Much Shelist Freed Den
Ament & Rubenstein,
P.c.
ATTORNEYS AT LAW
Established 1970
September 17, 2001
BY MESSENGER
Illinois Pollution Control Board
Attn
: The Honorable Dorothy M . Gunn, Clerk
100 W. Randolph Street
James R
. Thompson Center, Suite 11-500
Chicago, IL 60601-3218
Re: Cole Taylor Bank v.
Rowe Industries, Inc ., et al., PCB-01-173 Citizen's
Enforcement
Dear Ms
. Gunn :
Enclosed for filing in the above-referenced matter are an original and nine copies
of Respondent Rowe Industries, Inc
.'s Answer and Affirmative Defenses
. There is one
extra copy . Please file-stamp it for our files and return it to the messenger
.
If you have any questions, please do not hesitate to give me a call
. I thank you in
advance for your cooperation .
WAS/lao
Enclosures
cc: All Counsel of Record
200 North LaSalle Street, Suite 2100
Chicago, Illinois 60601-1095
312 346-3100 Telephone
312 621-1750 Fax
312/621-1753gspeary©muchlaw
.co m
RECEIVED
CLERK'S nrpl(`r
SEP 1 7 2001
STATE OF
ILLi1VUIS
Pollution Control Board
RE
CLERK'S
CEIVED
OFFFCCF
SEP 1 7 2001
COLE TAYLOR BANK,
BEFORE
not
THE
individually,ILLINOIS
POLLUTION
)CONTROL
BOARVFAFE
Pollution
UI-,
Control
;
L
„4uIs
Board
But solely as trustee under a certain Illinois
)
Land trust known as trust 40323 ; as
)
Successor trustee to Michigan Avenue
)
National Bank of Chicago, under trust 1904,
)
Complainant,
)
PCB-01-173
Citizen's Enforcement
vs .
)
Respondents .
)
NOTICE OF FILING
To: Raymond T . Reott
Gerald B. Mullin
Joseph R . Podlewski
Christina M . Landgraf
Gerald B
. Mullin, P
.C.
Schwartz Cooper
Jenner & Block LLC
Suite 3030
Greenberger & Krauss Chtd .
One IBM Plaza
55 E. Monroe Street
180 N . LaSalle, Suite 2700
Chicago, IL 60611
Chicago, IL 60603
Chicago, IL 60601
Please take notice that the undersigned caused to be filed on September 17, 2001 with the
Pollution Control Board, the Respondent Rowe Industries, Inc.'s
Answer And Affirmative Defenses,
a copy of which is herewith served upon you .
ROWE INDUSTRIES, INC., a corporation,
successor to COLEMAN CABLE AND WIRE
COMPANY, a corporation, and CHAPCO
CARTON COMPANY, a corporation,
MUCH SHELIST FREED DENENBERG
AMENT BELL & RUBENSTEIN, P .C .
200 North LaSalle, Suite 2100
Chicago, IL 60601
(312) 346-3100
Firm No . 80580
_1,
CFRTIFICATF OF RFRVICF
I, William A . Speary, Jr ., one of the attorneys for Chapco Carton Company, certify that
on September 17, 2001, I caused copies of the Respondent Rowe Industries, Inc.'s Answer
And Affirmative Defenses and the notice thereof to be sent by first class mail to the attached
Service List
.
William A . Speary, Jr .
MUCH SHELIST FREED DENENBERG
AMENT & RUBENSTEIN, P.C.
200 North LaSalle Street, Suite 2100
Chicago, Illinois 60601-1095
(312) 346-3100
#80580
Raymond T . Reott
Christina M
. Landgraf
Jenner & Block LLC
One IBM Plaza
Chicago, IL 60601
Gerald B . Mullin
Gerald B . Mullin, P.C.
Suite 3030
55 E. Monroe Street
Chicago, IL 60603
Joseph R. Podlewski
Schwartz Cooper
Greenberger & Krauss Chtd .
Suite 2700
180 N . LaSalle Street
Chicago, IL 60601
$FRVIf F I IST
RECEIVED
CI ERK'S OFFICE
SEP 1 7 2001
BEFORE THE ILLINOIS POLLUTION CONTROL BOARDSTATE OF ILLINOIS
Pollution Control Board
COLE TAYLOR BANK, not individually,
)
But solely as trustee under a certain Illinois
)
Land trust known as trust 40323 ; as
)
Successor trustee to Michigan Avenue
)
National Bank of Chicago, under trust 1904,
)
Complainant,
)
PCB-01-173
Citizen's Enforcement
vs.
)
ROWE INDUSTRIES, INC
., a corporation, )
successor to COLEMAN CABLE AND WIRE
)
COMPANY, a corporation, and CHAPCO )
CARTON COMPANY, a corporation,
)
Respondents .
)
RESPONDENT ROWE INDUSTRIES, INC
.'S
ANSWER AND AFFIRMATIVE DEFENSES
Respondent Rowe Industries, Inc . a Delaware corporation,
("Rowe"), by its
attorneys, responds to Complainant, Cole Taylor Bank's ("Cole Taylor") Complaint as
follows:
1 .
Complaint :
Complainant, Cole Taylor Bank, not individually, but solely
as trustee under a certain Illinois land trust known as trust 40323, as successor trustee
to Michigan Avenue National Bank of Chicago, under trust 1904 (hereafter "Cole
Taylor") is an Illinois land trust holding legal title to certain real property located in Cook
County, Illinois, commonly known as 1810 North Fifth Avenue, River Grove, Illinois
.
Answer:
Rowe lacks sufficient knowledge to form a belief as to the
truth of the allegations contained in Paragraph 1 of the Complaint and, therefore, it
denies each and every one of them .
2.
Complaint :
Respondent, Rowe Industries, Inc ., (hereafter "Rowe")
successor to Coleman Cable and Wire Company (hereafter "Coleman") is a corporation
organized under the laws of Delaware
. Complainant is informed and believes, and
upon such information and belief alleges that Rowe has its principal place of business in
Phoenix, Arizona .
Answer :
Rowe denies that its principal place of business is in
Phoenix, Arizona
. It admits only the remainder of the allegations in Paragraph 2 of the
Complaint .
3.
Complaint:
Respondent, Chapco Carton Company (hereafter "Chapco")
is a corporation organized under the laws of Delaware .
Answer:
Rowe lacks sufficient knowledge to form a belief as to the
truth of the allegations contained in Paragraph 3 of the Complaint and, therefore, it
denies each and every one of them .
4.
Complaint : On May 21, 1971 Coleman, as lessee, entered into a written
lease with Michigan Avenue as lessor, for the rental of certain property commonly
known as 1810 North Fifth Avenue, River Grove, Illinois, (hereafter the "Property")
which lease terminated on December 31, 1996 .
Answer :
Rowe admits only that the lease exists as a written
document and that the document speaks for itself
. To the extent that the allegations in
Paragraph 4 seek to characterize the lease and its terms, Rowe denies said allegations
.
Accordingly, Rowe denies that the lease terminated on December 31, 1996 .
5,
Complaint :
In 1984 Coleman, as sublessor, entered into a sublease
agreement with Chapco as sublessee
. Chapco remained in possession of the Property
2
from 1984 as Coleman's sublessee until December 31, 1996, the date of expiration of
Coleman's lease
.
Answer:
Rowe admits only that the sub-lease exists as a written
document and that the document speaks for itself
. To the extent that the allegations in
Paragraph 5 seek to characterize the sub-lease and its terms, Rowe denies said
allegations
. Accordingly, Rowe denies that either the lease or the sub-lease terminated
on December 31, 1996 . By way of further answer, Rowe states that Chapco remained in
possession of the Property under a sub-lease or a lease from 1984 until January 31,
2001 .
6.
Complaint : At various times between 1971 and the date of the filing of
this complaint, the exact dates of which are at present unknown to Complainant, and
during the time that the Property was in the possession and control of Coleman and/or
Chapco, either or both of Coleman and/or Chapco, caused or allowed certain hazardous
materials containing, among other substances classified as hazardous substances
under the Illinois Environmental Protection Act (the "Act") (414 ILSC 5/3
.14) to become
deposited in the soil at the Property .
Answer:
To the extent that the allegations in Paragraph 6 of the
Complaint refer to Coleman and/or Rowe, Rowe denies each and every one of said
allegations
. To the extent that the allegations in Paragraph 6 of the Complaint refer to
Chapco, Rowe states that it lacks sufficient knowledge to form a belief as to the truth of
said allegations and, therefore, it denies each and every one of them
.
3
7.
Complaint :
Analyses of soil samples taken in February, 2001 from the
Property reveal hazardous substances to be present
. Specifically, tetrachlorothene,
arsenic benzo(a)pyrene and lead were found in the soil in the following concentrations
:
Answer:
Rowe lacks sufficient knowledge with which to form a belief
as to the truth of the allegations contained in Paragraph 7 of the Complaint and,
therefore, it denies each and every one of them
.
8 .
Complaint: The contamination of the soil at the Property results from the
Respondents' use of the hazardous substances at the Property
.
Answer:
To the extent that the allegations in Paragraph 8 of the
Complaint refer to Coleman and/or Rowe, Rowe denies each and every one of said
allegations
. To the extent that the allegations in Paragraph 8 of the Complaint refer to
Chapco, Rowe lacks sufficient knowledge to form a belief as to the truth of said
allegations and, therefore, it denies each and every one of them
.
9.
Complaint :
Section 3 .53 of the Act defines "Waste" as, inter alia, any
"discarded material" resulting from commercial operations (415 ILCS 5/3
.53) .
4
Compound
Boring No.
Depth of Sample
(in feet)
Concentration
Tetrachloroethene
B-2
0-3
330 parts per billion
(ppb)
Arsenic
B-3
0-3
18,000 ppb
Benzo(a)pyrene
B-1
0-3
230 ppb
Lead
B-1
0-3
440,000 ppb
Answer :
The allegations contained in Paragraph 9 of the Complaint
are conclusions of law for which no answer is required .
10.
Complaint : The hazardous substances found in the soil at the Property,
including tetrachloroethene, arsenic, benzo(a)pyrene and lead, constitute "Waste" as
that term is defined in Section 3
.53 of the Act (415 ILCS 5/3 .53) .
Answer:
With respect to the allegations contained in Paragraph 10
that hazardous substances including tetrachloroethene, arsenic, benzo(a)pyrene and
lead, were found in the soil at the Property, Rowe lacks sufficient knowledge to form a
belief as to the truth of these allegations and, therefore, it denies each and every one of
them
. Rowe denies each and every one of the remainder of the allegations contained in
Paragraph 10 .
11 .
Complaint : Section 3
.08 of the Act defines "Disposal" as follows :
"Disposal" means the discharge, deposit, injection, dumping, spilling,
leaking or placing of any waste or hazardous waste into or on any land or
water or into any well so that such waste or hazardous waste may enter
the environment or be emitted into the air or discharged into any waters,
including ground waters .
415 ILCS 5/3
.08.
Answer
:
The allegations contained in Paragraph 11 of the Complaint
are conclusions of law for which no answer is required .
12 . Complaint :
The disposal of waste has occurred at the Property, as
evidenced by the existence of hazardous substances, including tetrachloroethene,
arsenic, benzo(a)pyrene and lead in the soil at the Property .
Answer:
With respect to the allegations contained in Paragraph 12
that hazardous substances including tetrachloroethene, arsenic, benzo(a)pyrene and
5
lead, exist in the soil at the Property, Rowe lacks sufficient knowledge to form a belief
as to the truth of these allegations and, therefore, it denies each and every one of them
.
Rowe denies each and every one of the remainder of the allegations contained in
Paragraph 12 .
13 .
Complaint: Section 21 (e) of the Act provides that
:
No person shall . . . [d]ispose, treat, store or abandon any waste, or
transport any waste into this State for disposal, treatment, storage or
abandonment, except at a site or facility which meets the requirements of
this Act and of regulations and standards thereunder .
415 ILCS 5/21
(e) .
Answer :
The allegations contained in Paragraph 13 of the Complaint
are conclusions of law for which no answer is required .
14. Complaint : The Property does not meet the requirements of a waste
disposal site or facility under the Act and applicable Illinois Pollution Control Board
regulations.
Answer:
Rowe states that it lacks sufficient knowledge to form a belief
as to the truth of the allegations contained in Paragraph 14 of the Complaint and,
therefore, it denies each and every one of them
.
15.
Complaint : By causing or allowing the contamination of soil at the
Property with hazardous substances, including tetrachloroethene, arsenic,
benzo(a)pyrene and lead the Respondents have engaged in the disposal of waste at
the Property in violation of Section 21 (e) of the Act .
Answer :
Rowe denies each and every one of the allegations
contained in Paragraph 15 of the Complaint
.
6
16 .
Complaint :
Such violation of Section 21 (e) of the Act is continuing, and
will continue unless and until abated by order of the Illinois Pollution Control Board
.
Answer:
Rowe denies each and every one of the allegations
contained in Paragraph 16 of the Complaint .
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor
; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe; and such other and further relief to which Rowe is entitled under the law
.
FIRST AFFIRMATIVE DEFENSE
: DUPLICITOUS ACTION
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741
.205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that
:
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 Q) of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act
. The respondent raising a defense
set forth in Section 22
.2 Q) or a limitation set forth in Section 58 .9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence."
[35 III . Admin. Code §741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a
release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741
.205 (b) (2) of the Board's Proportionate Share Liability Regulations .
7
[35 III . Admin
. Code §741 .205 (b) (2) .]
Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the defense that the Board lacks subject matter
jurisdiction under Section 31 (d) of the Act . [415 ILCS 5/31
(d) .]
3.
In order for the Board to have subject matter jurisdiction over a "citizen's
suit" under Section 31 (d) of the Act, the proceeding cannot be "duplicitous" or
"duplicative", as those terms are used in the Act and Board regulations promulgated
pursuant thereto
. [415 ILCS 5/ 31 (d) & 35 Ill . Admin
. Code Parts 101 & 103 .]
4.
A "citizen's suit" is "duplicitous" or "duplicative" if it is substantially similar
to another proceeding brought before another forum
. [35 III . Admin. Code § 101
.202 .]
