                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




        Hartz Construction Co. v. Village of Western Springs, 2012 IL App (1st) 103108




Appellate Court            HARTZ CONSTRUCTION COMPANY, INC., and CHICAGO TITLE
Caption                    LAND AND TRUST COMPANY, as Trustee under Trust No. 17472
                           dated June 10, 2003, Plaintiffs, v. THE VILLAGE OF WESTERN
                           SPRINGS, a Municipal Corporation; GURRIE C. RHOADS,
                           Individually; COMMONWEALTH PROPERTIES COMPANY, LLC;
                           and RHOADS DEVELOPMENT COMPANY, Defendants (The Village
                           of Western Springs, a Municipal Corporation, Counterplaintiff and
                           Counterdefendant-Appellee; Gurrie C. Rhoads, Individually;
                           Commonwealth Properties Company, LLC; and Rhoads Development
                           Company, Counterdefendants and Counterplaintiffs-Appellants; Hartz
                           Construction Company, Inc., and Chicago Title Land and Trust
                           Company, as Trustee under Trust No. 17472 dated June 10, 2003,
                           Counterplaintiffs and Counterdefendants-Appellees).
District & No.             First District, Third Division
                           Docket No. 1-10-3108
Filed                      February 8, 2012


Held                       In an action arising from a recapture agreement pertaining to the
(Note: This syllabus       development of property in defendant village, the indemnification clause
constitutes no part of     in the agreement obligated defendant developers to reimburse the village
the opinion of the court   for its attorney fees and costs incurred in defending itself in the
but has been prepared      underlying suit brought by plaintiff construction company; furthermore,
by the Reporter of         the village had the authority under the Illinois Municipal Code to vacate
Decisions for the          certain property and allow plaintiff to purchase that property, and
convenience of the         defendant developers failed to establish a genuine issue of material fact
reader.)
                           to preclude summary judgment requiring them to dedicate the subject
                           property as a condition of receiving the benefits afforded them by the
                           ordinance that approved their planned unit development.
Decision Under               Appeal from the Circuit Court of Cook County, No. 06-CH-0281; the
Review                       Hon. Mary K. Rochford, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Tressler LLP, of Bolingbrook (Jeffrey M. Alperin, of counsel), for
Appeal                       appellants.

                             Klein, Thorpe & Jenkins, Ltd., of Chicago (Michael T. Jurusik, Lance C.
                             Malina, and Jacob Karaca, of counsel), for appellee Village of Western
                             Springs.

                             Rosenthal, Murphey, Coblentz & Donahue, of Chicago (John B. Murphey
                             and Judith N. Kolman, of counsel), for appellees Hartz Construction
                             Company and Chicago Title Land and Trust Company.


Panel                        PRESIDING JUSTICE STEELE delivered the judgment of the court,
                             with opinion.
                             Justices Neville and Murphy concurred in the judgment and opinion.



                                                 OPINION

¶1          This matter involves the recapture agreement entered into between the defendants, which
        comes before us for a second time on appeal. In Hartz Construction Co. v. Village of Western
        Springs, 391 Ill. App. 3d 75 (2009), we affirmed the trial court’s summary judgment for
        defendant Village of Western Springs (Village) and rejected plaintiff Hartz Construction
        Company’s1 (Hartz) challenge of the recapture fee methodology under the agreement.


                1
                  Hartz, which is the beneficiary of the Chicago Title land trust number 17472, is not a party
        to two of the counts in the counterclaims at issue in this appeal. The trial court granted Hartz’s
        petition to intervene as a coplaintiff with the Village in count III of its amended counterclaim against
        the Rhoads Defendants regarding the latter’s dedication of certain real property that Hartz could
        purchase pursuant to a Village ordinance. Hartz and coplaintiff Chicago Title Land and Trust
        Company, as trustee under trust number 17472 dated June 10, 2003, filed a brief joining the
        Village’s arguments on appeal, except the argument regarding count II of the Village’s amended
        counterclaim (Rhoads Defendants’ indemnification to the Village).

