RV3
Site) in Chicago, Illinois
.
For each of Complainants' claims, the Illinois Pollution Control Board has
jurisdiction and authority to declare and enter judgment of the rights and responsibilities of the
parties to this citizen suit pursuant to 35 IAC 103 .200 and Sections 5(d), 31(d) and 33(a) of the
Act .
Complainant Grand Pier Center LLC (Grand Pier) is an Illinois limited liability
company, with its principal office in Chicago, Illinois . Grand Pier was issued a policy of
insurance by American International Specialty Lines Insurance Co
.
4 .
Complainant American International Specialty Lines Insurance Co . (AISLIC) is a
corporation, with its principal office in New York, New York. AISLIC is subrogated to certain
claims that Grand Pier has against Respondents for damages Respondents caused to Grand Pier
.
5
.
Respondent River East LLC, formerly known as CityFront Center LLC, is a
Delaware limited liability company authorized to do business in Illinois, with its principal office
in Chicago, Illinois. River East LLC is sued as successor of and successor in interest to
Respondents Chicago Dock and Canal Trust, and Chicago Dock and Canal Company
.
6 .
Respondent Chicago Dock and Canal Trust, an Illinois business trust, is sued as
the successor of and successor in interest to Chicago Dock and Canal Company . Chicago Dock
and Canal Trust has also been known as CityFront Acquisition Trust, an Illinois business trust
.
7
.
Respondent Chicago Dock and Canal Company was a corporation organized and
existing under and by virtue of a special act of the legislature of the State of Illinois and
authorized to do business in Illinois
.
2
8
.
Respondent Kerr-McGee Chemical LLC, a Delaware limited liability company
authorized to do business in Illinois, is an affiliate of Kerr-McGee Chemical Corporation,
uccessor of and successor in interest to Lindsay Light and Chemical Company and Lindsay Light
Company .
The RV3 North Columbus Drive Site
9 .
Through a series of administrative orders and amendments, the USEPA has
identified land generally located at 316 East Illinois Street, Chicago, Cook County, Illinois as the
Lindsay Light II Site. Lindsay Light II is situated in an urban area known as Streeterville, and is
surrounded by commercial and residential buildings
.
The Chicago River is located
approximately
%a
mile south, and Lake Michigan is about
V2
mile east of the Lindsay Light II
Site .
10.
RV3 North Columbus Drive Site (the RV3 Site), the parcel of land pertinent to
this citizen suit, is identified by the USEPA in an amendment to its administrative orders issued
for the Lindsay Light II Site. The RV3 Site is generally located at 200 East Illinois Street in
Chicago, Cook County, Illinois, and is bounded by North Columbus Drive, East Grand Avenue,
North St. Clair Street, and East Illinois Street .
11
.
The RV3 North Columbus Drive Site is a "site" as that term is defined in Section
3.460 of the Act (415 ILCS 5/3 .460) .
Contamination of the RV3 Site
12. From at least 1915 to 1933, the Lindsay Light Company was headquartered at 161
East Grand Avenue, and manufactured incandescent gaslight mantles at 161 East Grand Avenue
and / or at 316 East Illinois Street, at and adjacent to the Lindsay Light II and the RV3 Sites
.
3
13 .
The principal ingredient in gaslight mantle manufacture is thorium. Thorium
occurs principally as the parent radionuclide thorium-232 in association with its daughter
products in a decay sequence known as the Thorium Decay Series. It is believed that the
principal source of contamination at the RV3 Site is the Thorium Decay Series
.
14
.
Between at least 1915 and 1933, Lindsay Light Company operated its
incandescent gaslight mantle manufacturing business at the Lindsay Light II Site, and arranged
for the disposal of hazardous substances at the Lindsay Light II Site, including the RV3 North
Columbus Drive parcel, the parcel pertinent to this citizen suit .
15. Chicago Dock and Canal Company owned the RV3 North Columbus Drive parcel
of the Lindsay Light II Site at the time hazardous substances were disposed at the RV3 Site by
Lindsay Light Company
.
Remediation of the RV3 Site
16
.
Through
a
series of administrative orders, the USEPA ordered Chicago Dock and
Canal Trust and Kerr-McGee Chemical LLC to remove the hazardous substances contamination
at the Lindsay Light II Site, and in an amendment, ordered River East LLC, Kerr-McGee
Chemical LLC and Grand Pier Center LLC to remove the hazardous substances contamination at
the RV3 North Columbus Drive Site .
17 .
The remediation work performed at the RV3 Site was conducted under the
Unilateral Administrative Order Docket Number V-W-96-C-353 issued June 6, 1996 (UAO) and
the First Amendment to that Order dated March 29, 2000 . The work was conducted in
accordance with the Work Plan for Site Radiation Survey and Excavation Soil Management
dated March 20, 2000 and approved by the USEPA on March 23, 2000 .
4
18
.
Thereafter, the USEPA required additional work, which was conducted in
accordance with the Sidewalk Remediation Work Plan dated March 9, 2001 and approved by
USEPA on April 11, 2001
.
19 .
The First Amendment to the UAO required Grand Pier, River East LLC, and
Kerr-McGee Chemical LLC to perform certain removal actions including, but not limited to, the
implementation of a Site Health and Safety Plan, the implementation of an air monitoring
program, the removal of contamination, and the disposal of hazardous substances .
20 .
Grand Pier Center LLC, as the then current owner of the RV3 Site, and AISLIC,
as subrogee of Grand Pier, performed and completed work at the RV3 Site in accordance with
the UAO, the UAO's First Amendment, and the Work Plans
.
21 . The removal activities under the Work Plan began on April 4, 2000, and Grand
Pier Center LLC has been in compliance with the UAO since the UAO was issued to Grand Pier
Center LLC for the RV3 Site
.
22
.
A final Closure Report for the area bounded by North Columbus Drive, East
Grand Avenue, North St. Clair Street, and East Illinois Street was prepared by the Project
Coordinator, STS Consultants, Ltd., and submitted to the USEPA on July 2, 2001 . Thereafter,
the Final Closure Report Addendum dated August 31, 2004 was submitted to USEPA
.
23
.
USEPA issued Letters of Completion on August 26, 2002 and on October 8, 2004
for the work performed according to the approved Work Plans
.
24 .