5.
Prior to the filing of its Complaint herein, Cole Taylor filed a lawsuit against
Rowe in the Cook County Circuit Court, Cole Taylor Bank v.Rowe
Industries, Inc.,, et
al.,
97 L 004984 ("the Circuit Court Case")
. (A copy of the complaint in the Circuit
Court Case is attached hereto as Exhibit "A" and it is incorporated herein by reference
.)
6.
As it does in Paragraphs 6 throughl6 of its Complaint filed herein, in
Paragraphs 7 and 11 throughl3 of its complaint filed in the Circuit Court Case, Cole
Taylor alleged that Rowe violated Section 21 (e) of the Act, by "causing or allowing the
contamination of the soil at the Property with hazardous substances"
. [415 ILCS 5/21
(e).]
7 .
As it has done herein, in the Circuit Court Case, Rowe filed an answer
denying those allegations
. (A copy of Rowe's answer in the Circuit Case is attached
hereto as Exhibit "B" and it is incorporated herein by reference
.)
8.
For its relief herein, Cole Taylor seeks an order from the Board that Rowe
remediate the Property through the removal of the contamination that is allegedly on the
8
Property and that allegedly resulted from the disposal of hazardous substances Cole
Taylor claims occurred on the Property . For its relief in the Circuit Court Case, Cole
Taylor sought a monetary sum ($250,000
.00) against Rowe that allegedly equaled the
cost to remediate the Property through the removal of the contamination that was
allegedly on the Property and that allegedly resulted from the disposal of hazardous
substances Cole Taylor claimed occurred on the Property .
9.
The "citizen's suit" brought herein is substantially similar to the proceeding
brought in the Circuit Court Case . Therefore, the "citizen's suit" brought herein is
"duplicitous" or "duplicative" as those terms are used in the Act and Board regulations
promulgated pursuant thereto . [415 ILCS 5/ 31 (d) & 35 III . Admin. Code Parts 101 &
103.1 .
10. Because the "citizen's suit" brought herein is "duplicitous" or "duplicative",
the Board lacks subject matter jurisdiction under Section 31 (d) of the Act . [415 ILCS 5/
31 (d).]
11 .
Under Section 31 (d) of the Act, as incorporated by Section 741 .205 (b)
(2) of the Board's Proportionate Share Liability Regulations, this "citizen's suit" is barred .
[415 ILCS 5/31 (d) & 35 III . Admin . Code § 741 .205 (b) (2).]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor
; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe ; and such other and further relief to which Rowe is entitled under the law
.
9
SECOND AFFIRMATIVE DEFENSE
: LACK OF MATERIAL
CAUSATION/CONTRIBUTION
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741
.205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 0) of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act
. The respondent raising a defense
set forth in Section 22 .2 0) or a limitation set forth in Section 58 .9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence ."
[35 III
. Admin . Code §741 .205 (b) (2).]
2.
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741
.205 (b) (2) of the Board's Proportionate Share Liability Regulations,
[35 III . Admin. Code § 741 .205 (b)
(2) .] Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the limitations set forth in Section 58
.9 (a) (2) (A) of
the Act
. [415 ILCS 5/58 .9 (a) (2) (A).]
3.
Under Section 58
.9 (a) (2) (A) of the Act, a "citizen's suit" such as the one
herein is barred against any "person who neither caused nor contributed to in any
material respect a release of [hazardous substances] on, in or under the site"
. [415
ILCS 5/58.9 (a) (2) (A) .]
10
4.
On information and belief, at all relevant times several of the hazardous
substances for which Cole Taylor alleges to have found in the soil at the Property and
for which it seeks to hold Rowe liable to remediate are found to exist naturally in all soils
throughout the North American continent and/or the world .
5.
On information and belief, at all relevant times the hazardous substances
Cole Taylor alleges to have found in the soils at the Property and for which it seeks to
hold Rowe liable to remediate were processed, stored or otherwise used by the
manufacturing and other businesses located on the various parcels of real estate
adjoining or near the Property . At all relevant times these other businesses were owned
and/or operated by third parties over whom Rowe had no control and for whose acts it
cannot be held responsible .
6 .
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property
. If the Board finds that hazardous substances do exist at the Property, their
existence is due to an act of God and/or to the acts or omissions of unaffiliated third
parties over whom Rowe had no control and for whose acts it cannot be held
responsible .
7 .
Rowe neither caused nor contributed to in any material respect a release
of hazardous substances on, in, under or from the Property as those terms are used in
Section 58 .9 (2) (A) of the Act. [415 ILCS 5/58
.9 (a) (2) (A) .]
8.
Under Section 58
.9 (a) (2) (A) of the Act, as incorporated by Section
741
.205 (b) (2) of the Board's Proportionate Share Liability Regulations, this "citizen's
suit" is barred . [415 ILCS 5/58 .9 (a) (2) (A) & 35 III . Admin
. Code § 741 .205 (b) (2) .]
11
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe
; and such other and further relief to which Rowe is entitled under the law .
THIRD AFFIRMATIVE DEFENSE : ACT OF GOD
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741 .205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22
.2 0) of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act . The respondent raising a defense
set forth in Section 22 .2 0) or a limitation set forth in Section 58
.9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence ."
[35 III . Admin. Code §741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741 .205 (b) (2) of the Board's Proportionate Share Liability Regulations .
[35 III . Admin . Code § 741 .205 (b) (2) .]
Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the defenses set forth in Section 22
.2 0) (1) (A) of
the Act. [415 ILCS 5/22 .2
0) (1) (A) .]
12
3 .
Under Section 22 .2 (j) (1) (A) of the Act, no person shall be held liable to
remediate any release or threatened release of a hazardous substance and the
damages resulting therefrom if it can be shown by the preponderance of the evidence
that said release was caused solely by an act of God
. [415 ILCS 5/22 .2 0) (1) (A).]
4.
On information and belief, at all relevant times several of the hazardous
substances for which Cole Taylor alleges to have found in the soil at the Property and
for which it seeks to hold Rowe liable to remediate are found to exist naturally in all soils
throughout the North American continent and/or the world .
5.
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property
. If the Board finds that hazardous substances do exist at the Property, their
existence is due to an act of God as that term is used in Section 22
.2 0) (1) (A). [415
ILCS 5/22 .2 0) (1) (A).]
6 .
Under Section 22 .2 0) (1) (A) of the Act, as incorporated by Section
741 .205 (b) (2) of the Board's Proportionate Share Liability Regulations, this "citizen's
suit" is barred
. [415 ILCS 5/22 .2 0) (1) (A) & 35 III . Admin . Code § 741 .205 (b) (2) .]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor
; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe
; and such other and further relief to which Rowe is entitled under the law .
13
FOURTH AFFIRMATIVE DEFENSE: ACT OF A THIRD PARTY
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741
.205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 0)
of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act
. The respondent raising a defense
set forth in Section 22
.2 0) or a limitation set forth in Section 58
.9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence ."
[35 III . Admin Code § 741
.205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741
.205 (b) (2) of the Board's Proportionate Share Liability Regulations
.
[35 Ill . Admin . Code §741
.205 (b) (2) .] Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the defenses set forth in Section 22
.2 0)
(1) (C) of
the Act. [415 ILCS 5/22 .2 0)
(1) (C) .]
3.
Under Section 22 .2 0)
(1) (C) of the Act, no person shall be held liable to
remediate any release or threatened release of a hazardous substance and the
damages resulting therefrom if it can be shown by the preponderance of the evidence
that said release was caused solely by an third party, "other than an employee or agent
of the defendant, or other than one whose act or omission occurs in connection with a
14
contractual relationship, existing directly or indirectly, with the defendant"
. [415 ILCS
5/22 .2 (j) (1) (C) .]
4.
On information and belief, at all relevant times several of the hazardous
substances Cole Taylor alleges to have found in the soils at the Property and for which
it seeks to hold Rowe liable to remediate were processed, stored or otherwise used by
the manufacturing and other businesses located on the various parcels of real estate
adjoining or near the Property
. At all times relevant these other businesses were owned
and/or operated by third parties as that term is used in Section 22 .2 (j) (1) (C) of the Act
.
[415 ILCS 5/22
.2 (j) (1) (C).]
5.
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property. If the Board finds that hazardous substances do exist at the Property, their
existence is due to the acts or omissions of third parties as that term is used in Section
22.2 (j) (1) (C) of the Act
. [415 ILCS 5/22 .2 0) (1) (C).]
6.
Under Section 22 .2 (j) (1) (C) of the Act, as incorporated by Section
741
.205 (b) (2) of the Board's Proportionate Share Liability Regulations, this "citizen's
suit" is barred . [415 ILCS 5/22
.2 Q) (1) (C) & 35 III. Admin . Code § 741 .205 (b) (2) .]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor
; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe; and such other and further relief to which Rowe is entitled under the law
.
15
FIFTH AFFIRMATIVE DEFENSE
:
RELEASE PERMITTED BY STATE OR FEDERAL LAW
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741 .205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 0)
of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act
. The respondent raising a defense
set forth in Section 22
.2 (j) or a limitation set forth in Section 58
.9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence ."
[35 III . Admin. Code §741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741 .205 (b) (2) of the Board's Proportionate Share Liability Regulations
.
[35 III
. Admin . Code §741 .205 (b) (2).]
Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the defenses set forth in Section 22 .2 0) (2) of the
Act. [415 ILCS 5/22 .2 (j) (2) .]
3.
Under Section 22 .2 0) (2) of the Act, no person shall be held liable to
remediate any release or threatened release of a hazardous substance and the
damages resulting therefrom if it can be shown by the preponderance of the evidence
that said release is "permitted by State or federal law"
. [415 ILCS 5/22 .2 0) (2).]
16
4.
Under Title XVII of the Act, the Board and/or the IEPA have established a
set of standards for contaminants in the soils of the State of Illinois that are permissible
if the site in question is to be used for "commercial/industrial purposes" . These
regulations are commonly referred to as the Tiered Approach To Corrective Action
Objectives or "TACO" Regulations . [415 ILCS 5/58 .11 & 35 III . Admin . Code Part 742 .]
5.
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
are permissible if the site in question is to be used such that any "engineered barriers"
to exposure to said contamination will not be disturbed . [415 ILCS 5/58 .11 & 35 III .
Admin . Code Part 742 .]
6 .
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
are permissible if the site in question is located in a community that has an ordinance
outlawing the use of groundwater for potable purposes . [415 ILCS 5/58 .11 & 35 III .
Admin. Code Part 742 .]
7 .
On information and belief, at all times relevant the Property has been
located in the center of a large commercial/industrial complex and it is surrounded by
numerous facilities that are used primarily for commercial/industrial purposes . At all
relevant times, the Village of River Grove has had in effect a zoning ordinance whereby
the entire area where the Property is located is zoned for commercial/industrial
purposes.
8 .
On information and belief, at all relevant times the hazardous substances
Cole Taylor alleges to have found in the soils at the Property and for which it seeks to
17
hold Rowe liable to remediate were processed, stored or otherwise used by the
manufacturing and other businesses located on the various parcels of real estate
adjoining or near the Property . At all relevant times these other businesses were owned
and/or operated by third parties over whom Rowe had no control and for whose acts it
cannot be held responsible .
9.
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property.
10.
On or about January 31, 2001, the lease terminated and the Property was
vacated . On information and belief, from that point forward and until they leased the
Property to an unaffiliated third party in May of 2001, the Property was under the
exclusive possession and control of Cole Taylor and the Property's beneficial owners
.
11 .
On information and belief, although they knew of the alleged existence of
hazardous substances on the Property, from the time they took exclusive possession
and control of the Property until the present neither Cole Taylor nor the beneficial
owners of the Property have made any effort to remove or otherwise remediate this
alleged contamination .
12.
On information and belief, in about May 2001, Cole Taylor and the
beneficial owners of the Property leased the Property to an unaffiliated third party,
whereby that third party is allowed to use the Property for commercial/industrial
purposes for a period of up to 10 years
. On information and belief, the third party tenant
intends to use the Property for commercial/industrial purposes during the period of the
lease .
18
13 .
On information and belief, at all relevant times there have existed on the
Property structures that act as engineered barriers to exposure to the alleged
contamination at the Property
. On information and belief, the third party tenant does not
intend to remove or disturb these structures during his/her occupation and use of the
Property .
14 .
On information and belief, at all relevant times the Village of River Grove
has had an ordinance in effect that outlaws the use of groundwater for potable
purposes.
15.
On information and belief, the third party tenant is aware of the allegations
of contamination at the Property
. Yet, he/she has occupied the Property without any
remediation of the alleged contamination at the Property that Cole Taylor claims herein
is necessary .
16.
On information and belief, if the Board finds that the alleged contamination
at the Property does exist, at all times relevant said contamination has never exceeded
the Board's standards for commercial/industrial use . Nor has it ever exceeded the
Board's standards that are applicable if engineered barriers remain in place
. Nor has it
ever exceeded those standards that are applicable because the Village of River Grove
has an ordinance outlawing the use of groundwater for potable purposes
.
17 .
On information and belief, if the Board finds that the alleged contamination
does exist at the Property, then at all times relevant said contamination has constituted
a release of hazardous substances permitted under State law, as set forth in Section
22.2
(j) (2) of the Act .
19
18 .
Under Section 22 .2 (j) (2) of the Act, as incorporated by Section 741 .205
(b) (2) of the Board's Proportionate Share Liability Regulations, this "citizen's suit" is
barred . [415 ILCS 5/22
.2 (j) (2) & 35 III . Admin . Code §741 .205 (b) (2) .]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe; and such other and further relief to which Rowe is entitled under the law .
SIXTH AFFIRMATIVE DEFENSE : SECTION 33 (c) CRITERIA
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741 .205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 0) of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act . The respondent raising a defense
set forth in Section 22 .2 0) or a limitation set forth in Section 58 .9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence."
[35 III . Admin. Code §741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that results from the alleged release or substantial threat of a
release of hazardous substances on, in, under or from a site, as those terms are used in
Section 741 .205 (b) (2) of the Board's Proportionate Share Liability Regulations . [35 III.
