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In Re Application of Rosewell





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.


This appeal arises from a judgment of the circuit court of Cook County on an application for judgment and order of sale against 82 parcels of real estate returned delinquent for the nonpayment of real estate taxes in 1973. The City of Chicago, owner of the fee simple interests in the subject properties, objected to the real estate tax assessments against these properties. On cross-motions for summary judgment, judgment was entered for the city. The county collector appeals.

The sole issue presented is whether the contractual agreements between the City of Chicago and other persons for the operation of parking facilities on the subject properties constituted leases for purposes of section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 507), which provides as follows:

"When real estate which is exempt from taxation is leased to another whose property is not exempt, and the leasing of which does not make the real estate taxable, the leasehold estate and the appurtenances shall be listed as the property of the lessee thereof, or his assignee, as real estate."

The parties stipulated that all of the subject properties were owned by the City of Chicago during the period in question, that all were improved with parking facilities which were operated by persons other than the city under written agreements, that all were assessed by the county collector during 1973, and that all such assessments were not against the tax-exempt fee interest of the city, but rather were against the interests, if any, of the parking lot operators. Incorporated in the stipulation was a copy of an ordinance which authorized the city's execution of the agreements and which presented the text of a "City of Chicago Parking Facility Agreement" agreed to be of the same form and substance as each of the 82 agreements executed. A summary of the terms of this agreement of importance to this appeal follows.

The agreement is described as the "CITY OF CHICAGO PARKING FACILITY OPERATOR'S AGREEMENT." The preliminary paragraphs state that the city "hereby grants to the Operator the privileges hereinafter described," that the agreement constitutes the entire agreement between the parties, and that the duration of the agreement is for one calendar year, unless sooner terminated.

Article I defines the "Bureau of Parking" as that agency of the city "having management and control of the establishment, operation and maintenance of parking facilities"; "Commissioner" is defined as "the Commissioner of Streets and Sanitation of the City of Chicago, or any other official designated by the City Council to have administrative supervision over the Bureau of Parking"; and "Operator" is defined as an entity which "owns, controls, manages and directs the business of parking motor vehicles."

Article II provides that "the Operator shall not assign or transfer this agreement nor any of the rights or privileges granted hereby, nor enter into any contract requiring or permitting the doing of any act hereunder by an independent contractor, unless otherwise expressly provided herein, without prior written approval signed by the Commissioner." This article continues that if "the control of the said [operator] entity changes at any time during the term hereof, the City may * * * take immediate possession of said premises and facility * * *." By virtue of article II the city and the operators are not to be considered co-partners or joint venturers.

Article III provides that the operator's "taking possession" of the premises shall constitute conclusive evidence of "his receipt thereof" in satisfactory condition.

Article IV requires that the operator keep the premises in a safe, sanitary and sightly condition, and in good repair and "yield the same back" to the city upon termination in such condition. If the premises are not so kept by the operator, the city may enter the premises "without such entry constituting a termination of the privileges herein granted or an interference with the possession of or constructive or other eviction * * *."

Article V prohibits the posting of signs, billboards, posters, or other advertisements in the facility by the operator without the prior written approval of the commissioner. The right to post such signs is reserved to the city.

Artice VI provides that "the Operator shall make no alterations or additions to the premises and facility * * * without the prior consent of the City * * *."

Article VII lists seven categories of maintenance responsibilities including "minor necessary repairs" to be assumed by the operator. The power to determine whether a repair is minor is reserved to the city. The operator's failure to fulfill these duties empower the city to "enter upon said premises" to insure compliance. The operator agrees to reimburse the city for all costs and expenses incurred by the city in entering and fulfilling the operator's maintenance responsibilities.

Article VIII lists 10 categories of duties imposed on the city including making necessary major repairs; supplying and maintaining all cash registers and pavement markings; supplying all parking tickets and forms, and light bulbs and fuses; and ...

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