Grand Pier and AISLIC incurred necessary response costs of approximately
$2,300,000 at the RV3 Site, and continue to incur additional costs of response.
25 .
Respondents are liable "persons" as that term is defined by Section 3 .315 of the
Act (415 ILCS 5/3 .315) for all costs of response at the RV3 Site
.
5
Count I -Waste Disposal
26
.
Complainants incorporate by reference as if fully restated herein, paragraphs 1
through 25, above .
27
.
Respondent Kerr-McGee is a "generator" as that term is defined by Section 3 .205
of the Act (415 ILCS 5/3.205) .
28. Chicago Dock and Canal Company owned the parcel of land comprising the RV3
North Columbus Drive Site at the time that Lindsay Light Company disposed of "hazardous
substances," as that term is defined in Section 3 .215 of the Act (415 ILCS 5/3 .215), at the RV3
Site, including but not limited to thorium
.
29 .
Releases of hazardous substances at the RV3 Site have resulted in radioactive
thorium contamination requiring Grand Pier and AISLIC to incur necessary response costs to
remove the contamination and remediate the RV3 Site, totaling approximately $2,300,000 to
date .
30 .
Grand Pier was an innocent purchaser of the RV3 Site . Grand Pier is a wholly
innocent owner which had no involvement with the improper treatment, storage, disposal or
discharge of thorium contamination at the RV3 Site .
31
.
The Act prohibits the disposal, treatment, storage or abandonment of any waste in
Illinois, except at a site or facility which meets the requirements of the Act and of regulations
and standards thereunder. 415 ILCS 5/21(e) .
6
32. Respondents violated the Act when they improperly disposed, treated, stored and
abandoned solid and hazardous wastes at the Site, a facility which does not meet the
requirements of the Act and regulations and standards thereunder for such disposal, treatment,
storage and abandonment of waste .
33
.
As a result of Respondents' violation of the Act, the Site was contaminated,
resulting in Complainants' incurrence of costs in the investigation, removal, and reporting
activities at the Site.
34 .
Respondents are liable under the Act for Complainants' costs incurred in the
investigation, removal, and reporting to USEPA of contaminants Respondents failed to remove
from the Site
.
Count II - Contaminant Threat to Groundwater
35 .
Complainants incorporate by reference as if fully restated herein, paragraphs 1
through 34, above .
36 .
The Act prohibits any person from causing, threatening, or allowing the discharge
.
of any contaminant so as to cause or tend to cause water pollution, either alone or in combination
with matter from other sources . 415 ILCS 5/12(a)
.
37 .
Respondents violated the Act when they improperly handled, treated, stored and
disposed of solid and hazardous wastes, thereby causing, threatening, and allowing the discharge
of contaminants, so
as to cause and tend to cause water pollution at the Site, either alone or in
combination with matter from other sources
.
38
.
As a result of Respondents' violation of the Act, the Site was contaminated,
resulting in Complainants' incurrence of costs in the investigation, removal, and reporting
activities at the Site
.
39 .
Respondents are liable under the Act for Complainants' costs incurred in the
investigation, removal, and reporting to USEPA of contaminants Respondents failed to remove
from the Site
.
Count III-Contaminants Upon Land
40
.
Complainants incorporate by reference as if fully restated herein, paragraphs 1
through 39, above
.
41
.
The Act prohibits any person from depositing any contaminants upon the land in
such place and manner so as to create a water pollution hazard . 415 ILCS 5/12(d) .
42
.
Respondents violated the Act when they improperly handled, treated, stored and
disposed of solid and hazardous wastes, thereby depositing contaminants upon the land at the
Site in such place and manner so as to create a water pollution hazard
.
43
.
As a result of Respondents' violation of the Act, the Site was contaminated,
resulting in Complainants' incurrence of costs in the investigation, removal, and reporting
activities at the Site
.
44 .
Respondents are liable under the Act for Complainants' costs incurred in the
investigation, removal,' and reporting to USEPA of contaminants Respondent failed to remove
from the Site
.
PRAYER FOR RELIEF
WHEREFORE, Complainants demand judgment in their favor and against the
Respondents, and each of them
:
A. declaring each Respondent jointly and severally liable and awarding to Complainants
all past costs of response incurred by Complainants, with interest as provided by law
;
8
B
.
declaring each Respondent jointly and severally liable and awarding to Complainants
all future costs of response, if any, to be incurred by Complainants, with interest as provided by
law ;
C
.
mandating and ordering Respondents to abate and remediate contamination should
additional remediation be required by administrative order or judicial decree
;
D. awarding to Complainants their costs of litigation, including reasonable attorney and
expert witness fees ; and
E .
ordering such other relief as is appropriate and just
.
Respectfully submitted this
day of February 2005
GRAND PIER CENTER LLC
AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE CO
.
Frederick S. Mueller
Daniel C. Murray
Garrett L. Boehm, Jr .
JOHNSON & BELL, LTD.
Suite 4100
55 East Monroe Street
Chicago, Illinois 60603-5803
Tel. (312) 372-0770
1181048
9
CERTIFICATE OF SERVICE
I, the undersigned, on oath, state that I have served on the date of February 25, 2005, the
attached formal complaint and notice by Certified mail, upon the following persons
:
Donald J. Moran
PEDERSEN & HOUPT
161 North Clark Street, Suite 3100
Chicago, Illinois 60601-3242
Attorney for River East LLC and
Chicago Dock and Canal Trust
John T. Smith II
COVINGTON & BURLING
1201 Pennsylvania Avenue N.W
.
Washington, D.C. 20004-2401
Attorney for Kerr-McGee Chemical LLC
G
r .
JO
6N
BELL, LTD .
55 East Monroe Street, Suite 4100
Chicago, IL 60603
(312) 372-0770
Subscribed to and sworn before me
This 25"'
day ofFebruary, 2005
.
„
OFFICIAL SEAL
F1
^
CYNTHIA LEA rEMPEL
at
n
.1L1 , .
,1
NOTARY PUBLIC STATE OF ILLINOIS
Not
Public
M Commission li' prer 1012012005
My commission expires
:
04 .
r?tQ ~fA)
c~
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION
_.viEC CONSTRUCTION MANAGEMENT, INC
.,
Plaintiff-Counterdefendant,
vs .