Admin . Code §741 .205 (b) (2).] Therefore, this "citizen's suit" is subject to all defenses
20
allowed by law, including the defenses set forth in Section 33 (c) of the Act
. [415 ILCS
5/33 (c) .]
3.
Under Section 33 (c) of the Act, in making its order and determinations,
the Board shall take into consideration all the facts and circumstances bearing upon the
reasonableness of the emissions, discharges and deposits involved, including, but not
limited to :
i.
the character and degree of injury to, of interference with the protection of
the health, general welfare and physical property of the people ;
ii.
the social and economic value of the pollution source ;
iii .
the suitability or unsuitability of the pollution source in the area in which it
is located, including the priority of location in the area involved
;
iv .
the technical practicability and economic reasonableness of reducing or
eliminating the emissions, discharges, deposits resulting from such pollution source ;
and
v.
any subsequent compliance .
[415 ILCS 5/33 (c) .]
4.
Under Title XVII of the Act, the Board and/or the IEPA have established a
set of standards for contaminants in the soils of the State of Illinois that are permissible
if the site in question is to be used for "commercial/industrial purposes" . These
regulations are commonly referred to as the Tiered Approach To Corrective Action
Objectives or "TACO" Regulations . [415 ILCS 5/58 .11 & 35 III . Admin . Code Part 742 .]
5 .
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
21
are permissible if the site in question is to be used such that any "engineered barriers"
to exposure to said contamination will not be disturbed
. [415 ILCS 5/58 .11 & 35 III
.
Admin
. Code Part 742 .]
6 .
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
are permissible if the site in question is located in a community that has an ordinance
outlawing the use of groundwater for potable purposes
. [415 ILCS 5/58 .11 & 35 III .
Admin
. Code Part 742 .]
7.
On information and belief, at all times relevant the Property has been
located in the center of a large commercial/industrial complex and it is surrounded by
numerous facilities that are used primarily for commercial/industrial purposes
. At all
times relevant, the Village of River Grove has had in effect a zoning ordinance whereby
the entire area where the Property is located is zoned for commercial/industrial
purposes.
8 .
On information and belief, at all relevant times the hazardous substances
Cole Taylor alleges to have found in the soils at the Property and for which it seeks to
hold Rowe liable to remediate were processed, stored or otherwise used by the
manufacturing and other businesses located on the various parcels of real estate
adjoining or near the Property
. At all relevant times these other businesses were owned
and/or operated by third parties over whom Rowe had no control and for whose acts it
cannot be held responsible .
22
9.
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property.
10 .
On or about January 31, 2001, the lease terminated and the Property was
vacated. On information and belief, from that point forward and until they leased the
Property to an unaffiliated third party in May of 2001, the Property was under the
exclusive possession and control of Cole Taylor and the Property's beneficial owners .
11 .
On information and belief, although they knew of the alleged existence of
hazardous substances on the Property, from the time they took exclusive possession
and control of the Property until the present neither Cole Taylor nor the beneficial
owners of the Property have made any effort to remove or otherwise remediate this
alleged contamination .
12 .
On information and belief, in about May 2001, Cole Taylor and the
beneficial owners of the Property leased the Property to an unaffiliated third party,
whereby that third party is allowed to use the Property for commercial/industrial
purposes for a period of up to 10 years. On information and belief, the third party tenant
intends to use the Property for commercial/industrial purposes during the period of the
lease .
13.
On information and belief, at all times relevant there have existed on the
Property structures that act as engineered barriers to exposure to the alleged
contamination at the Property . On information and belief, the third party tenant does not
intend to remove or disturb these structures during his/her occupation and use of the
Property.
23
14 .
On information and belief, at all relevant times the Village of River Grove
has had an ordinance in effect that outlaws the use of groundwater for potable
purposes.
15.
On information and belief, the third party tenant is aware of the allegations
of contamination at the Property . Yet, he/she has occupied the Property without any
remediation of the alleged contamination at the Property that Cole Taylor claims herein
is necessary .
16 .
On information and belief, if the Board finds that the alleged contamination
at the Property does exist, at all times relevant said contamination has never exceeded
the Board's standards for commercial/industrial use. Nor has it ever exceeded the
Board's standards that are applicable if engineered barriers remain in place
. Nor has it
ever exceeded those standards that are applicable because the Village of River Grove
has an ordinance outlawing the use of groundwater for potable purposes
.
17 .
If the Board finds that the alleged contamination does exist at the
Property, then at all times relevant said contamination has constituted a reasonable
emission, discharge and/or deposit as set forth in Section 33 (c) of the Act :
i .
there has been no injury to, or interference with, the protection of the
health, general welfare and physical property of the people ;
ii .
the alleged pollution source has social and economic value ;
iii .
the alleged pollution source is suitable to the area in which it is located,
including the question of priority of location in the area involved ;
24
iv.
it is technically impractical and economically unreasonable to reduce or
eliminate the alleged emissions, discharges or deposits resulting from the alleged
pollution source; and
v.
any alleged non-compliance is due exclusively to the acts or omissions of
Cole Taylor, the beneficial owners and/or unaffiliated third parties and not Rowe.
18 .
Under Section 33 (c) of the Act, as incorporated by Section 741 .205 (b) (2)
of the Board's Proportionate Share Liability Regulations, this "citizen's suit" is barred .
[415 ILCS 5/22.2 0) (2) & 35 III . Admin . Code § 741 .205 (b) (2) .]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor ; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe ; and such other and further relief to which Rowe is entitled under the law .
SEVENTH AFFIRMATIVE DEFENSE : ARBITRARY AND UNREASONABLE
HARDSHIP UNDER SECTION 31 (e) OF THE ACT
In the alternative, without admitting any of the Complaint's allegations that it has
denied or otherwise contradicting its answers and solely by way of affirmative and/or
additional defense, Rowe alleges as follows :
1 .
Section 741 .205 (b) (2) of the Board's Proportionate Share Liability
Regulations provides that :
"Liability to perform or pay for the response that results from the release or
substantial threat of a release of [hazardous substances] on, in, under or
from a site is subject to all defenses allowed by law, including the
defenses set forth in Section 22 .2 0) of the Act, and the limitations set
forth in Section 58.9 (a) (2) of the Act . The respondent raising a defense
set forth in Section 22 .2 0) or a limitation set forth in Section 58 .9 (a) (2) of
the Act must prove the defense or limitation by a preponderance of the
evidence ."
25
[35 III. Admin . Code §741 .205 (b) (2) .]
2 .
In the "citizen's suit" brought herein, Cole Taylor seeks to have Rowe
perform a response that allegedly results from the alleged release or substantial threat
of a release of hazardous substances on, in, under or from a site, as those terms are
used in Section 741 .205 (b) (2) of the Board's Proportionate Share Liability Regulations .
[35 III . Admin. Code §741 .205 (b) (2) .] Therefore, this "citizen's suit" is subject to all
defenses allowed by law, including the defenses set forth in Section 33 (e) of the Act .
[415 ILCS 5/33 (c).]
3 .
Under Section 33 (e) of the Act, in determining liability for alleged
violations Act and Board regulations, the Board shall take into consideration whether
compliance with the Act and the Board's regulations would impose an arbitrary or
unreasonable hardship on the respondent . [415 ILCS 5/33 (e)]
4 .
Under Title XVII of the Act, the Board and/or the IEPA have established a
set of standards for contaminants in the soils of the State of Illinois that are permissible
if the site in question is to be used for "commercial/industrial purposes". These
regulations are commonly referred to as the Tiered Approach To Corrective Action
Objectives or "TACO" Regulations. [415 ILCS 5/58 .11 & 35 III . Admin . Code Part 742 .]
5.
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
are permissible if the site in question is to be used such a manner that any "engineered
barriers" to exposure to said contamination will not be disturbed . [415 ILCS 5/58
.11 &
35 III. Admin . Code Part 742
.]
26
6 .
As part of the TACO Regulations, the Board and/or the IEPA have also
established a set of standards for contaminants in the soils of the State of Illinois that
are permissible if the site in question is located in a community that has an ordinance
outlawing the use of groundwater for potable purposes . [415 ILCS 5/58 .11 & 35 III .
Admin . Code Part 742 .]
7 .
On information and belief, at all times relevant the Property has been
located in the center of a large commercial/industrial complex and it is surrounded by
numerous facilities that are used primarily for commercial/industrial purposes
. On
information and belief, at all times relevant, the Village of River Grove has had in effect
a zoning ordinance whereby the entire area where the Property is located is zoned for
commercial/industrial purposes .
8 .
On information and belief, at all relevant times the hazardous substances
Cole Taylor alleges to have found in the soils at the Property and for which it seeks to
hold Rowe liable to remediate were processed, stored or otherwise used by the
manufacturing and other businesses located on the various parcels of real estate
adjoining or near the Property . At all relevant times these other businesses were owned
and/or operated by third parties over whom Rowe had no control and for whose acts it
cannot be held responsible .
9.
At no time did Coleman or Rowe cause, allow or contribute in any way to
the presence of the hazardous substances Cole Taylor claims to have found at the
Property.
10.
On or about January 31, 2001, the lease terminated and the Property was
vacated. From that point forward, on information and belief, until they leased the
27
Property to an unaffiliated third party in May of 2001, the Property was under the
exclusive dominion and control of Cole Taylor and the Property's beneficial owners .
11 .
On information and belief, in about May 2001, Cole Taylor and the
beneficial owners of the Property leased the Property to an unaffiliated third party,
whereby that third party is allowed to use the Property for commercial/industrial
purposes for a period of up to 10 years . On information and belief, the third party tenant
intends to use the Property for commercial/industrial purposes during the period of the
lease.
12 .
On information and belief, at all times relevant there have existed on the
Property structures that act as engineered barriers to exposure to the alleged
contamination at the Property . On information and belief, the third party tenant does not
intend to remove or disturb these structures during his/her occupation and use of the
Property.
13 .
On information and belief, at all times relevant the Village of River Grove
has had an ordinance in effect that outlaws the use of groundwater for potable
purposes.
14.
On information and belief, the third party tenant is aware of the allegations
of contamination at the Property . Yet, he/she has occupied the Property without any
remediation of the alleged contamination at the Property that Cole Taylor claims herein
is necessary.
15. On information and belief, if the Board finds that the alleged contamination
at the Property does exist, at all times relevant said contamination has never exceeded
the Board's standards for commercial/industrial use
. Nor has it ever exceeded the
28
Board's standards if engineered barriers remain in place
. Nor has it ever exceeded
those standards that are applicable because the Village of River Grove has an
ordinance outlawing the use of groundwater for potable purposes .
16.
If the Board finds that the alleged contamination does exist at the
Property, then at all times relevant removal of some or all of said contamination in order
to comply with any TACO standard more stringent than that related to commercial/use,
taking into consideration engineered barriers and other institutional controls, including a
local groundwater ordinance such as the Village of River Grove has in effect, would
impose an arbitrary or unreasonable hardship on Rowe .
17 .
Under Section 33 (e) of the Act, as incorporated by Section 741
.205 (b)
(2) of the Board's Proportionate Share Liability Regulations, this "citizen's suit" is barred .
[415 ILCS 5/33 (e) & 35 III . Admin . Code § 741 .205 (b) (2).]
Wherefore, Rowe asks that the Board render a judgment in its favor and against
Cole Taylor; and that the Board enter an order that Cole Taylor be awarded nothing as
against Rowe and denying Cole Taylor any and all of the relief it seeks herein against
Rowe; and such other and further relief to which Rowe is entitled under the law .
Rowe Industries, Inc .,
A Delaware Corporation,
Respondent
William A. Speary, Jr .
Much Shelist Freed Denenberg Ament & Rubenstein
200 North La Salle St ., Suite 2100
Chicago, IL 60601-109
(312) 621-1753
ID # 80580
ARDC # 6189961
29
//
of its Attorneys
Exhib 'i A
Attorney No . 90700
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOTS
COUNTY DEPARTMENT -
LAW DIVISION
COLE TAYLOR BANK, not individually,
but solely as trustee under a certain Illinois
land trust known as trust 40323 ; as
successor trustee to Michigan Avenue
National Bank of Chicago, under trust 1904,
Plaintiff,
vs .
ROWE INDUSTRIES, INC
., a corporation,
successor to COLEMAN CABLE AND WIRE
COMPANY, a corporation, and CHAPCO
CARTON COMPANY, a corporation,
Defendants .
COMPLAINT AT LAW
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee under a certain Illinois
land trust known as trust 40323
; as successor trustee to Michigan Avenue National Bank of
Chicago, `under trust 1904
; complains against the defendants Rowe Industries, Inc
., a
corporation, successor to Coleman Cable and Wire Company, a corporation, and Chapco Carton
Company, a corporation, and in support of its complaint states
:
1 .
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee under a certain
Illinois land trust known as trust 40323, as successor trustee to Michigan Avenue National Bank
of Chicago, under trust 1904 (hereafter "Michigan Avenue") is an Illinois land trust holding
legal title to certain real property located in Cook County, Illinois, commonly known as 1810
North Fifth Avenue, River Grove, Illinois .
N
NO.
971
.04984
e_
RLEt-4DhiF
. l
..I
,T~.
2 .
Defendant, Rowe Industries, Inc
., (hereafter "Rowe") successor to Coleman Cable
and Wire Company (hereafter "Coleman") is a corporation organized under the laws of
Delaware
. Plaintiff is informed and believes, and upon such information and belief alleges that
Rowe has its principal place of business in Phoenix, Arizona .
3 .
Defendant, Chapco Carton Company (hereafter "Chapco") is a corporation
organized under the laws of Delaware, having its principal place of business in River Grove,
Cook County, Illinois
.
ALLEGATIONS COMMON TO ALL COUNTS
4 .
On May 21, 1971 Coleman, as lessee, entered into a written lease with Michigan
Avenue as lessor, for the rental of certain property commonly known as 1810 North Fifth
Avenue, River Grove, Illinois, (hereafter the "real estate") which lease terminated on December
31, 1996
. A copy of that lease is attached hereto as Exhibit 1
.
5 .
Plaintiff is informed and believes, and upon such information and belief alleges
that in 1984 Coleman, as sublessor, entered into a sub-lease agreement with Chapco as sub-
lessee .