                                                      -2-
¶2       In the instant appeal, defendants Gurrie C. Rhoads, Commonwealth Properties, LLC, and
     Rhoads Development Company (collectively the Rhoads Defendants), appeal an order of the
     circuit court of Cook County granting summary judgment to the Village by virtue of granting
     the Village’s motion to reconsider and denying the Rhoads Defendants’ cross-motion to
     reconsider the trial court’s prior summary judgment rulings on certain counts in the parties’
     amended counterclaims. On appeal, the Rhoads Defendants argue the trial court erred in
     finding: (1) the recapture agreement obligates them to indemnify the Village for attorney fees
     and costs incurred in this litigation where the Rhoads Defendants contend the Village
     breached an implied duty of cooperation; (2) the Village had authority under section 11-91-1
     of the Illinois Municipal Code (Code) (65 ILCS 5/11-91-1 (West 2008)) to vacate certain real
     property under an ordinance, which would also allow Hartz to purchase the property for
     additional proposed construction in the Village; and (3) the Rhoads Defendants had to
     dedicate certain real property to the Village pursuant to an ordinance that approved the
     Rhoads Defendants’ residential planned unit development (Commonwealth Development)
     in the Village and a subsequent resolution approving the dedication. For the following
     reasons, we affirm the circuit court’s judgment in the Village’s favor.

¶3                                    I. BACKGROUND
¶4       This court’s prior opinion contains a recitation of general facts, which we incorporate in
     pertinent part herein:
             “Rhoads, Rhoads Development Co., and Commonwealth Properties, Co., LLC
         (Rhoads) are the developers of the ‘Commonwealth RPUD,’ which is part of a residential
         planned unit development in the Village of Western Springs known as the
         ‘Commonwealth Development.’ [Hartz] owns three noncontiguous parcels known as the
         ‘Waterford PUD,’ which were intended to be developed in conjunction with the overall
         Commonwealth Development. [Hartz’s] north and middle parcels are surrounded by
         Rhoads’ properties and the south parcel forms the southern boundary of the
         Commonwealth Development. The Commonwealth Development is zoned ‘R-4 Multi-
         Family Residence District.’ The Waterford PUD is a proposed single-family townhouse
         development.
             Pursuant to a Village ordinance [No. 92-1844] passed on August 10, 1992, Rhoads
         was required to make several improvements as a condition for approval to develop the
         Commonwealth Development. The improvements included constructing a sanitary sewer
         system, storm water sewer system, water distribution system, roadways, streets, the 53rd
         Street bridge, sidewalks, right-of-way landscaping, and street lighting. Rhoads also was
         required to build several water detention ponds. By 2000, Rhoads’ development was 75%
         to 80% complete.
             On October 28, 2002, *** Rhoads and the Village entered into a recapture agreement
         pursuant to section 9-5-1 of the [Municipal] Code. The stated purpose of the agreement
         was to reimburse Rhoads for the costs incurred in making improve-ments that benefitted
         properties other than [their] own. The preamble to the recapture agreement specifically
         noted Rhoads’ public improvements benefitted [Hartz’s] three noncontiguous parcels.