GRAND PIER CENTER, L.L.C., et al .,
Defendants-Counterplaintiffs .
No. 01 CH 11407
Consolidated with
No. 01 CH 10930
i^J
C
Judge Robert J. Quinn
MOTION
To
SUBSTITUTE AND FOR EXTENSIONS OF TIME
Defendant-Counterplaintiff Grand Pier Center, L .L.C. ("Grand Pier"), Defendant EPC
Group, L.L.C
.
("EPC")
and Intervenors Harmony Group, L.L.C. ("Harmony"), New
Management, L.L.C. ("New Management") and Reliable Contracting & Equipment Co
.
("Reliable") (collectively, "Movants"), by their attorneys, Novack and Macey, respectfully move
this Court for the entry of an order
:
(a) substituting EPC, Harmony, New Management and
Reliable (collectively, the "LLC Members") for Grand Pier Center, L .L.C. ("Grand Pier") as the
proper parties to pursue the various counterclaims asserted, or which could be asserted, by Grand
Pier in the instant action; and (b) granting Grand Pier extensions of time to file the pleadings
described in paragraph 15 below until a ruling is made by this Court as to the proper parties to
pursue the counterclaims and/or a decision is issued by the Appellate Court regarding the appeal
that has been filed. In support hereof, Movants state as follows :
0
w
t
Background
On January 15, 2003, Movants received notice from Lehman Brothers Holdings
Inc. ("Lehman") of its intent to conduct on February 5, 2003 at 10:00 a.m. the non-judicial sale
(the "Sale") of 100% of the LLC Members' membership interests in Grand Pier
.
2 .
After receiving that notice, Movants moved as promptly as possible . In particular,
on January 16, 2003, Grand Pier filed an Emergency Motion to Enjoin the Proposed Non-
Judicial Sale (the "Injunction Motion") .
At the same time, the LLC Members petitioned to
intervene and join in the Injunction Motion (the "Intervention Petition")
. The Injunction Motion
and Intervention Petition were presented to the Court that same day
.
3 .
The Court set a very short briefing schedule and a hearing date of January 28,
2003 at 3:00 p.m. At the January 28 hearing, the Court granted the Intervention Petition and
announced that it would issue its ruling on the Injunction Motion on February 3,
2003 at
12:00 p.m .
4 .
On February 3, 2003, the Court issued an opinion denying the Injunction Motion
(the "Opinion"). At that time, Movants requested that the Court stay the effect of the Opinion
and the Sale until the Appellate Court had an opportunity to consider the appeal in this matter
(the "Motion to Stay"). The Court granted in part and denied in part the Motion to Stay
:
it
allowed the Sale to proceed on February 5 at 10 :00 a.m ., but stayed any transferr
of
property or
closing
of
the Sale for 21 days, or until February 24, 2003
.
The Assignment
5
.
In the Opinion, the Court stated that, if the LLC Members lose their shares in
Grand Pier as a result of LaSalle's failure to fund the project, "they would certainly have a legal
claim against LaSalle for their loss ." (Opinion at 8.) Indeed, it was based on this assumption
that this Court found that Movants failed to establish that they had no adequate remedy at law
and that they would suffer irreparable harm
.
6 .
No sooner was the Court's ink dry on the Opinion, than LaSalle's counsel advised
Movants' counsel that LaSalle's position was that the Court's statement was wrong, that any
claims belonged only to Grand Pier, that those claims will be taken over by Lehman after the
Sale and that they would be dropped . Lehman has similarly taken the position that the claims
belong to Grand Pier, which Lehman would take over if the Sale goes through
.
7
.
Based on, among other things, LaSalle's and Lehman's stated positions, and the
uncertainty as to whether the Court's expectation and belief regarding the LLC Members' claims
would actually prove true, there was a very real possibility that the substantial and valid claims
against LaSalle would never again see the light of day. The same is true for the claims against
AMEC and others and the anticipated claims against Lehman .
8 .
If so, Movants would suffer a substantial injustice (unintended by this Court) that
would leave them with no remedy for the wrongs they claim were perpetrated against them and
-- at least as to LaSalle -- as to which this Court has already held there are genuine issues of fact
.
9 .
Movants were presented with no real choice . Not knowing what the Appellate
Court would do -- or what would happen to this Court's assumption as to the LLC Members'
-3 -
right to assert claims -- on February 4, 2003, Movants executed an assignment from Grand Pier
to the LLC Members of all of Grand Pier's claims against LaSalle, Lehman, AMEC and others
(the "Assignment"). A copy of the Assignment is attached hereto as Exhibit A
.
10 .
This Assignment was designed : (a) to avoid the complete injustice that would
occur if the very lenders who caused the damage got control of the claims against themselves,
and (b) to make sure that the Court's stated assumption and expectation would come true
.
The Sale And Appeal
11
.
The Sale took place as scheduled
.
As expected
-- and despite Lehman's
protestations that it would not necessarily be the purchaser -- Lehman was the only bidder at the
sale, credit bid its $22.5 million debt and purchased the LLC Members' interests in Grand Pier
.
If the Appellate Court does not grant Movants relief : (a) the LLC Members will lose forever
their ownership of Grand Pier; (b) Grand Pier will lose its independent ownership and control
of the Property; (c) Grand Pier will become owned and controlled by its adversary, Lehman ; and
(d) Lehman will direct Grand Pier in the litigation, including dropping its very valid
counterclaims .
12. Accordingly, on February 5, 2003, Movants appealed as of right pursuant to
Illinois Supreme Court Rule 307(d). The earliest that Movants could possibly receive a decision
on their Appeal is February 13, 2003
.
Motion For Substitution
13
.
By reason of the Assignment, pursuant to 735 ILCS 5/2-1008(a), the LLC
Members now move to substitute themselves for Grand Pier as the proper parties to assert the
various counterclaims instituted, or to be instituted, by Grand Pier in the instant action
.
Motion ForExtensions Of Time
14 .
Because the closing of the Sale is stayed until at least February 24, 2003 and the
Appeal of the Denial Order is pending, it remains uncertain who will be the owner of Grand Pier
.
15
.