Chapco remained in possession of the aforesaid rental real estate from 1984 as
Coleman's sub-lessee until December 31, 1996, the date of expiration of Coleman's lease
.
6.
At no time during the term of its lease with plaintiff was Coleman released by
plaintiff from any of Coleman's obligations under the lease aforesaid
.
7.
At various times between 1971 and the date of the filing of this Complaint, the
exact dates of which are at present unknown to plaintiff, and during the time that the real estate
was in the possession and control of Coleman and/or Chapco, either or both of Coleman and/or
Chapco, knowingly caused or negligently permitted and allowed certain hazardous materials
2
containing, among
other hazardous substances,
significant concentrations of cadmium,
ethylbenzene, toluene, xylene chromium and lead, to become deposited in the soil at the real
estate.
8 .
As a direct and proximate result of the actions of Coleman and Chapco, the real
estate has been significantly damaged, and plaintiff will be forced to spend large amounts of
money to remediate the real estate
.
COUNT I
BREACH OF CONTRACT
9 .
Section 601 of the lease between Coleman and plaintiff provides :
"USE .
Section 601
. The demised premises shall be used for any
business or purpose permitted by present zoning classifications, or
as the said demised premises may be rezoned from time to time
hereafter
. Lessee shall not use or occupy the demised premises or
permit the demised premises to be used or occupied contrary to
any statute, rule, order, ordinance,
requirement or regulation
applicable thereto, or in any manner which would violate any
Certificate of Occupancy affecting the same, or which would cause
structural iniury
to the improvements or cause the value or
usefulness of the demised premises or any part thereof to diminish
or which would constitute a public or private nuisance or waste,
and Lessee agrees that it will promptly upon discovery of any such
use, take all necessary steps to compel the discontinuance of such
use and to oust the subtenants or occupants guilty of such use
."
(underlining supplied)
10.
Section 701 of the lease between Coleman and plaintiff provides
:
Section 701 .
After the completion of the building by
Lessor, Lessee agrees, at its expense, to keep the demised
premises in good repair and in a clean and wholesome condition
and to at all times full com I
with the health and
olice
regulations in force and also that it will keep the improvements at
any time situated upon the demised premises and all sidewalks and
3
areas and adjacent thereto as well as in the area thereof, safe and
secure and conformable to the lawful and valid requirements of
any municipality in which said demised premises may be situated
and
of all other public authorities, and will make at its own
expense, all additions, improvements, alterations and repairs on the
demised premises and on and to the appurtenances and equipment
thereof required by any lawful authorities
or which may be made
necessary by the act or neglect of any other person
or corporation
(public or private), including supporting the streets and alleys
adjoining the demised premises,
and will keep Lessor harmless and
indemnified at all times against any loss, damage, cost or expense
by reason of the failure so to do in any respect or by reason of any
accident, loss or damage resulting to persons or property from any
use which may be made of said premises
or of any improvements
at any time situated thereon or by reason of
or growing out of any
act or thing done or omitted to be done upon said premises or in
any building at any time situated thereon
; and Lessee agrees that
it will save, hold and keep Lessor and the demised premises free
and clear of and from any and all claims, demands, penalties,
liabilities, judgments, costs and expense, including reasonable
attorneys' fees, arising out of any damage which may be sustained
by adjoining property or adjoining owners or other persons or
property in connection with any remodeling, altering or repairing
of any building or buildings on the demised premises or the
erection of any new building or buildings thereon, unless such
action is underaken by Lessor pursuant to its obligations under this
Lease ." (underlining supplied)
11 .
At all relevant times there were in full force and effect a statute of the State of
Illinois known as the Environmental Protection Act 415 ILCS 5/1
et. seq . (the "Act")
prohibiting the disposal of waste except as specifically permitted therein, a relevant portion
thereof which in words and figures is as follows :
No person shall . .
.[d]ispose, treat, store or abandon any waste, or
transport any waste into this State for disposal treatment, storage
or abandonment, except as a site or facility which meets the
requirements of this Act and of regulations and standards
thereunder .
415 ILCS 5/21(e) .
4
12
.
The real estate does not meet the requirements of a waste disposal site or facility
under the Act and applicable Illinois Pollution Control Board regulations
.
13 .
By causing or allowing the contamination of soil at the real estate with hazardous
substances, the defendants have engaged in the disposal of waste at the real estate in violation
of Section 21(e) of the Act .
14 .
The acts complained of herein that were done, suffered or permitted to be done
by defendant constitute a violation and breach of the terms of Sections 601 and 701 of the lease
attached as Exhibit 1 .
15 .
As a result of the breaches of the lease aforesaid, plaintiff has been injured and
the value of its property diminished by the sum of Two Hundred Fifty Thousand Dollars
($250,000.00)
.
WHEREFORE, plaintiff prays for judgment against defendant Rowe Industries, Inc
.,
individually and as successor to Coleman Cable and Wire Company, in the sum of Two Hundred
Fifty Thousand Dollars ($250,000
.00) .
COUNT
II
NEGLIGENCE AGAINST COLEMAN AND CHAPCO
16-23
. Plaintiff repeats and realleges the allegations contained in paragraph 1 through
8 inclusive as and for its allegations in paragraphs 16 to 23 inclusive in this Count II
.
24.
Plaintiff repeats and realleges the allegations contained in paragraph 12 as and for
its allegations in paragraph 24 of this Count II .
25 .
At all relevant times plaintiff was in the exercise of due care and caution for itself
and for others .
5
26 .
The acts of defendant Coleman and Chapco were in violation of the statute
aforesaid, negligent and in disregard of the rights of plaintiff and of the general public and
caused harm to plaintiff and its real property
.
WHEREFORE, plaintiff prays for judgment for compensatory damages against
defendants Rowe Industries, Inc
., individually and as successor to Coleman Cable and Wire
Company, and Chapco Carton Company, jointly and severally in the sum of Two Hundred Fifty
Thousand Dollars ($250,000
.00) .
COLE TAYLOR BANK, not individually, but solely
as trustee under a certain Illinois land trust known
as trust 40323 ; and as successor trustee to Michigan
Avenue National Bank of Chicago, under trust 1904
Dated : April 29, 1997
GERALD B
. MULLIN
JOSEPH R. PODLEWSKI, JR .
Rosenthal and Schanfield
55 East Monroe Street
46th Floor
Chicago, Illinois 60603
(312) 236-5622
6
One of its Attorneys
ff
,
EXHIBIT A
LEASE
THIS
INDENTURE, made May 21,
1971, between Michigan
Avenue National Bank of Chicago, as Trustee under Trust ,1904,
dated May 1, 1971 (hereinafter sometimes referred to as Les-
sor)
,
and Coleman Cable & Wire Company, a Delaware corporation
(hereinafter sometimes referred to as Lessee)
; wherein the
parties covenant and agree as follows
:
CONSIDERATION AND
PROPERTY .
Section 101
. Lessor, for and in consideration of
the rents herein reserved and of the covenants and agreements
herein contained on the part of the Lessee to be kept, ob-
served and performed, does by these presents, demise and lease
to Lessee and Lessee hereby hires and lets from Lessor the
real estate and all improvements now located thereon or pro-
vided to be constructed thereon, as particularly described
and set forth in SCHEDULE A attached hereto . Said real es-
tate and improvements are sometimes hereinafter referred to
as "demised premises ."
TERM OF LEASE .
Section 201 . The term of this Lease shall commence
upon the dates and under the circumstances provided for in the
attached SCHEDULE B and the term as so fixed is sometimes here-
inafter referred to as "original term ."
CONSTRUCTION OF I ;PROVCMENTS .
Section 301 . Lessor agrees to construct on the de-
mised premises a structure and improvements in accordance w :with
the provisio-s contained in SCHEDULE A attached
.
C
Section
302 . Lessor
shall obtain all
necessary
per-
nits
at
its
expense, shall
diligently proceed
with such_con-
struction and shall
complete the same and shall
deliver pos-
session thereof
to Lessee in accordance with the provisions
set forth in said SCHEDULE A
.
RENTAL .
Section 401
. In consideration of the leasing, Les-
see aforesaid agrees to pay Lessor rent as specified and pro-
vided in SCHEDULE C attached hereto
.
TAXES AND ASSESSMENTS .
Section 501
. Lessee further agrees to pay as addi-
tional rent for the demised premises, all taxes and assess-
ments, general and special, water rates, utilities and all
other impositions, ordinary and extraordinary, of every kind
and nature whatsoever, which may be levied, assessed or in-
posed upon the demised premises or any part thereof or upon
any building or improvements at any time situated thereon, ac-
cruing or becoming due and payable during the term of this
Lease and any extension thereof (such matters being sometimes
referred to herein as "impositions") , provided, however, that
the general taxes levied against the demised premises shall
be prorated between Lessor and Lessee as of the date of com-
mencement of the term hereof for the first year of the term
for the last year of the term hereof and any extensions there-
of, all on the basis of the then last available tax bills .
Benefit may be taken by Lessee of the provisions of any stat-
ute or ordinance permitting any
assessment to be paid over a
period of years .
-2-
Section 502 . Nothing herein contained shall
be con-
strued to recuire Lessee to pay any capital levy,
excise,
franchise, inheritance, estate, succession or transfer tax
of Lessor or any income or excess profits tax assessed upon
or in
respect of any
income of
Lessor or chargeable to or re-
quired to be paid by Lessor unless such tax shall be specifi-
cally levied against the income of Lessor derived from the
rent by this Lease reserved, expressly and as and for a speci-
fic substitute for the real estate taxes, in whole or in part,
upon the demised premises or the improvements situated thereon
in which event said rent shall be considered as though it were
the sole income of Lessor .
Section 503 . Lessee further agrees to deliver to
Lessor, duplicate receipts or photostatic copies thereof show-
ing the pay snt of all said taxes, assessments, and other
im..-
positions, within thirty (30) days after the respective pay-
ments evidenced thereby .
Section 504 . Lessor shall, at its option, have the
right at all times during the term hereof to pay any imposi-
tions not paid by Lessee, and the amounts so paid, including
reasonable expenses, shall be so much additional rent due at
the next rent date after any such payments, with interest at
the rate of ten per cent (10%) per annum from the date of pay-
ment thereof .
Section 505
. Lessee may contest the amount or va-
lidity of any imposition by appropriate proceedings at
see's cost and expense and, notwithstanding the proviztor
. :
-3-
of
section 501, the Lessee may postpone
or defer payment of
any
such imposition
if
the
Lessee shall have deposited with
Lessor or such bank or trust company as Lessor may in writ-
ing direct, the amount so contested and unpaid, plus inter-
est and penalties thereon and all charges that may or might
be assessed against or become a charge on the demised premi-
ses in said proceedings, unless the demised premises or any
part thereof be, by reason of such deferment, in imminent
danger of being forfeited or lost
. Upon the termination of
such proceedings, Lessee shall pay the amount of such imposi-
tion, or part thereof as finally determined, together with
any costs, fees, interest, penalties or other liability in
connection therewith, and upon such payment Lessor shall re-
turn or cause to be returned to the Lessee the amount depos-
ited as aforesaid, without interest- If at any time during
the continuance of such proceedings the amount deposited as
aforesaid shall be less than such unpaid imposition plus pen-
alties, costs and interest, Lessee shall, upon dimand, depos-
it an additional sum equal to such deficiency, and upon fail-
ure of Lessee so to do, the amount theretofore deposited nay
be applied by Lessor to the payment of such imposition, and
interest and penalties in connection therewith, and any costs,
fees or other liability accruing in any such proceedings
. Les-
sor shall not be required to join in any such proceedings, un-
less law shall require that such proceedings be brought by or
in the name of the owner of the demised premises, in which
event Lessor shall join in such proceedings or permit the
-4-
C
sae
to be brought in Lessor's name, but
shall not be sub-
ject to any liability in connection with any such proceedings,
and Lessee shall indemnify and save harmless Lessor from such
liability . Lessee shall be entitled promptly to all refunds
with respect to any imposition paid by it .
USE
.
Section 601
. The demised premises shall be used
for any business or purpose permitted by present zoning clas-
sifications, or as the said demised premises may be rezoned
from time to time hereafter
. Lessee shall not use or occupy
the demised premises or permit the demised premises to be
used or occupied contrary to any statute, rule, order, ordi-
nance, requirement or regulation applicable thereto, or in
any manner which would violate any Certificate of Occupancy
affecting the same, or which would cause structural injury
to the improvements or cause the value or usefulness of the
demised premises or any part thereof to diminish br which
would constitute a public or private nuisance or waste, and
Lessee agrees that it will promptly upon discovery of any
such use, take all necessary steps to compel the discontinu-
ance of such use and to oust the subtenants or occupants
guilty of such use .
MAINTENANCE OF PREMISES .
Section 701
. After the completion of the building
by Lessor, Lessee agrees, at its expense, to keep the demised
prc.^.eses
in good repair and in a clean and wholcsons co
t i-
tion and to at all times fully co-.ply
with all health and no-
-5-
C
lice regulations in force and also that it will
keep the
im-
provements
at any
time situated upon the demised
premises
and
all sidewalks and
areas adjacent thereto, as
well as
in the
area thereof, safe and secure and conformable
to the
lawful
and valid requirements of any municipality
in which said de-
mised premises may be situated and of all other
public auth-
orities, and will make, at its own expense, all additions,
improvements, alterations and repairs on the demised premises
and on and to the appurtenances and equipment thereof required
by any lawful authorities or which may be made necessary by
the act or neglect of any other person or corporation (public
or private), including supporting the streets and alleys ad-
joining the demised premises, and will keep Lessor harmless
and indemnified at all times against any loss, damage, cost
or expense by reason of the failure so to do in any respect
or by reason of any accident, loss or damage resulting to per-
sons or property from any use which may be made of said prem-
ises or of any improvements at any time situated thereon or
by reason of or growing out of any act or thing done or omit-
ted to be done upon said premises or in any building at any
time situated thereon
; and Lessee agrees that it will save,
hold and keep Lessor and the demised premises free and clear
of and from any and all claims, demands, penalties, liabili-
ties, judgments, costs and expenses, including reasonable
torneys' fees, arising out of any damage which may be sus-
tained by adjoining property or adjoining owners or other
persons or property in connection with any remodeling, alter-
ing
or repairing
of
any building or buildings
on
the demised
pranises
or
erection
of any new building
or
buildings
thereon, unless such
action is underta':en
by
Lessor pursuant
to its obligations
under
this
Lease
.
Section 7C2
. Section 701
shall not apply
to any
obligation
or liability arising in
connection with Lessor's
duty to construct, repair, or reconstruct the building and
improvements pursuant to the terms of this Lease
.
INSURANCE COVERAGE
.
Section 801
. Lessee further agrees that it will at
all times during the term hereof, at its own cost and expense,
carry and maintain, for the mutual benefit of Lessor and Les-
see, such policy or policies of insurance with companies rea-
sonably satisfactory to Lessor and in such amounts as are set
forth and provided in SCHEDULE D attached hereto
. All such
policies shall provide that the same may not be cancelled or
altered except upon ten (10) days' prior written notice to
Lessor .
Section 802 . In case any action or proceeding shall
be commenced against Lessor growing out of any casualty loss,
cost, damage or expense (other than matters arising in connec-
tion with Lessor's construction or restoration of the building
and improvements as provided herein)
,
Lessor may give written
notice of the same to Lessee and thereafter Lessee shall as-
sume
and discharge all obligations to defend the same and save
and keep Lessor harmless from all expenses, counsel fees,
costs, liabilities, judgments and executions in any manner
growing out of, pertaining to or connected therewith .
-7-
I
as insureds thereunder, and shall provide that losses
shall
be
paid to said insureds as their respective interest
may
appear
.
At the request of Lessor, a mortgage
clause nay
be
included in said policies
covering Lessor's mortgagee .
Said policies shall contain a waiver by the insurance company
of recourse against Lessee and its agents because of any act
or negligence of Lessee and shall further provide that the
same shall not be cancelled or altered except upon ten (10)
days' prior written notice to Lessor and to mortgagee
. The
original of such policies shall be deposited with the mort-
gagee and a duplicate shall be deposited with Lessor .
Section 806 . Not less frequently than once in each
five (5) years after the commencement of the tern hereof, Les-
see shall furnish, at its expense, to Lessor, insurance ap-
praisals such as are regularly and ordinarily made by insur-
ance companies, if procurable for such purpose, in order to
determine the then insurable value of the building or build-
ings and improvements on the demised premises .
Section 807
. It is further agreed that, in the
event of loss under any such policy or policies, Lessee may
elect to have the insurance proceeds paid to a corporate trus-
tee selected by Lessor from among the five largest Chicago
banks, to be held for the benefit of Lessor and Lessee, and
to be paid to the Lessor by said trustee upon presentment of
architects' or engineers' certificates for the expense of re-
pairing or robuilding the buildings or improvements which have
been damaged or destroyed
. Upon the completion of said __-
-9-
pairs
or rebuilding,
free from.
all liens of
mechanics
and
matarialnen and others, any sur?lus of insurance money shall be
paid
to Lessor . The fees and expenses of the corporate trus-
tee shall be paid by Lessee .
Section 808 . Lessee further agrees that, at Les-
sor's written request, and provided such insurance is obtain-
able from an agency of the United States Government, if and
when obtainable, it will procure and maintain so-called war
risk and war damage insurance on the improvements located
upon the demised premises for not less than ninety per cent
(90%) of their full insurance value above foundation
. Such
insurance shall provide for payment of loss thereunder to
Lessor and Lessee, as their interests may appear, and shall
at Lessor's request, contain a mortgage clause in favor of
Lessor's mortgagee, and the policies or certificates evi-
dencing such insurance shall be delivered to Lessor within
sixty (60) days after demand, and renewals thereof shall be
delivered to Lessor at least ten (10) days prior to the ex-
piration date of the respective policies . The provisions of
Section 807 of this Lease shall apply with respect to any
loss payable under any such policy or policies of insurance .
DAI-!AGE OR DESTRUCTION
.
Section 901
. Lessor further agrees that in case
of damage to or destruction of any building or improvements
on the demised premises or of the fixtures and equipment there-
in, by fire or other casualty, it will promptly, at its ex-
pense, repair, restore, or rebuild the same to the extent
-10-
that it shall
deem
necessary or
desirable in
connection with
the
requirements
of Lessee's business, provided that,_uDon
the completion of such repairs, restoration or rebuilding,
the value and rental value of the buildings and i .-:provements
upon the demised premises shall be substantially equal to the
value and rental value of the buildings and improvements
thereon immediately prior to the happening of such fire or
other casualty . Rent shall not abate during the period of
such repair, restoration or
rebuilding
irrespective of whether
the improvements are not tenantable because of such damage or
destruction .
Section 902 . Lessee may make such alterations to
the building as it may desire during the tern of this Lease .
Before commencing alterations involving an estimated cost of
more than $25,000, (a) plans and specifications therefor,
prepared by a reputable licensed architect or engineer,
shall have been submitted to and approved by Lessor, (b) Les-
see shall have furnished to Lessor, an estimate Of the cost
of the proposed work, certified to by the architect or en-
gineer by whom such plans and specifications shall have been
prepared
; and (c) Lessee shall either have furnished to Les-
sor a bond on which
Lessee shall be principal, and a surety
company, authorized to do business in the state where the de-
mised premises are located, satisfactory to Lessor, shall be
surety, and which
bond shall be in form satisfactory to Les-
sor, conditioned upon the completion of and payment in full
for
such worft within a reasonable time, subject,
however,
to
delays occasioned by strikes, lockouts, acts of God, govern-
rental restrictions or similar causes beyond the control of
Lessee, or other security satisfactory to Lessor to insure
payment for the completion of all work free and clear of liens
.
Section 903
. If, during the last two years of the
original term, or during the renewal term, the building on
the demised premises is so damaged by fire or other casualty
as to render it untenantable in its entirety, Lessee may elect
to terminate this Lease upon notice to the Lessor given not
later than sixty days following the occurrence of such casu-
alty . This Lease shall terminate upon the giving of such
notice, and all payments due the Lessor shall be prorated to
that date . If this Lease is so terminated, Lessor shall have
no obligation to rebuild the buildings, and shall be entitled
to the full amount of the insurance proceeds, if any .
LIENS
.
Section 1001 . Lessee shall not do any'act which
shall in any way encumber the title of Lessor in and to said
demised premises, nor shall the interest or estate of Lessor
in said demised premises be in any way subject to any claim
by way of lien or encumbrance, whether by operation of law
or by virtue of any express or implied contract by Lessee,
and any clairm to or lien upon said demised premises arising
from any act or omission of Lessee shall accrue only against
the leasehold estate of Lessee and shall in all respects be
subject and subordinate to the paramount title and rights of
Lessor in and
to said
premises
and the
buildings and
inorove-
rents
thereon
.
Lessee will not permit the demised premises
to become subject to any mechanics', laborers' or material-
men's lien of record on account of labor or material furnished
to Lessee or claimed to have been
furnished
to Lessee in con-
nection with work of any character performed or claimed to
have been performed on the demised premises by or at the di-
rection or sufferance of Lessee
. Lessee may contest the va-
lidity of any such lien or claimed lien at Lessee's cost, and
thereby defer payment thereof, if Lessee shall have deposited
with Lessor or such bank or trust company as Lessor may di-
rect, the amount so contested and unpaid
. Upon the termina-
tion of such proceedings, Lessee shall pay the amount of any
judgment rendered, with all proper costs and charges, and
will, at its expense, have the lien released and any judg-
ment satisfied, whereupon Lessor shall return or cause to be
returned to Lessee the amount deposited as aforesaid, without
interest .
Section 1002 . In case Lessee shall fail to contest
the validity of any such lien or claimed lien referred to in
section 1001 hereof and give security to Lessor to insure pay-
ment thereof, or having commenced to contest the same and hav-
ing given such security, shall fail to prosecute such contnit
with diligence, or shall fail to have the same released and
satisfy any judgment rendered thereon, then Lessor may, ., •
its election (but shall not be required so to do) , rc-
.
.r
-13-
discharge
scch lien
or claim
for
lien
(with the
right,
in its
discretion, to settle
or compromise the same), and
any- amounts
advanced by Lessor for such purposes shall be so much addi-
tional rental due from Lessee to Lessor at the next rent date
after any such payment, with interest at the rate of ten per
cent (10%) per annum from the date of payment thereof
.
CONDEMNATION .
Section 1101
. If, during the tern of this Lease,
the entire demised premises shall be taken as a result of the
exercise of the power of eminent domain or a conveyance in lieu
thereof, this Lease shall terminate on the date of delivery of
possession to condemnor under such eminent domain proceedings
or conveyance in lieu thereof, and all rental and other sums
payable by Lessee hereunder shall be prorated to the date of
such delivery
. Notwithstanding any judicial allocation of
any award, the award is to be divided between Lessor and Les-
see in accordance with the value of their respective estates
in the demised premises, which shall be valued as of the date
of delivery to condemnor as if this Lease had not been ter-
minated
. For this purpose the value of Lessor's estate in
the demised premises shall be deemed to be an amount equal
to the sum of the commuted value of the rent for the remainder
of the term of this Lease and the commuted value of Lessor's
reversionary interest in the demised premises (but not less
than the then unpaid balance of Lessor's mortgage) , and the
value of Lossee's estate in the demised premises shall be
deemed to be an amount equal to the balance of the award .
-14-
Section 1102 . If thirty percent (30,) or more of
the usable floor area of the
building on the demised premises
shall be taken as a result of the exercise of the power of
eminent domain or a conveyance in lieu thereof, but less than
the entire demised premises, or if a part of the demised prem-
ises is taken which results in a physical separation of the
demised premises from the property contiguous thereto which
is owned by Lessee so as to prevent Lessee from gaining access
to the demised premises by travelling directly from its own
property, and either of these two stated contingencies occurs
within the last two years of the original tern or during any
extension thereof, Lessee may terminate this Lease by notice
in writing given not more than sixty (60) days after delivery
of possession in such proceeding, and shall specify a date
not more than sixty (60) days after the giving of such notice
as the date for such termination
. Upon the date specified in
such notice, this Lease shall terminate, and all rent and
other sums payable by Lessee shall be prorated to the date
of such termination
. Notwithstanding any judicial allocation
of the award, the award is to be allocated in the manner pro-
vided in section 1101 for a taking of the entire demised premise
Section 1103
. If less than thirty percent (3C%) of
the usable floor area of the building on the demised premises
shall be taken as a result of the exercise of the power of
eminent domain, or if thirty percent (30t) or more of the
usable floor area of the building is taken but Lessee does
not terminate this Lease as provided in section 1102, this
-15-
Lease
shall not terni^ate but shall
continue
in full force
and effect
for the remainder of the term of this Lease and
extensions (if any), subject to the provisions hereof
. Not-
withstanding any judicial allocation of the award, the award
is to be divided between Lessor and Lessee in accordance with
the damage to the value of their respective estates in the
demised premises, which shall be determined as of the date
of delivery of possession to condemnor . Rent shall abate
equitably
. For the purpose of this section 1103 the damage
to Lessor's estate in the demised premises shall be deemed to
be an amount equal to the sum of the commuted value of the
rent abated for the remainder of the stated term of this Lease
and the commuted value of Lessor's reversionary interest in
the demised premises, and the value of Lessee's estate in the
demised premises shall be deemed to be an amount equal to the
balance of the award
. Lessor shall promptly restore (except
for unavoidable delays) that portion of the building not so
taken to an economically useful and architecturally complete
unit of the same general character and condition (as nearly as
may be possible) as the building existing before such taking
.
Section-1104
. If all or any portion of the demised
premises shall be taken by the exercise of the right of emi-
nent domain for governmental occupancy for a limited period,
this Lease shall not terminate and Lessee shall continue to
perform and observe all of its obligations hereunder as though
such taking had not occurred except only to the extent that it
may be preventc:d
fron so doing by reason of such taking
. Les-
-16-
see, however,
shall
in no event be excused from
the
payment of
rent
and all other stns
and charges require.I to be paid
by Les-
see under
this
Lease . In the event of such
taking as in this
section referred to, Lessee shall
be entitled to receive the
entire count of any award made for such taking
(whether paid
by way of
damages,
rent or otheniise, provided,
however, where
the
award is not to
be
paid as
rent in substantially equal in-
stallments over the period of governmental occupancy, Lessor
may require Lessee to deposit all or a portion of the award
with Lessor which shall hold it in a separate bank account as
a trust fund for Lessee's benefit to be applied against rent
as it accrues hereunder) and Lessor hereby assigns such award
to Lessee, unless the period of governmental occupancy extends
beyond the termination of the term of this lease, in which
case the award shall be apportioned between Lessor and Les-
see at the time of such award and, in such apportionment, Les-
sor shall receive the full amount, if any, of any portion of
said award which represents the cost' of restoration at the
termination of any such governmental occupancy . Lessee, at
the termination of any such governmental occupancy, shall at
its sole cost and expense restore the building as nearly as
may be reasonably possible to the condition in which the same
was prior to such taking, ordinary wear excepted, but Lessee
shall not be required to do such restoration work if on or
prior to the date of such termination of governmental occu-
pancy, the term of this Lease shall have terminated or if
such date of termination of governmental occupancy shall co-
-17-
cur less than 2
years prior to the- termination
of the
term
. of
this Lease,
in which event Lessee shall be entitled to
'
;
the
proceeds of the award, except for any part thereof represent-
ing the cost of restoration .
Section 1105
. In applying the foregoing sections
1101-1104, the following provisions shall govern :
(a) In any proceeding Lessor shall be entitled to
collect the entire award from the condemnor, without deduc-
tion for any estate or interest of Lessee under this lease
.
Lessor shall hold the award when collected in a separate bank
account as a trust fund and shall turn over to Lessee its
share of the award in accordance with said sections if no
default then exists under this Lease .
(b) Whenever a determination is to be made as to
the fair market value of the demised premises and the build-
ing at any future time (as in determining the commuted value
of Lessor's reversionary interest in the demised premises and
the building) , such value shall be conclusively assumed to be
the same as the value at the time the determination is being
made .