Grand Pier has several pleadings to which it must respond over the next few
weeks: (a) Grand Pier's Reply to LaSalle's Affirmative Defenses to its Counterclaim is due on
February 10, 2003; (b) Grand Pier's Answer or responsive pleading to Otis Elevator's Co .'s
Complaint is due on February 18, 2003 ; (c) Grand Pier's Reply in Support of Its Motion for
Summary Judgment against LaSalle is due on February.20, 2003 ; and (d) Grand Pier's answer
or responsive pleading to LaSalle's Second Amended Complaint is due on March 20, 2003
.
16
.
Moreover, Grand Pier's current counsel of record have been expending a
substantial amount of time since receiving the January 15, 2003 notice of the Proposed Non-
Judicial Sale on the Intervention Petition, the Injunction Motion and the Appeal . As a result,
among other things, Grand Pier has lost almost three of the four weeks that were originally
scheduled for its Reply in Support of Its Motion for Summary Judgment against LaSalle.
17 .
Accordingly, Movants respectfully request that the Court : (a) hold all of the above
pleadings in abeyance until the issues of Grand Pier's ownership and the proper parties to pursue
-5-
its defenses and counterclaims are determined; and (b) grant extensions of time for each
equivalent to the time period covered by the abeyance
.
WHEREFORE, Movants respectfully request that the Motion to Substitute and the
Motion for Extensions of Time be granted in their entirety and that the Court grant Movants such
other and further relief as is appropriate
.
Respectfully submitted,
GRAND PIER CENTER, L.L.C .
EPC GROUP,L.L.C .,
HARMONY GROUP,L.L.C., NEW
MANAGEMENT,L.L.C., and RELIABLE
CONTRACTING & EQUIPMENT CO .
By :
`
.
Um"
One Of Their Attorneys
Stephen Novack
P. Andrew Fleming
Venus S. McGhee
Daniel R. Halperin
NOVACK and MACEY
303 West Madison Street
Suite 1500
Chicago, Illinois 60606
(312) 419-6900
Firm ID 91731
ASSIGNMENTOFCLAIMS
This Assignment of Claim C'Assignrnent') is made and entered into as of this 4"' day of February,
2003 by and among Grand Pier Center, L.L.C ., an Illinois limited liability company ("Assign?), on the
one band, and EPC Group, L.L.C., an Illinois limited liability company and the managing member of
Assignor, Harmony Group, L.LC., an Illinois limited liability company and member of Assignor, New
Management, LL.C, an Illinois limited liability company and member of Assignor, Reliable Contracting
& Equipment Co., an Illinois corporation and member of Assignor (collectively, the "Assignees"), on the
other. (Assignor and Assignees are sometimes collectively referred to herein as the 'Parties .")
WHEREAS, Assignor is the owner of that certain real estate located at the southwest comets
of
Grand Avenue and Columbus Drive, Chicago, Illinois (the "Property")
and has been coast acting,
developing and leasing a mixed-use retail and parking garage development on the Property (the "Project");
WHEREAS, Assignor is a party to actions arising out of the Project and pending in the
Circuit
Court of Cook County, Illinois, styled LaSalleBankNational Association v. Grand Pier Center.L.J,.C.,
et al . . Case No. 01 CH 10930 and AMFC Construction Management Inc . et al, v. Grand Pier Center .
J,.L,C.et al., Case No. 01 CH 11407, which actions have been consolidated (the "Lawsuit")
;
WHEREAS, Assignor is the owner of certain claims related to the Property, the Project and/or
the Lawsuit (the "Claims') that have been asserted or may be asserted in the Lawsuit against one
or more
of the parties listed on Exhibit A hereto.
The Claims include claims that have been asserted or may be
asserted against: (a) Ls Salle Bank National Association ('LaSalle) and Lehman Brothers Holdings, Inc .
(2.ehmvO (collectively, the "Lender Claims"); (b) AMEC Construction Management, Inc. ("AMEC")
and various of its subcontractors (collectively, the "Lien claims'); and (c) the remaining parties listed on
Exhibit A hereto (the "Other Claims");
WHEREAS, Assignees have to date been directing and, in great part, financing the prosecution
of the Claims;
WHEREAS, LaSalle and Lehman have consistently taken the position in due Lawsuit that the
Lender Claims have no merit;
WHEREAS, on January 14, 2003, Lehman sent a Notification of Disposition of Collateral to
Assignor and Assignees of its intention to conduct a norr-judicial sale of the membership interests in
Assignor (the "Sale") on February 5, 2003 at 10:00 am. ;
WHEREAS, Assignor maintains a good faith belief that, if the membership interests in Assignor
are sold at the Sale, the Lender Claims will not be appropriately pursued on behalf of Assignor
and,
accordingly, good and legitimate claims may be forever lost and wrongdoers may be allowed to avoid
responsibility and liability for their actions;
WHEREAS, the Court's Opinion dated February 3, 2003 states that, in the event that the Sale
occurs, Assign= would "certainly have a
legal claim against LaSalle for their loss";
WHEREAS, LaSalle disputes the Court's finding in that regard and takes the position that :
(a) Assignees would have no standing to make any of the Claims; and (b) all pending claims against LaSalle
will terminate upon the Sale ;
WHEREAS, the Parties desire to ensure that the Claims will be prosecuted if the Sale occurs and
that the Court's above-described finding will not be frustrated ;
WHEREAS, Assignor maintains a good faithbelief that, if the membership interests in Assignor
are sold at the Sale, the Claims will not be vigorously pursued and, accordingly, the Claims would be more
valuable to Assignees than to Assignor,
WHEREAS, Assignor desires to assign the Claims to Assignees in order to, among other things,
assure that the Claims are in the hands of parties who will vigorously pursue them;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein
contained, and other good and valuable consideration, including, but not limited to, Assignees' role in the
prosecution of the Claims to datr, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto hereby agree as follows
:
1 .
AAsd
rm ett . Assignor hereby assigns to each of the Assignees, and each of the Assignees
hereby accepts such assignment, on a pro rata basis in accordance with their respective percentage of
ownership in the Assignor, all of
Assignor's right, title and interest in,
to and under any and all rights,
claims, choses in action, suits, settlements, awards, and judgments, whether choate or inchoate, for any and
all harm, costs, expenses, losses, damages, penalties, lost profits, expenses and disbursements (including
without limitation, legal fees and expenses) which Assignor now has or may have in the future against each
of the parties listed in Exhibit A hereto, whether at law or in equity, which inchxles the entire amount ofthe
claim that Assignor is entitled to assert
2 .