(c) The discount rate to be used in determining
the commuted value at any time of future money payments or
of a reversionary interest in the demised premises or the
building shall be the average of the prime rates then t .• : :: ;
charged by the two largest banks in Chicago, Illinois (or
ninety (90) day unsecured loans to borrowers of the hi'
;:~
credit sta:r_'ing, plus one percent (1%) .
-18-
C
(d) Disputes
arising
under
sections
1101-1105 shall
be
determined by
_rbitrat_ion
pursuant
to section
3101 hereof .
RE ::TA3SC~,UT3
.
Section 1201
.
Except
as otherwise
specifically pro-
vided herein,
damage
to or destruction
of
any portion or
all
of the
buildings,
structures and fixtures upon the demised
premises, by fire, the elements or any other cause
whatso-
ever, whether with or without fault on the part of Lessee,
shall not terminate this Lease or entitle Lessee to surrender
the demised premises or entitle Lessee to any abatement of or
reduction in the rent payable, or otherwise affect the respec-
tive obligations of the parties hereto, any present or future
law to the contrary notwithstanding . If the then-existing use
of the demised premises should, at any time during the tern
of this Lease, be prohibited by law or ordinance or other gov-
ernmental regulation, or prevented by injunction, or if there
be any eviction by title paramount, this Lease shall not, ex-
cept as otherwise specifically provided herein, be thereby ter-
minated, nor shall Lessee be entitled by reason thereof to sur-
render the demised premises or to any abatement or reduction
in rent, nor shall the respective obligations of the parties
hereto be otherwise affected unless such eviction is due to
the act of Lessor or any person or persons claiming any inter-
est in the deraised premises by or under Lessor
.
ASSIGN INT BY LESSEE .
Section 1301
. Lessee shall not assign this Lease,
without the written consent of Lessor, which consent shall not
-15-
be
unreason_blywithheld
.
In
event of an
assignment un-
der
the provisions hereof, Lessee shall require the
writteni
acceptance o` this Lease
by
suc- assignee and
the assignee's
agreement
to be bound
under the
terms
thereof . In such event,
Lessee
shall thereafter
be
secondarily
liable hereunder .
Lessee
shall have the
unrestricted
right
to sublet, subject,
however, to Lessee's obligations under this Lease, but
no such
subletting shall relieve Lessee of said obligations .
Section 1302 . Lessee may, without Lessor's consent,
assign this Lease to any corporation in connection with a mer-
ger or consolidation, provided that the total assets and net
worth of such assignee after such transaction shall be more
than that of Lessee immediately prior to such transaction,
and provided that Lessee is not at such tine in default here-
under, and provided further that such successor shall execute
an instrument in writing fully assuming all of the obligations
and liabilities imposed upon Lessee hereunder and deliver the
same to Lessor
; whereupon Lessee shall be dis-charged from any
further liability hereunder .
Section 1303 . Lessee shall not allow or permit any
transfer of this Lease, or any interest hereunder, by operation
of law, or convey, mortgage, pledge, or encumber this Lease or
any interest hereunder, except as provided herein
.
ANNUALSTATE!;---
:
:TS.
Section 1401
. Lessee further agrees to furnish Les-
sor annually ld1hin ninety (90) days of the end of each fiscal
year, with a copy of its annual audited statement, and agrees
that Lessor ^ay deliver such state.-
..ents to its mortgagee
.
-20-
INn: mil^_Y FCR
LITIGATION .
Section 1501
. Lessee further agrees to pay all cost-
and expenses, including attorneys' fees, which may be incurred
by or imposed on Lessor in any litigation relating to Lessee's
use or occupancy of the demised premises to which Lessor, with-
out fault on its Dart, may be made a party, and if paid by
Lessor, shall be so much additional rent due on the next rent
date after such payment together with interest at ten per cent
(101) per annum from the date of payment
.
ESTOPPEL CERTIFICATE BY LESSEE .
Section 1601 . Lessee further agrees at any time
and from time to time, upon not less than twenty (20) days'
prior written request by Lessor, to execute, acknowledge and
deliver to Lessor a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and
effect as modified, and stating the modifications), and the
date to which the rental and other charges have peen paid in
advance, if any, it being intended that any such statement de-
livered pursuant to this Section 1601, may be relied upon by
any prospective purchaser of the fee, or mortgagee or assignee
of any mortgage upon the fee, of the demised premises
.
INSPECTION OF PREMISES .
Section 1701 . Lessee agrees to permit Lessor and
the authorized representatives of Lessor, to enter the demised
premises at all reasonable tines during business hours for the
purpose of inspecting the same .
-21-
:TURES .
Section
1"001 . All buildings and improvements
and
all plutbing, heating, lightin g-, electrical
and air
condition-
ing
fixtures and equipment and other articles of personal
property used in the operation of such buildings as such (as
distinguished from operations incident to the business of Les-
see) now or hereafter located upon said land, together with
all duct electrical lines, whether or not attached or affixed
to said land or any buildings thereon, sometimes herein re-
ferred to as "building fixtures," shall be and remain a part
of the real estate and shall constitute the property of
Lessor .
Section 1802 . All of Lessee's trade fixtures and
all personal property, fixtures, apparatus, machinery and
equipment nor or
hereafter located upon said land, other than
building fixtures as defined in Section 1801 hereof, and owned
by Lessee or any other occupants of the-demised premises and
whether or not the same are affixed thereto, shall be and
remainn the personal property of Lessee or such other occu-
pants, and the same are herein sometimes referred to as "Les-
see's equipment ."
Section 1803
. Lessee's equipment may be removed
from time to time by Lessee or other occupants of the demised
premises, provided, however,
that if such removal shall in-
jure or damage the premises, Lessee shall
reasonably repair
the damage and place the premises in the same condition as it
would have been if such equipment had not been installed
.
-2 2_
C
RE-EiiTRYupon
DEFAULT .
Section 19,^,1
. Lessee further
agrees
that any one
or mare of the
following events shall
be
considered events
of default as said
term is used
herein, that is
to say, if
(a)
Lessee shall be
adjudged a
bankrupt,
or a decree
or order approved,
as properly
filed,
a petition or answer asking reorganiza-
tion of Lessee under the Federal bankruptcy
laws as now or hereafter amended, or under the
laws of any State, shall be entered, and by
any such decree or judgment or order shall
not have been vacated or stayed or set aside
within sixty (60) days from the date of the
entry or granting thereof
; or
(b) Lessee shall file or admit the
jurisdiction of the court and the material
allegations contained in, any petition in
bankruptcy, or any petition pursuant or pur-
porting to be pursuant to the Federal bank-
ruptcy laws as now or hereafter amended,
or Lessee shall institute any proceedings
or shall give its consent to the institu-
tion of any proceedings for any relief of
Lessee under any bankruptcy or insolvency
laws or any laws relating to the relief of
debtors, readjustment of indebtedness, re-
organization, arrangements, composition or
extension ; or
-23-
-24-
(c) Lessee shall ma:<e
any assignment
for the
benefit c : creditors or shall
apply
for or
consent to the appointment
of a re-
ceiver for Lessee
or any of the
property of
Lessee ;
or
(d)
A decree or order
appointing a
receiver
of the property
of Lessee shall
be
made and
such decree
or order shall not have
been vacated, stayed
or set aside
within
sixty (60) days
from the date of entry or
granting thereof ; or
(e) Lessee shall vacate and abandon
the leased premises during the term hereof
;
or
(f) Lessee shall rake default in anv
monthly payments of basic rent required to
be made by Lessee hereunder when due as
herein provided and such default shall
:con-
tinue for twenty (20) days after notice
thereof in writing to Lessee ; or
(g) Lessee shall make default in any
of the other covenants and agreements here-
in contained to he kept, observed and per-
formed by Lessee, and such default shall
continue for sixty (60) days after notice
thereof in writing to Lessee .
s
Upon the
occurrence of any one
or more of such
events of d=_'ault, it shall b_ lawful for Lessor, at its elec-
ticn, to declare the said term ended, and the said demised
promises
the
buildings and improvements then situated
thereon or any part thereof, either with or without process
of law, to r_-enter and to expel, remove and put out, Lessee
and all persons occupying said premises under Lessee, using
such force as may be necessary in so doing, and the said
premises and the buildings and improvements then situated
thereon, again to repossess and enjoy as in their first and
former estate, without such re-entry and repossession working
a forfeiture of the rents to be paid and the covenants to be
performed by Lessee during the full term of this Lease_ If
default shall be made in any covenant, agreement, condition
or undertaking herein contained to be kept, observed and per-
formed by Lessee, other than the payment of rent as herein
provided, which cannot with due diligence be cured within a
period of sixty (60) days, and if notice thereof in writing
shall have been given to Lessee, and if Lessee, prior to the
expiration of sixty (60) days from and after the giving of
such notice, commences to eliminate the cause of such default
and proceeds diligently and with reasonable dispatch to take
all steps and do all work required to cure such default and
does so cure such default, then Lessor shall not have the right
to declare the said term ended by reason of such default
; pro-
-25-
rid d, ho^'ear,
that
the
curing
of
any default
in
such manner
shall not be
construed
to limit or restrict the
right of Les-
sor to declare the said term ended and enforce all of its
right and remedies hereunder for any other default not so
cured
.
Section 1902 . The foregoing provisions for the ter-
mination of this Lease for any default in any of its covenants,
shall not operate to exclude or suspend any other remedy of
Lessor for breach of any of said covenants or for the recovery
of said rent or any advance of Lessor made thereon, and in the
event of the termination of this Lease as aforesaid, Lessee
agrees to indemnify and save harmless Lessor from any loss
arising from such termination and re-entry in pursuance thereof
and to that end Lessee agrees to pay Lessor, after such ter-
mination and re-entry and upon demand, all reasonable expenses
of re-letting, including, without limiting the generality of
the foregoing, the reasonable costs of decorating and restor-
ing the premises, brokers' commissions and Lessor's reasonable
attorneys' fees, plus, at the end of each month of the demised
term, the difference between the net income actually received
by Lessor from said demised premises during such month and
the rent agreed to be paid by the terms of this Lease during
such month .
LESSOR'S pERFO}t_MCE OF LESSEE'S COVtMflS
.
Section 2001
. Should Lessee at any time fail to
do
any o the Things required to be done
by it under the provi-
-2G-
sic ;:s
o` this Lease,
Lassos,
at its option and
pursuant to the
provisions
relating
to notice
contained
in
S:-ction
1901, may
(but shall
not
be required to)
do the
same or cause the same
to be done, and the amounts paid by Lessor in connection there-
with shall be so much additional rent due on the next rent date
after such payment together with interest at ten per cent (10%)
per annum from the date of payment
.
SUBORDINATION TO MORTGAGES .
Section 2101 . At the option of Lessor's mortgagee,
this Lease shall be subject and subordinate to any first mort-
gage or deed of trust now upon the demised premises and any
mortgage or deed of trust hereafter placed upon the demised
premises, provided that the mortgagee or the trustee and bene-
ficiary under such deed of trust agrees in writing with Lessee
or adequate provision is made in such mortgage or deed of
trust, that, regardless of any default or breach under such
mortgage or deed of trust or of any possession or sale of the
whole or any part of the premises under or through such mort-
gage or deed of trust, that this Lease and Lessee's possession
shall not be disturbed by mortgagee or beneficiary or any oth-
er party claiming under or through such mortgage or deed of
trust, provided, however, that Lessee shall continue to ob-
serve and perform Lessee's obligations under this Lease and
pay rent to whomsoever may be lawfully entitled to same _from
time to time
. Lessee hereby agrees to execute, if sane
is re-
quired, any and alll in,trum:_nts
in writing which may be re-
-27-
K
qucsicd by Lessor to subordinate Lessee's rights
acquired
by
ti •. is Lease to the lion of any such r..ortgage or deed of trust,
all as aforesaid . Irrespective of whether or not this Lease
is subordinated to any such mortgage or deed of trust, t
mortgagee or beneficiary under such mortgage or deed of trust,
shall agree in writing that proceeds of insurance, or awards,
payable to Lessee in the event of partial condemnation as
provided in Section 1103 shall be made available to Lessor
for the purpose of repairing, restoring and rebuilding, as
provided in this Lease, or adequate provisions relative there-
to shall be made in such mortgage or deed of trust .
REI?EDIES TO BE CUMULATIVE .
Section 2201 . No remedy herein or otherwise con-
ferred upon or reserved to Lessor, shall be considered ex-
clusive of any other remedy, but the same shall be cumula-
tive and shall be in addition to every other remedy given
hereunder now or hereafter existing at law or in equity or
by statute, and every power and remedy given by this Lease
to Lessor may be exercised from time to tine and as often as
occasion may arise or as may be deemed expedient . No delay
or omission of Lessor to exercise any right or power arising
from any default, shall impair any such right or power or
shall be construed to be a waiver of any such default or an
acquiescence therein .
Section 2202
. No waiver of any breach of any o`
the covanantc of this Lease shall be construed, tc'
.:e • . .
held'l to he a
of anv other breach or ;waiver, au
C
cence in or
consent to any further or succeeding breach
of the
sate
covenant .
Section 2203 . Neither the rights herein given to
receive, collect, sue for or distrain for any rent or rents,
moneys or p_ •: .-:=_nts,
or to enforce the terns, provisions and
conditions of this Lease, or to prevent the breach or non-
observance thereof, or the exercise of any such right or of
any other right or remedy hereunder or otherwise granted or
arising, shall in any way affect or impair or toll the right
or power of Lessor to declare the term hereby granted ended,
and to terminate this Lease as provided for in this Lease,
because of any default in or breach of the covenants, provi-
sions or conditions of this Lease
.
SURRENDER OF POSSESSION
.
Section 2301
. Whenever the said term. heroin de nsoa
shall be terminated, whether by lapse of time, forfeiture or
in any other way,
Lessee agrees that it will at once surrender
and deliver up said premises, including the buildings and im-
provements thereon and the fixtures and equipment belonging
to Lessor therein contained, peaceably to Lessor and if
Lessee shall thereafter remain in possession thereof, it
shall be deemed guilty of forcible detainer of the premises
under the statute and shall be subject to all the conditions
and provisions above named and to ejection and removal, for-
cibly and otherwise, with or without process of law as above
stated .
Section 2302
. In connection with said surrender of
possession, Lessor agrees to permit Lcssee to cope onto the
-2^-
d_nised premises at reasonable tires for the purpose
of re-
moving connections, such as breezeways and water mains,
:, be-
tween tae building and the property contiguous to the demised
premises owned by Lessee . Such disconnections shall be made
at Lessee's cost and expense
.
COVENANT
OF
QUIET ENJOYMENT .
Section 2401 . Lessor further agrees that at all
times when Lessee is not in default under the terms of and
during the term of this Lease, Lessee's quiet and peaceable
enjoyment of the demised premises shall not be disturbed or
interfered with by Lessor or by any person claiming by,
through or under Lessor .
SHORTFORMLEASE .
Section 2501
. This Lease shall not be recorded,
but the parties agree, at the request of either of them, to
execute a Short Form Lease for recording, containing the name
of the parties, the legal description and the term of the
Lease .
LESSEE'S OPTION TO EXTEND .
Section 2601 . Lessee shall have no option to extend
the term of this Lease except to the extent that such option
of extension is given in the attached SCHEDULE B .
NOTICES OR DZUANDS
.
Section 2701 . All notices to or demands upon Lessor
or Lessee desired or required to be given under any of the
provisions hereof, shall be in writing
. Any notices or de-
-70-
ds from Lessor to Lessee shall be deemed to have been duly
and snfftcientl•;
given if a cog_,
thereon has been mailed by
United States registered or certified rail in an envelope
properly star.oed
and addressed to the Lessee at the demised
premises, or at such other address as Lessee may theretofore
have furnished by written notice to Lessor
. Any notices or
demands from Lessee to Lessor shall be deemed to have been
duly and sufficiently given if mailed by United States regis-
tered mail or certified mail in an envelope properly stamped
and addressed to Lessor, C/o
Theodore G . Gaines, 221 'North
LaSalle Street, Chicago, Illinois 60601, or at such other ad-
dress as Lessor may theretofore have furnished by written no-
tice to the Lessee
. The effective date of such notice shall
be three (3) days after delivery of the same to the United
States Post Office for mailing
.
COVENANTS RU:1 WITH LAND
.
Section 2801
. All of the covenants, agreements, con-
ditions and undertakings in this Lease contained shall extend
and inure to and be binding upon the heirs, executors, admin-
istrators, successors and assigns of the respective parties
hereto, the same as if they were in every case specifically
named, and shall be construed as covenants running with the
land, and wherever in this Lease reference is made to either
of the parties hereto, it shall be held to include and apply
to, wherever applicable, the heirs, executors, administra-
tors, successors and assigns of such party
. Nothing herein
-31-
ccn.tained
shall he
construed
to grant or
confer
upon any
person other
than
the parties hereto, their heirs, executors,
administrator's, successors and assiens, any right, claim or
privilege by virtue of any covenant, agreement, condition or
undertaking in this Lease contained .
Section 2^002 . The term "Lessor" as used in this
Lease, so far as covenants or obligations on the part of Les-
sor are concerned, shall be limited to mean and include only
the owner or owners at the time in question of the fee of
the demised premises, and in the event of any transfer or
transfers of the title to such fee, Lessor herein named (and
in case of any subsequent transfers or conveyances, the then
grantor) shall be automatically freed and relieved, from and
after the date of such transfer or conveyance, of all per-
sonal liability as respects the performance of any covenants
or obligations on the part of Lessor contained in this Lease
thereafter to be performed ; provided that any funds in the
hands of such Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be turned
over to the grantee, and any amount then due and payable to
Lessee by Lessor or the then grantor under any provisions of
this Lease, shall be paid to Lessee
; provided, further, that
Lessee may elect to have such funds paid to a corporate trus-
tee selected by Lessor from among the five largest Chicago
bar.!,,s,
to be held in trust for the benefit of Lessor and Les-
see, as their respective interests may appear, and dealt with
_32-
in
accordance with tiie
s__tion
of th : : lease under
which tae
fuans
become payable
. The fees and
e
:penses of the
corporate
trustee shall be paid by Lessee .
SEC'UP.I^_Y
DE?OSIT .
Section 2901 . As security for the faithful perfor-
mane of the terns, covenants, conditions and provisions of
this
Lease as well as indemnification to Lessor from any dam-
ages, costs,
expenses,
fees or other burdens
to which
Lessor
may be put by reason of any default by Lessee hereunder, of
the terms of this Lease, Lessee hereby agrees to deposit with
Lessor the sum of $141,000 as a security deposit . One-half
of the security deposit shall be paid to Lessor upon execution
hereof ; the other half shall be paid upon commencement of the
tern of this Lease .
V/
In the event Lessee shall be in default hereof and
should such default not be remedied by Lessee in accordance
with the provisions herein, then Lessor may apply all or any
portion of the security deposit in payment of Les'sor's costs,
expenses, damages, fees and burdens suffered or accrued in
enforcing the terms, covenants, conditions and provisions of
this Lease
. Nothing herein contained shall be construed to
mean that the recovery of damages by Lessor against Lessee
shall be limited to the amount of the security deposit
. In
the event any portion or all of the security deposit is
a;-.-
plied by Lessor in accordance with the foregoing, durinc
t
term hereof, then the Lessee shall upon request of the '
.~
-33-
deoos_t with Lessor add':tionel
sums
so that the
amount of
the
seccri_
deposit in the hands of
the
Lessor shall
at
all times
be not
less than the sic:. total
of security deposit as
pro-
vided
for
hereunder .
Interest
at the rate of seven percent
(7%)
per an-
num
shall be paid
to Lessee on the balance of the security de-
posit on hand from time to time during the first four years
of the term of this Lease and interest at six percent (6%)
shall be paid during the remainder of said term, payable on
the anniversary date of this Lease during the term hereof and
all extensions and provided that no defaults have occurred
hereunder which have not been cured as provided herein
.
Lessor shall return to the Lessee a portion of the
security deposit in the principal amount of $100,000, payable
in 83 equal monthly installments of $1,2000
0 and one final monthly
installment of $400, the first installment being payable thir-
teen months after commencement of the term
.
Lessor shall have the free and unrestricted right
to treat such security deposit in any manner or mode
which
suits its convenience and necessity
. The security deposit
not theretofore returned to Lessee shall be returned to Les-
see upon the expiration of the term of this Lease and upon
compliance by Lessee with all the provisions and terms here-
of
. In the event the term of this Lease shall not cormence
without fault of the Lessee, then Lessor shall return the
entire security deposit upon demand of the Lessee
.
-34-
=!EOF Section
3001 . Time is of the essence
of
this Lease,
and all pr-_v
lions
herein _elatin g thereto shall
be
strictly
construed .
ARLITPXI'ioa
Section
3101 . E-henever a dispute arises which un-
der the tears of this Lease is to be determined by arbitra-
tion, either party may demand arbitration by written notice
to the other party setting forth the point or points in dis-
pute . The rules of the American Arbitration Association shall
govern . Costs incurred as a result of such arbitration shall
be borne equally by Lessor and Lessee
.
HISCELLANNEOUS
.
Section 3201 . The captions of this Lease are for
convenience only and are not to be construed as part of this
Lease and shall not be construed as defining or limiting in
any way the scope or intent of the provisions hereof .
Section 3202 . If any term or provisions of this
Lease shall to any extent be held invalid or unenforceable,
the remaining terms and provisions of this Lease shall not
be affected thereby, but each term and provision of this
Lease shall be valid and be enforced to the fullest extent
permitted by law .
Section 3203
. This Lease shall be construed and
enforced in accordance with the laws of the state where the
demised premises are located .
Section 3204 . In the event Lessor proposes to
se11 the fee to tha demised premises to a prospective pur-
-35-
chaser thereof, it ;hall give Lessee written
notice of
said
nrcJosa1
, statir.y t-- e terms and
conditions
of sale submitted
b_ said
pros?ectiv purchaser and tentatively
agreed to by
Lessor .
Lessee shall have a prior right
to Purchase said
fee
upon said terms and conditions, exercisable
upon written
notice to Lessor within twenty (20) days following receipt
of notice from Lessor as aforesaid . If notice of exercise
of said right is not given within said period by Lessee,
Lessee's right shall thereupon terminate as to the proposed
sale in question .
Section 3205 . In the event Lessee is obligated to
make sinking fund deposits for real estate taxes with any
mortgagee on primary mortgage financing covering the demised
premises hereafter, then Lessee agrees that it will make sink-
ing fund dcp .
-4 '
..
da___e_tly
t _ to t .c ..n
-tgagcc,_,
.._
•s
or such pu .,c=_e
in partial satisfaction of its obligations under section 501 .
Section 3206 . Lessor agrees that it will obtain
primary mortgage financing covering the demised premises from
an institutional investor
.
EXECUTION CLAUSE
.
Section 3301
. This Lease is executed by Michigan
Avenue National Ban}: of Chicago, a national banking associa-
tion, not personally, but as Trustee under Trust No . 1904, as
aforesaid, in the exercise of the power and authority con-
ferred upon and vested in said Trustee as such, which
ority it possesses, and it is expressly understood an
,-'
that nothing in said Lease contained shall be consLrN
•" :
c reati.ng any liability on said Trustee personally to
.
-36-
ir,_eb± .-~.__ss _ng the re_ ::c'e_, or to P erform
. a: cov_ria
eith_- express or _ :nplied _ . . said
Lease (all such liability,
if any, bein
; _ :
:oressiy waivad by the said Lessee and by
every person no
:
: or hereafter claiming any right or security
hereunder) and the Lassee and anyone claiming thereunder shall
look solely to the trust property and the premises described
therein for the payment or enforcement thereof, it being un-
derstood that the said Trustee merely holds legal title to
the premises therein described and has no control over the
management thereof or the income therefrom, and has no knowl-
edge respecting rentals, leases or other factual matters with
respect to said premises, except as represented to it by the
beneficiary or beneficiaries of the said Trust .
IN WITNESS WHEREOF, the parties hereto set their
hands and seals the day and year first above written .
MICHIGAN AVENUE NATIONAL BANK AND
TRUST COMPANY, a National Banking
Assoc `ion, not personally but as
Trust
nder Trust No . 1904 .
(SEL;)
By
J. V
.
Its Assistant Secretary
Elsie C .
Gadzinski,
(SShL.)
AT TE
S
T~
. p .
Its Asais,tan_ Secre ary
a are cor or
C
SCHEDULE A
PROPERTY
MaySchedule21,
1971,annexed
fortopropertyLease
datedknown
as
1810
Fifth
Avenue, River
Grove, Illinois
The demised
premises, commonly known as
1810 Fifth
Avenue, Village of
River Grove, State of
Illinois, will
be
improved by the Lessor, at Lessor's sole cost, with a build-
ing and other improvements to be constructed in accordance
with Plans and Specifications attached hereto and identified
as Exhibit E, on real estate having the following legal des-
cription :
The South 260
.0 feet of that part of the
North West Quarter of the South West Quar-
ter which lies Northeasterly of the Minne-
apolis, St
. Paul and Sault Ste . Marie Rail-
road right of way of Section 35, Township
40 North, Range 12 East of the Third Prin-
cipal Meridian, in Cook County, Illinois
.
Lessor shall commence construction of the improve-
ments in accordance with Plans and Specifications and Working
Drawings on or before July 1, 1971, and after obtaining neces-
sary building permits so to do
. It is estimated that the im-
provements shall be substantially completed and ready for
occupancy by the Lessee on or before December 1, 1971
. Les-
sor shall diligently proceed with such construction but if
such construction is delayed because of delay in securing a
building permit, failure of Lessee to approve the Plans and
Specifications, changes in construction renuired by Lessee,
strikes, lockouts, acts of God or the public enemy,
cove--n-
rental
restrictions, unavailai>ility of mate-ials, or other
matters beyond
the control of Lessor, then the ti.ae of com-
pletion of such
construction shall be extended for an addi-
tional time
caused by such delay .
SCHEDULE u
T ER!i
Schedule anne
:ed to Lease dated
May 21, 1971, for property known
as 18810 Fifth Avenue, River Grove,
Illinois .
The original term of this Lease shall be for twenty-
. five (25) years, said term to
icor
••m
enc- an _December 1, 1971 (or
the date that the improvements to, be made to the real estate
described in SCHEDULE A are substantially completed and ready
for occupancy by Lessee, if later than the stated date)
. Les-
sor shall notify Lessee in writing at least fifteen (15) days
in advance of the completion date, and Lessee shall thereafter
accept the premises in accordance with the completion date
specified by Lessor (estimated to be on or about December 1,
1971)
. Determination of the building's availability for use
and occupancy by the Lessee shall be made by the Certificate
of the Architect or by a Certificate of Occupancy issued by
the governmental agency having jurisdiction or control
. If
the issuance of a Certificate of Occupancy is a legal prere-
quisite to occupancy of the demised premises, Lessor shall
procure said Certificate at its expense .
Lessee shall have the option to extend the tern of
this Lease for one period of five years (the "reneaal tern")
which shall bo on the term
: and conditions of the Lease to
which this schedule is attached, exccnt as othen.,
ise provided
in Schedule C
. If Lessee dcsires to extend the origin, : :cci
o : this Lease b_v
th2 period o= the renewal term,
it
shall
Lessor written notice to that effect not later than one
pear prior to the expiration o` the original term
.
rent accrued under the
be
paid when due shall
nun from the date when
shall be paid .