BiDdIME501 The obligations and liabilities of the parties hereunder shall be binding upon
and enforceable against the Parties and each party hereto, and their respectrve successors and assigns and
shall inure to the benefit of such parties and their successors and assigns .
2
above.
IN WITNESS WIM7REOF, the Parties have executed this Assignment as of the date set forth
GRAND
PIER CENTER,
L.L.C. "Assignor"
By
.
EPC GROUP, L.L.C.
Managing Member
ByRaYrno
~f~~~~'"~"'"
nd M. Chin
Manager
EPC GROUP,
L.L.C.
"Assignee"
BY
,
Its:
cr
HARMONY GROUP, L.L.C. "Assignee"
3
NEW MANAGEMENT, LLLC. "Assignee"
By,
~Lk
Its:
RELIABLE CONTRACTING & EQUIPMENT CO.
"Assignee'
EXHIBIT A
AIG Insurance Co .
American International Specialty Lines Insurance Co .
AMEC Construction Management, Inc.
ATC Associates, Inc .
ATC Group Services
Inc .
BCM Engineers Inc .
CECO Concrete Construction
Compass Management & I casing Inc.
Concrete Structures of the Midwest, Inc
.
Environmental Systems Design, Inc
Equitable Life Assurance Society of the United
Sinh's, and predecessors in title
ERE Yarmouth
Fujikawa Johnson & Associates, Inc
. ;
Great Lakes Plumbing & Heating Co .
Harmon Limited
Kerr-McGee Corporation and its predecessor Linsday Light and Chemical Company
12S 1le Bank National Association
Lehman Brothers Holdings, Inc.
Loebl, Schlossman & Hack!
Maron Electric Co.
Near North Insurance Brokerage, Inc .
North River Insurance Co.
Otis Elevator Co.
Revcon Construction
Roy Strom Excavating & Grading Co .
Smith Environmental Technologies Corporation
Smith Technology Corporation
ThomtonTomasetti Group, Inc .
U.S. Fire Ins. Co .
United States of America, and its Officers, Departments, and Agencies
4
CERTIFICATE OF SERVICE
P. Andrew Fleming, an attorney, hereby certifies that he served the foregoing Motion to
Substitute and For Extensions of Time, by causing a true and correct copy thereof to be sent by
messenger delivery (unless indicated otherwise) to
:
Peter F. Herzog
Peter J. Bedard
Helen M. Burke
Michael Best & Friedrich LLC
401 North Michigan Avenue, Suite 1900
Chicago, Illinois 60611
(Attorneys
for
AMEC
Construction
Management, Inc.)
Eric S. Rein
Richard P. Darke
Schwartz, Cooper, Greenberger & Krauss
180 North LaSalle Street, Suite 2700
Chicago, Illinois 60601
(Attorneys for LaSalle Bank N.A.)
Theodore E. Harman
James R. Pittacora
Ungaretti & Harris
70 West Madison Street, Suite 3500
Chicago, Illinois 60602
(Attorneys for Lehman Brothers Holdings
Inc.)
Suzanne Karbarz Rovner
David A. Howard
Schifl' Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
(Attorneys for Revcon Construction)
Michael Gilman
O'Rourke, Hogan, Fowler & Dwyer
10 South LaSalle Street, Suite 2900
Chicago, Illinois 60603
(Attorneys for Concrete Structures of the
Midwest, Inc .)
Richard S . Reizen
Bethany E. Ammons
Kubasiak, Fylstra, Reizen & Rotunno
20 South Clark Street, 29th Floor
Chicago, Illinois 60603
(Attorneys for Maron Electric)
Dennis Powers
Piper Rudnick
203 North LaSalle Street, Suite 1800
Chicago, Illinois 60601
(Attorneys for Harmon, Ltd .)
Barry C. Kessler
Thomas A. Christensen
Kessler & Krantz
318 West Randolph Street, Fifth Floor
Chicago, Illinois 60606
(Attorneys for Great Lakes Plumbing and
Heating Company)
Christina A. Daskas
Howard C. Emmerman
Beermann, Swerdlove, Woloshin,
Barezky, Becker, Genin & London
161 North Clark Street, Suite 2600
Chicago, Illinois 60601
(Attorneys for CECO Concrete Construction)
Steven P. Rouse
Menges & Molzahn
20 North Clark Street, Suite 2300
Chicago, Illinois 60602
(Attorneys for Otis Elevator Company)
James S. Koehler
(by facsimile)
Callahan, Fitzpatrick & LaKoma
1200 Jorie Boulevard, Suite 329
Oak Brook, Illinois 60523
(Attorneys for Roy Strom)
Jeffrey M. Osterkamp
Joel J. Rhiner
Stein, Ray & Harris
222 West Adams Street, Suite 1800
Chicago, Illinois 60606
(Attorneys for Loebl, Schlossman & Hackl,
Inc .; Fujikawa Johnson & Associates, Inc
. ;
Environmental Systems Designs, Inc
.; and
Thornton-Tomasetti Group, Inc .)
Eric L. Singer
(by facsimile)
Wildman, Harrold, Allen & Dixon
2300 Cabot Drive, Suite 455
Lisle, Illinois 60532
(Co-counsel for Loebl, Schlossman & Hacki,
Inc.)
on this 10th day of February, 2003
.
P. Andrew Fleming
r
ASSIGNMENT OF CLAIMS
THIS ASSIGNMENT OF CLAIMS ("Assignment") is made by and between GRAND
PIER CENTER, L.L.C ., an Illinois limited liability company ("Assignor"), to and in favor of l .li
STREETERVILLE LLC, a Delaware limited liability company ("Assignee")
.
WITNESSETH
:
WHEREAS,
Assignor is tine owner and holder of fee simple title to certain real estate
legally described on Exhibil_A_ attached hereto and made a part hereof (the "Real Estate") and the
improvements thereon (the Real Estate and improvements are collectively the "Property") ; and
WHEREAS, Assignor and EPC GROUP,
I. .L.C ., an Illinois limited liability company,
HARMONY GROUP, L.L.C ., an Illinois limited liability company, NEW MANAGEMENT
L.LC., an Illinois limited liability company, and RELIABLE CONTRACTING AND
EQUIPMENT CO., an Illinois corporation, and RAYMOND M . CHIN, SUE LING GIN,
LINVAL CHUNG, and ELAINE CHIN, and LEHMAN BROTHERS HOLDINGS INC ., doing
business as Lehman Capital, a division of Lehman Brothers Holdings Inc., a Delaware
corporation ("Lender"), have entered into a certain Sclllemenl Agreement, dated as of March 21,
2003 (the "Settlement Agreement") pursuant to which, among oilier things, Assignor has agreed
to convey the Property and (lie Claims (as such terms are hereinafter defined) to Assignee as
nominee for Lender,
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which arc hereby acknowledged, the parties hereto hereby agree as follows
:
1
.
Assignment
.
Assignor does hereby assign, t ausl'er, set over and convey, unto
Assignee those all claims and causes of action (collectively, the "Claims") That Assignor may
have arising out of Assignor's acquisition, ownership, operation, financing and development of
the Properly, including, without limitation, any and all claims and causes of action described in
the instrument of assignment dated as of February 4, 2003,
a copy
of which is attached hereto as
Exhibit B ("Prior Assignment") (but not delenses or any counterclaims or separate claims against
AMEC, which are within the Retained Claims referred to below) and (lie Sidewalk 'horitun Claim
(defined below), such assignment effective as of the "Effective Date" defined below,
RESERVING IN ASSIGNOR, HOWEVER, the following specifically described claims, and
only the following specifically described
claims-~(a)
claims of Assignor against.Kerr McGee (or
any of its predecessors),
i+a*n
table Life Assuranee.Sotlety of the+Ufitetl'3tatw(or any of its
predecessors in title to the Real Estate), the United
tales'
.f Ameriea, A#esi'fTt
r
elated t
o
t
Company and
•
riean+dntetiatio'nal tipeeiahy Lines ITnsirratiee Company ("AIG")
related to
damages incurred by Borrower, during its period of ownership of the Real Estate caused or
resulting from the existence of thorium therein; e„rgyidfd,the claims so retained shall not (i)
prejudice the claims of Lender or Lender's Nominee, as the case may be, which may arise in any
successor in title by statute or common law with respect to damages that may he incurred by
Lender or Lender's Nominee as a result of the existence of thorium, containing soils in or under
the Mortgaged Property as of the Conveyance Date or (ii) include any claims against Kerr McGee
I
ZOOM
uL'I TWO
a NO9N80f
9T98ZLCZTe YYd 9T :CT 9002/T0/CO
(or any of its predecessors), Equitable Life Assurance-Society of (he United States (or any of its
predecessors in title to the Real Estate), the United States of America, Near North Insurance
Company and AlG or any predecessors in title to (he Real Estate related to (be existence of
thorium in or under any portion of the Land beneath any public streets or sidewalks located
thereon or in or under any streets, sidewalks or rights of way immediately adjacent to the Land
(the "Sidewalk Thorium Claim") (all such claims described in clauses (i) and (ii) above being
claims assigned to Assignee by this Assignment of Claims), (b) any and all claims against AT(,
Associates
;--Inc
. and/or its affiliates, predecessors or succ .usors related to the environmental
repuri or reports prepared by them for Borrower with respect to the Real Estate; and jc) any and
all claims against AMEO, ""(including any defenses or affirmative defenses against the AMEC
claim for foreclosure of its mechanics lien against the Real Estate) related to matters arising prior
to the Conveyance Dale (the claims identified in clauses (a), (b) and (c) above are, collectively,
the "Retained Claims"). Assignor represents and warrants that the Prim Assignment has been
rescinded and is of no force or effect, and that Assignor is the sole holder of the Claims and has
not previously assigned or encumber same (except for the rescinded Prior Assignment) . Assignor
covenants the defenses retained by Borrower with respect to the AMJ C claims shall be asserted lit'
the benefit and on behalf of Assignee's in accordance with (he terms of the Settlement Agreement,
and il'the Court should determine Borrower does not have standing to assert same Borrower shall
ie-assign such defenses to Assignee . Notwithstanding the foregoing, the retention of the defenses
of Borrower against AMEC as a part of the Retained Claims shall not prejudice the assertion by
Lender or Lender's Nominee of any defenses to AMEC's claim for foreclosure of its mechanics lien
against the Mortgaged Property that may be asserted by the title bottom of any property subject to a
I'ureclosure action
.
2 .
Accept_tnce of Assignment. Effective its of the Effective Date of this Assignment,
Assignee accepts the assignment of Claims made herein
.,
3. Successors. The terms, covenants, conditions and warranties herein contained and
the powers hereby granted shall inure to the benefit of and bind, all parties hereto and then
respective successors and assigns .
4. Severability. 1f any provision of this Assignment or the application thereof to any
entity, person or circumstance shall be invalid Or unenforceable to any extent, the remainder of
this Assignment and the application of its provisions tp,other entities, persons or circumstances
shall not be affected thereby and shall be enforced to the greatest extent permitted by law
.
5. Entire Agreement. This document and the Settlement Agreement contain the
entire agreement concerning the assignment of Claims between the parties hereto. No variations,
modifications or changes herein or hereof shall be binding upon any party hereto, unless set forth
in a document duly executed by, or on behalf of, such party
.
6 .
Construction. Whenever used herein and the context requires it, the singular
number shall include the plural, the plural the singular; and any gender shall include all genders
.
2
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am 'iias a NOSNHOf
I STSOSL99TC Yvd ST :St 5002/TO/S0
7 .
Governing Law
.
The parties agree that the law of the State of Illinois shall govern
the performance and enforcement of this Assignment
.
8
.
Counterparts
.
"This Assignment may he executed in counterparts
.
9
.
E17eelive Date
.
This Assignment shall lake effect between the parties on the dale
hereafter set forth (the "Effective Date")
.
3
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am7 'riae e NOSNHor
9TOOZLCZTt YVd LT!CT 9002/TO/CO
I
soo1M
IN WITNESS WHEREOF, (lie panics have executed this Assignment of Claims (lie
Z}f t-
day of March, 2003
.