In the event
Scn°DOLE C
REa AL
Schedule annexed to Lease dated
flay 21, 1971, for property known
as 1810 Fifth Avenue, River
Grove, Illinois
During the original term of this Lease, Lessee agrees
to pay Lessor, without prior demand, in coin or currency which
at the time or times of payment is legal tender for public or
private debts in the United States of America, monthly rent of
$12,833 .33, payable in advance, commencing on the first day of
the term and continuing on the first day of each month there-
after for the next succeeding 299 months . Any installment of
of this Lease is not on the
provisions of this Lease which shall not
bear interest at the rate of 10% per an-
the sum is due hereunder until the same
that
the commencement date of the tern
first day of a calendar month,
then for that period from the commencement date of the Lease
to the end of the calendar month rent shall be prorated so
that all other rentals due hereunder shall fall due on the
first day of each calendar month of the term hereof
; and, in
addition, the term of this Lease shall be extended to the last
day of the calendar month in the final year of the Lease
. Rent
SC ::'DULS D
It
:SURab:CS
Schedule annexed to Lease dated
tiov 21, 1971, for property
known
as
1810
Fifth Avenue, River
Grove, Illinois
The casualty insurance coverages which
Lessee shall
provide to Lessor under the provisions of this Lease are as
follows
:
1
. Insurance against loss or damage by fire,
the risks covered by what is coraonly known as "ex-
tended coverage," and malicious mischief and vandal-
ism in an amount equal to $1,300,000 .
2
. General public liability insurance for the
mutual benefit of Lessor and Lessee acainst claims
for personal injury, sickness or disease, including
death and property damage, in, on or about the de-
mised premises, or in, on or about the streest,
sidewalks or premises adjacent to the demised prem-
ises, such insurance to provide protection to the
limit of not less than $300,000, in respect to
each person, and to the limit of not less than
$1,000,000, in respect to any one occurrence
causing bodily injury or death, and to 'lie limit of
not less than $50,000, in respect to property
damage
. All such policies shall provide that the
same may not be cancelled or altered except upon
ten (10) days' prior written notice to L_snor .
E
3 . Steam
boiler insurance, for the
mutual
benefit
Lessor and Lessee, on all
steam boilers,
pressure vessels, and other such apparatus, includ-
ing pining, in such amounts as Lessor may from time
to time reasonably request . All such policies shall
require that they may not be cancelled or altered
except upon ten (10) days' prior written notice to
Lessor .
fcr cac.`. ino.-.ta of
the period
of
the renewal term shall
be
that agreed upon
by
Lessor and Lessee ;
provided, however,
that if Lessor and
Lessee have not agreed upon said rent
within thirty
(30)
days
from
the
date of the notice to ex-
tend given by Lessee pursuant to Schedule B, monthly rent
shall be determined by appraisal
. Lessor and Lessee shall
each select an appraiser who is a merber of the M .A.I . Said
appraisers shall each determine what they consider an appro-
priate rent . If the difference between the two appraisals
is less than ten percent (10%), rent shall be the average
of the two appraisals . If the difference between the two
appraisals is ten percent (10%) or greater, the two appraisers
shall jointly select a third appraiser who shall also make an
appraisal, and rent shall be the average of the three ap-
praisals . Lessor and Lessee shall each pay the fee charged
by the appraiser selected by it, and shall each pay one-half
of the fee charged by the third appraiser .
Exhibit
B
Id. No. 80580
IN
THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION
COLE TAYLOR BANK, not individually, but )
solely as trustee under a certain Illinois land trust
)
known as trust 40323 ; as successor trustee to
)
Michigan Avenue National Bank of Chicago,
)
under trust 1904,
)
Plaintiff,
)
vs.
)
No
. 97 L 04984
ROWE INDUSTRIES, INC . a corporation,
)
successor to COLEMAN CABLE AND WIRE )
COMPANY, a corporation, and CHAPCO
)
CARTON COMPANY, a corporation,
)
Defendants. )
ANSWER
Defendant Rowe Industries, Inc ., successor to Coleman Cable and Wire Company
("Coleman"), and Chapco Carton Company ("Chapco") (at times, collectively "Defendants"), by
their attorneys, respond as follows to Plaintiff's Complaint at Law :
1.
COMPLAINT:
Plaintiff, Cole Taylor Bank, not individually, but solely as trustee
under a certain Illinois land trust known as trust 40323, as successor trustee to Michigan Avenue
National Bank of Chicago, under trust 1904 (hereafter "Michigan Avenue") is an Illinois land trust
holding legal title to certain real property located in Cook County, Illinois, commonly known as 1810
North Fifth Avenue, River Grove, Illinois
.
ANSWER:
Defendants lack sufficient information upon which to form a belief as
to the truth of the allegations of Paragraph 1 and therefore deny the same
.
2.
COMPLAINT
:
Defendant, Rowe Industries, Inc., (hereafter "Rowe") successor to
Coleman Cable and Wire Company (hereafter "Coleman") is a corporation organized under the laws
of Delaware
. Plaintiff is informed and believes, and upon such information and belief alleges that
Rowe has its principal place of business in Phoenix, Arizona
.
ANSWER
:
Defendants deny that Coleman's principal place of business is in
Phoenix, Arizona. Defendants admit the remaining allegations of Paragraph 2 .
3.
COMPLAINT:
Defendant, Chapco Carton Company (hereafter "Chapco") is a
corporation organized under the laws of Delaware, having its principal place of business in River
Grove, Cook County, Illinois .
ANSWER:
Chapco admits Paragraph 3 . Coleman lacks sufficient information
upon which to form a belief as to the truth of the allegations of Paragraph 3 and therefore denies the
same.
ALLEGATIONS COMMON TO ALL COUNTS
4.
COMPLAINT:
On May 21, 1971, Coleman, as lessee, entered into a written lease
with Michigan Avenue as lessor, for the rental of certain property commonly known as 1810 North
Fifth Avenue, River Grove, Illinois, (hereafter the "real estate") which lease terminated on December
31, 1996
. A copy of that lease is attached hereto as Exhibit 1 .
ANSWER:
Defendants deny that the Lease terminated on December 31, 1996 .
Defendants admit the remaining allegations of Paragraph 4 .
5.
COMPLAINT:
Plaintiff is informed and believes, and upon such information and belief
alleges that in 1984 Coleman, as sublessor, entered into a sublease agreement with Chapco as sub-
lessee
. Chapco remained in possession of the aforesaid rental real estate from 1984 as Coleman's
sublessee until December 31, 1996, the date of expiration of Coleman's lease
.
ANSWER ;
Defendants deny that the Lease and Sublease terminated on December
31, 1996
. Defendants admit the remaining allegations of Paragraph 5
.
6.
COMPLAINT:
At no time during the term of its lease with plaintiff was Coleman
released by plaintiff from any of Coleman's
.obligations under .the lease aforesaid
.
ANSWER:
Defendants neither admit nor deny Paragraph 6 on the ground that it
calls for a legal conclusion
.
7.
COMPLAINT:
At various times between 1971 and the date of the filing of this
Complaint, the exact dates of which are at present unknown to plaintiff, and during the time that the
real estate was in the possession and control of Coleman and/or Chapco, either or both of Coleman
and/or Chapco, knowingly caused or negligently permitted and allowed certain
hazardous materials
2
containing, among other hazardous substances, significant concentrations of cadmium, ethylbenzene,
toluene, xylene chromium and lead, to become deposited in the soil at the real estate .
ANSWER:
Chapco denies the allegations of Paragraph 7 directed to it . Coleman
denies the allegations of Paragraph 7 directed to it
. Defendants lack sufficient information upon
which to form a belief as to the truth of the remaining allegations of Paragraph 7 and therefore deny
the same .
8.
COMPLAINT : . As a direct and proximate result of the actions of Coleman and
Chapco, the real estate has been significantly damaged, and plaintiff will be forced to spend large
amounts of money to remediate the real estate .
ANSWER:
Chapco denies the allegations of Paragraph 8 directed to it . Coleman
denies the allegations of Paragraph 8 directed to it . Defendants lack sufficient information upon
which to form a belief as to the truth of the remaining allegations of Paragraph 8 and therefore deny
the same.
COUNT I
BREACH OF CONTRACT
9.
COMPLAINT
:
Section 601 of the lease between Coleman and plaintiff provides:
"USE.
Section 601
. The demised premises shall be used for any business or purpose
permitted by present zoning classifications, or as the said demised premises may be rezoned
from time to time hereafter
.
Lessee shall not use or occupy the demised premises or permit
the
demised premises
to be used or occupied contrary to any statute rule order, ordinance
requirement or regulation applicable thereto, or in any manner which would violate anv
Certificate of Occupancy affecting the
same or which would cause structural injury to the
improvements or cause the value or usefulness of the demised premises or anv part thereof to
diminish
or which would constitute a public or private nuisance or waste, and Lessee agrees
that it will promptly upon discovery of any such use, take all necessary steps to compel the
discontinuance of such use and to oust the subtenants or occupants guilty of such use ."
(underlining supplied)
ANSWER
:
Defendants deny the allegations of Paragraph 9 and state that the lease
is the best evidence of its terms and effect
.
3
10.
COMPLAINT:
Section 701 of the lease between Coleman and plaintiff provides :
Section 701
. After the completion of the building by Lessor, Lessee agrees, at its
expense, to keep the demised premises in good repair and in a clean and wholesome
condition and to
at all times fully comply with the health and police regulations in force and
al that it will kee the ims svements t n time tua
o u . .n the emi , . .remis and all
sidewalks and areas and adjacent thereto as well as in the area thereof safe and secure and
conformable to the lawful and valid requirements
of any municipality in which said demised
,premises may be situated and of all other public authorities,
and will make at its own expense,
all additions, improvements, alterations and repairs on the demised premises and on and to
the appurtenances and equipment thereof required by any lawful authorities
or which may be
made necessary, by the act or neglect: of any other person or corporation (public or private),
including supporting the streets and alleys adjoining the demised premises, arid will keep
Lessor harmless and indemnified at all times against any loss damage . cost or expense by
reason of the failure so to do in any respect or by reason of any accident, loss or damage
resulting topersons or property from any . .use which may be made of said
premises or of any
improvements at any time situated thereon or by reason of or
growing out of any act or thing
done or omitted to be done upon said premises or in any building at any time Situated
thereon: and Lessee agrees that it will save, hold and keep Lessor and the demised premises
free and clear of and-from any and all claims, demands, penalties, liabilities, judgments, costs
and expense, including reasonable attorneys' fees, arising out of any damage which may be
sustained by adjoining property or adjoining owners or other persons or property in
connection with any remodeling, altering or repairing of any building or buildings on the
demised premises or the erection of any new building or buildings thereon, unless such action
is undertaken by Lessor pursuant to its obligations under this Lease
." (underlining supplied)
ANSWER:
Defendants deny the allegations of Paragraph 10 and state that the
lease is the best evidence of its terms and effect .
11 .
COMPLAINT:
At all relevant times there were in full force and effect a statute of the
State of Illinois known as "the Environmental Protection Act 415 ILCS 5/1 et. seq. (the "Act")
prohibiting the disposal of waste except as specifically permitted therein, a relevant portion thereof
which in words and figures is as follows :
No person shall . .
.[d]ispose, treat, store or abandon any waste, or transport any waste into
this State for disposal treatment, storage or abandonment, except as a site or facility which
meets the requirements of this Act and of regulations and standards thereunder
.
415 ILCS 5/211(e)
ANSWER:
Defendants lack sufficient information upon which to form a belief as
to the truth of the allegations of Paragraph 11 and therefore deny the same .
4
12.
COMPLAINT :
The real estate does not meet the requirements of a waste disposal site
or facility under the Act and applicable Illinois Pollution Control Board regulations
.
ANSWER:
Defendants neither admit nor deny the allegations of Paragraph 12 on
the ground that they call for a legal conclusion .
13.
COMPLAINT:
By causing or allowing the contamination of soil at the real estate with
hazardous substances, the defendants have engaged in the disposal of waste at the real estate in
violation of Section 21 (e) of the Act .
ANSWER:
Defendants deny the allegations of Paragraph 13 .
14.
COMPLAINT:
The acts complained of herein that were done, suffered or permitted to
be done by defendant constitute a violation and breach of the terms of Sections 601 and 701 of the
lease attached as Exhibit 1 .
ANSWER:
Defendants deny the allegations of Paragraph 14 .
15.
COMPLAINT:
As a result of the breaches of the lease aforesaid, plaintiff has been
injured and the value of its property diminished by the sum of Two Hundred Fifty Thousand Dollars
($250,000 .00.
ANSWER:
Defendants deny the allegations of Paragraph 15
WHEREFORE, Defendants Rowe Industries, Inc.,
successor to Coleman Cable and Wire
Company, and Chapco Carton Company request that judgment be entered in their favor and against
Plaintiff.
COUNT II
NEGLIGENCE AGAINST COLEMAN AND CHAPCO
16-23 . COMPLAINT:
Plaintiff repeats and realleges the allegations contained in paragraph 1
through 8 inclusive as and for its allegations in paragraphs 16 to 23 inclusive in this Count II .
ANSWER
:
Defendants incorporate their answers to Paragraphs 1-8 as their
answers to Paragraphs 16-23 .
24.
COMPLAINT
:
Plaintiff repeats and realleges the allegations contained in paragraph 12
as and for its allegations in paragraph 24 of this Count II
.
5
ANSWER:
Defendants incorporate their answers to Paragraphs
16-23
as their
answers to Paragraphs
24.
25.
COMPLAINT:
At all relevant times plaintiff was in the exercise of due care and
caution for itself and for others
.
ANSWER:
Defendants lack sufficient information upon which to form a belief as
to the truth of the allegations of Paragraph 25
and therefore deny the same
.
26
. COMPLAINT:
The acts of defendant Coleman and Chapco were in violation of the
statute aforesaid, negligent and in disregard of the rights Of plaintiff and of the general public and
caused harm to plaintiff and its real property
.
ANSWER :
Defendants deny the allegations of Paragraph
26 .
WHEREFORE, Defendants Rowe Industries, Inc.,
successor to Coleman Cable and Wire
Company, and Chapco Carton Company request that judgment be entered in their favor and against
Plaintiff.
ROWE INDUSTRIES, INC . a
corporation,
successor to COLEMAN CABLE AND WIRE
COMPANY, a
corporation, and CIIAPCO
CARTON COMPANY,
a corporation,
Defendants,
951213v01 Aer 0
6/26/97 11 :20 AM
By:
One of Their Attorneys/
WOWVrA
Arthur E . Rosenson
Much Shelist Freed Denenberg
Ament Bell & Rubenstein, P.C.
200 N . LaSalle, Ste.
2100
Chicago, IL 60601
(312) 346-3100
Id . No
. 80580
6