ASSIGNOR:
GRAND PIER CENTER, L.L.C ., an Illinois
limited liability company
By :
EPC Group, L.L.C.; an Illinois limited
liability company, its manager
By :
Name :
Title :
ASSIGNEE :
LB STREETERVILLE
I,Lsy
a Delawa "
'ted)pbili
mpany.
BBy: !i _-
Name :
'Iitle:_, .__,_.__~iiJioti
a
fSig iatitiy__
Schedule of Exhibits :
Exhibit A_
Legal Description
Exhibit B
Prior Assignment
3
an 'Ttau
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stseatszls xvd crsl soozicoico
IN WITNESS WHEREOF, the parties have executed this Assignment of Claims the Z/{C
day of March, 2003 .
ASSIGNOR :
GRAND PIER CENTER, L.L.C ., an Illinois
limited liability company
Schedule of Exhibits
:
Exhibit A
Legal Description
Exhibit B
Prior Assignment
By: EPC Group, I
• .
I ..C ., an Illinois limited
liability company 'ts manager
By
:
ASSIGNEE
:
I'll STREETE.RYllLLC,
a Delaware limited liability company
By :
_
Name :
Title :
4
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9001
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'1'190
'P NOSNHOI'
9T99ZLCZIC YYd LT :CT 9002/TO/CO
•
"OFFICIAL SEAL"
•
SHARON M.STROBO
Notary Public, State of Illinois
;
•
My Commission Expires 8131104
ASSIGNOR'S ACKNOWLEDGMENTS
Achnowledgenrent of Grand Pier Center, L.1,.C.' .
1, the undersigned, a Notary Public in and for said County, in the Stale aforesaid, do
hereby certify that
A{;,y,„1r//1
11A,,
personally known to me to be the same person whose name is
subscribed to the foregoing instrument as the
J
1;1„la
of EPC Group, L.L.C., an Illinois
limited liability company, the manager of Grand Pier Center,L
.-C
., an Illinois limited liability
company, appeared before me this day
fit
person and acknowledged that lie signed and delivered
the said instrument as his own free and voluntary act, and as the lice and voluntary act of said
limited liability company for the uses and purposes therein set forth
.
GIVEN under my hand and Notarial seal this Z'/
•"
_ day of March, 2003
.
NOTARY PUBLIC
5
LOOIA
U1 1139 1 NOSNHOF
919OZ49ITC IVA Ln tT 900Z/10/g0
STATE OF ILLINOIS
)
COUNTY OF COOK
)SS
)
ASSIGNEE'S ACKNOWLEDGEMENT
New
a Notary Public in and for said Co~&ddit~ t
t`1e
St to aforesaid, DC)
HEREBY CERTIFY that : : Y :( .i
n)dbt:r _ the
of, personally known
In
me
to be the same person whose name is subscribed to the foregoing instrument as such officer,
appeared before me this day in person and acknowledged that he signed and delivered the said
instument as his own free and voluntary act and as the ti-ee and voluntary act
of said corporation,
for the uses and purposes therein set forth,
st'
GIVEN tinder my hand and Notarial Seal this 21
day of March, 2003
.
Notary PUNib
My Commission expires :
1eARIBPL RUIZ
Notary Public, State
of
New
York
No .
01RU6081733
Oualiflod
in County
of
New
York
Commission Fxplres October
B, 2006
5
Boom
a.L7 '1'IHH T N09NI10f
9T99;LC;TC YYd LT :CT 900;/T0/vo
STATE OF IL
01S
)
COUNTY OIN
t
York
)
1011,081 Rdu
EXHIBIT A
Legal Descri
)II
Block I in Cityliont (.'enter, being a resubdivision in the North fraction of
Section 10, Township 39 North, Range 14 East of the Third Principal Meridian, in Cook
County, Illinois
.
Also known as :
PARCEL I
:
That part of Block I in Cityfront Center, being a resubdivision in the North fraction of
Section 10, Township 39 North, Range 14 East of the Third Principal Meridian, described
as follows :
Beginning at the Northeast corner of said Block I ; (hence Soullt along the East line of
said Block I, a distance of 125 .106
Ices
to a point of curve; thence Southerly along the
Easterly line of said Block 1, being file arc of a circle tangent to the last described line
convex to the Fast and having a radius of 2809 .79 feet, an arc distance of 92 .522 feet to
the Southeast comer of said Block 1 ; thence West along the South line ol'said Block I, a
distance of 426.334 feet; thence North along a line perpendicular to said South line of
said Block I, a distance of 99 .948 feet to a corner
in
said Block l ; thence North along a
West line of said Block I, a distance of 117 .947 feel to the Northwest corner of said
Block l ; thence East along the North line of said Block 1, a distance of 428 .054 feet to
the point of beginning, in Cook County, Illinois .
PARCEL. 2
:
That part of Block I in Cityfronl ('enter, being
a
resubdivision in the North traction of
Section 10, Township 39 North, Range 14 East of the Third Principal Meridian, described
as follows :
Beginning at the Southwest corner ol'said Block I ; thence North along the West line of
said Block 1, a distance of 99 .944 feet to a Northwest corner of said Block 1 ; thence East
along a North line of said Block, being the South line of a public alley, a distance of
150.00 feet to a confer of said Block I ; thence South along a line perpendicular to the
South line of said Block I at a point 150 .164 feet East, as measured along said South line,
from the Southwest comer of said Block I, a distance of 99 .948 feet to the South line of
said Block 1 ; thence West along the South line of said Block 1, a distance of 150.164 Ieet
to the point of beginning, in Cook County, Illinois
.
I
6001B
till T130 9 NOSNHOE
9T90ZLCZTC Y9d LT:CT POOZ/I0/CO
ono lit
EXHIGIT .B
ASSIGNMRNI_OFCLAIMS
Thus
Assigammt o(Claims ('Assigtaneof) is nniarle and utcerul
into
as of dis 4~' day of February,
2003 by and anwng Grand Pier Center,
LLC., an Illinois
Belted liability conipany (Assignor'), on (he
one hard, and EPC Group, LL-C, an Illinois limited liability company and die managing member of
Assignor, Hamrony Group, LLC, an Minis limited liability company and inmdld of Assignor, New
Management, LLC, an Illinois linseed liability comliarty and mcrnber of Assignor,
Reliable Contracting
& Eguiptnnina Co., an Blnois corporation art( niendxrof Assignor (codednvely, doe "Assgna&') on die
other. (Assignor and Assignees are sornetirrxs reflectively referred to herein as doe "Parties .')
WHEREAS, Assignor is the owner of that certain red estate located at die southwest cornets of
Grand Avenue and Columbus Dnvq C(ikago, Illinois (the "Propay/) are) has been
constructing,
developing and leasing a mixed-use retail endparkbng garage development on the Pmperty(the
"Project ) ;
WHEREAS, As igtor is a patty to actions arising out of the project and pending in
the Circuit
Court of Cook County, Illinois, styled laSalle Bank National AlViadon v. Gland Pier Caret, LL.C.,
I
Case No. 01 CH 10930 and AMFC Cavtnrdinra Ivty ore» ent. bx. et al v, limed Pier Cxnter,
f ".T
x.
et al„ Case No. 01 CH 11407, which actions have been consolidated (die "Lawsuit');
WHEREAS, Assignor is die owner of certain claims relate( to the Property, the Project and/or
the Lawsuit (die "Claims') that have been asxticd or nmy be asserted it die lawsuit against one or more
of die pasties listed an Exhibit A hereto.
71ie Claims include chins that love been, asserted a tray be
assered against: (a) I a a11oBank National Association C9aSalle) and Ldxnan .fimdxas Holdings, Inc .
C
L hmn") (collectively, die "Lender Claims'); (b) AMC ConsUction Management, Inc. f'AMEC)
and various of its suixontraclots (collectively, (Ire "I.ieri claims'); nod (c) the nrnaining panties listed ai
Exhibit A hauto (die "Other Clams') ;
WHEREAS, Assignees have to date been directing and, in great part, financing die PrusecudOn
of die Clains;
WHEREAS, IaSale and Lebnwt have consistently takers the position in the lawsuit that the
Lender Clans have no merit ;
WHEREAS, on January 14, 2003, Lclxnan suit a Notification of Digxwition of Collabasal to
Assignor and Assignees of its intention to conduct a non-judicial sale of the membuship interests in
Assignor (die 'Sale') on February 5, 2003 at 10 :00 air .;
WHEREAS. Assignor maintains a good faith belief that, if die tnetnbaship interests in Assignor
are sold at the Sale, die Lender Claims will not be appropriately pursued on
behalf of Assignor tad,
acconlingly, goal and legidnnte claims nay be forever lost and wrongdoers nay be allowett to avoid
respo sbility arid liability for their actions ;
cii'l
TIAB 9 N0SNl10f
SISSZLCZTC Yyd ST :t1 9002/T0/C0
WHEREAS, due Court's Opinion dated February 3, 2003 states that, in the event tat tale Sale
occurs, Assignees would "certainty have a legal claim agaia1 LaSalle for their ins?';
WHEREAS, LaSalle disputes the Court's finding in dLia regard and takes die position that:
(a) Assignees wouldhave no slardnng to make any of due Claims ; and (b) alpcrdingclauiis againstLaSale
will kunirM upon die S*
WREItEAS, the Parties desire
o
quote dal die Claim
;
will
be prosautni if the Sale occurs and
did the Court's above-dambod finding will trot be fmshated;
WHEREAS, Assignor maintains a good faith belief da,if the 'iiem
ership inteti.ts it Asigor
me sold at the Sale, die Claims will not be vigorously pursued arid, a
•,
conbngly, the Claims would be recite
valuable to Assign= tan to Assignor
WHEREAS, Assigerdesires to assign the Claims to Assignees in oula to ; among oil=
things,
assure that the Claims ale in the hands of parties who will vigomica pnra ie then
;
NOW, THEREFORE, in consideration of the foregoing and die mutual
agreements erein
contained, and other good and valuable consideration, including, but not Iinied to, Assignees' role in the
prosuulion of die Claims to date, die receipt and sufficiency of which are hereby admowledged, the
Parties hereto hereby agree as follows :
1 .
A Anent . Assignor hereby assign to each of die Assignors, and each of the Assignees
hereby accepts such assignment, on a pro rata basis in accordance with their respective percentage of
ownership in the Assigor, all of Assigor s nigh, tide and unrest in, to and under any and all rights,
claum,choses it action, suits, settlements, awards, and)tde ncnts,whetherchuate or inchoate, foranyaml
all hanur, costs, expenses, losses, damages, penalties, lost profits, expxnaxx and disbtnsemcnts (including
without limit legal fees and expenses) which Assignor now has or may have in de future against each
of the panties listed inExhibit A hereto, wliederat Law or in rclodty,which includes the entire anotrtofte
claim that Assignor is endued to atsat
2. DWiME
lheobligatiosandliabiitiesbidlcpartiesheretmdcrshallbebidirgupon
and enWrceable against thePalties and each party he eo, and
their
umpective slucessoe and assigns and
shall inure to the benefit of such pastas and their sacceswrs and assign
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AIG hmrrance Co.
Aroctican International Specialty Lines htsurnc Co
.
AMEC Consimcion Managctneny Inc.
ATC Associates, lc
.-
ATC Grow Services Inc
.
BCM Enguwecs lna
CECO Concrete Construction
Compass Manage n nt & Leasing Inc
Concrete Smtctrues of the Midwest, Inc
.
Euvht mmvah Systans Qsign, Inc
Equitable Ilk Assurance Society of the United States, and pcedccessors in title
ERE Yam cu h
Fujtkacrra Johnson & Associates, Inc .:
Great Lakes Plumbing & Heating Co.
Hannort Linied
Kerr-McGee Corporation and its predecessor Linsd y Liglu and Owmirtl Company
LaSalle Bank National Association
Lehman Brothels
Iioldaigs,
Inc.
Loebl, Scblosscnan & Hacld
Maron Electric Co.
Near North Insurance Brokerage, hw
.
North River Insurance Co
.
Otis Elevator Co.
Revcon Construction
Roy sawn rAmvating & (lading Co .
Smith Eavaunmeu alTech stogies Corporation
Smith Technology Corporation
Thomton-Tomtiseni Group, Inc
.
US. Fitt Inn, Co.
United States ofAmeica, and its Officers, Ikp unnents, and Agencies
4
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QL9 9986'4 NOSN60P
BTg0ZLCCTC XVd 9T
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