                                              -3-
          [Hartz’s] three parcels were the only ‘benefitted properties’ subject to the recapture
          agreement. Rhoads owned 88% of the property at issue in the recapture agreement, while
          [Hartz] owned 12%. The total cost of the public improvements included in the recapture
          agreement was $3,513,057. The agreement also provided that, if any term or provision
          was found illegal, the remaining terms and provisions continued to have full force and
          effect.” Hartz, 391 Ill. App. 3d at 77-78.
     In 1891, a plat of dedication shows the disputed property at issue, the 50th and 52nd Street
     rights-of-ways west of Flagg Creek and east of Commonwealth Avenue, was first dedicated
     to the Village. In 1973, the Village passed Ordinance number 1404, which vacated portions
     of Commonwealth Highway and certain intersected streets in the Forest Hills subdivision
     within the Village.
¶5        As early as 1991, the Rhoads Defendants engaged in discussions with the Village about
     the Commonwealth Development, a projected four-phase construction. The Rhoads
     Defendants and Hartz conducted negotiations about the development and the fee calculation
     methodology for the intended recapture agreement. After the developers’ discussions were
     unsuccessful, the Rhoads Defendants and the Village subsequently entered into the recapture
     agreement in October 2002.
¶6        In Ordinance No. 04-2311, dated September 27, 2004, the Village amended section 3 of
     Ordinance No. 92-1844, which approved the construction of Commonwealth Development
     in the Village on property along Commonwealth Avenue in the Flagg Creek area. The area
     was rezoned for the four-phase construction project. The Rhoads Defendants would make
     infrastructure and other improvements to the area, including installing streetlights and sewer
     mains. In June 2004, the Rhoads Defendants sought reconfiguration of the area to include
     building 4 more townhome units, increasing the total number of approved units from 129 to
     133. The design plans dated July 7, 2004, were approved by the Village. In accomplishing
     the reconfiguration and realignment of the area on Commonwealth Avenue south of 53rd
     Street, the Rhoads Defendants were to dedicate to the Village the public right-of-way Outlot
     A, which was described as “approximately 3,150.00 square feet in area and located north of
     and adjacent to 52nd Street and east of Commonwealth Avenue and the Hartz parcel.” In a
     letter dated July 22, 2004, sent by the Rhoads Defendants to the Village, they agreed to
     dedicate the real property commonly referred to as Outlot A in consideration of the
     allowances for the construction.
¶7        Subsequently, the Village passed Ordinance No. 05-2358, dated October 24, 2005, in
     which it approved Hartz’s request to develop 10 townhomes for a residential PUD located
     adjacent to Commonwealth Avenue south of the 50th Street right-of-way on Hartz’s middle
     and south parcels. These two parcels are referred to in the record as Waterford PUD #2 and
     Waterford PUD #3, respectively. Additionally, the two parcels are bounded by Flagg Creek
     to the east and family residential properties east of Flagg Creek, and zoned R-4 multifamily
     residence district surrounded by the Commonwealth Development. Further, the ordinance
     noted Hartz planned to “hold off on preliminary and final approval” of its north parcel, which
     is referred to in the record as Waterford PUD #1. However, under the terms of the ordinance,
     approval of the permit was conditioned on Hartz paying the Village the agreed recapture fee
     to reimburse Rhoads. Moreover, the ordinance indicated the Village “agree[d] to take the

                                              -4-
       necessary actions to sell Outlot D-3 *** to [Hartz] so that the land [could] be incorporated
       into the Waterford PUD #2 (Middle Parcel). After [a credit was] applied, [Hartz] agree[d]
       to pay $12,450.00 for title to Outlot D-3.”
¶8          On January 5, 2006, Hartz brought the underlying suit seeking injunctive and declaratory
       relief against the Village and the Rhoads Defendants that the recapture of certain costs
       pursuant to the recapture agreement between the Rhoads Defendants and the Village for
       “benefitted properties,” which included those owned by Hartz as stated in the approving
       ordinance, was invalid. As previously mentioned, this court rejected Hartz’s challenge on
       appeal.
¶9          On February 27, 2006, the Village approved and accepted the plat of dedication of a
       public right-of-way of property referred to as “Outlot D-3 (also known as Outlot A)” in
       Resolution No. 06-1915. The resolution referred to the proposed dedication to the Village
       at no charge as the property “contemplated” in Ordinance No. 04-2311. The property was
       described as located north of 52nd Street and east of Commonwealth Avenue, as an
       extension of the 52nd Street public right-of-way in the Village.
¶ 10        On July 20, 2006, the Village filed an amended four-count counterclaim. Count I sought
       declaratory relief to find the Village had no obligation to reimburse the Rhoads Defendants
       for any uncollected recapture costs per a provision in the recapture agreement. In count II,
       the Village asserted that the “Rhoads [Defendants] must reimburse the Village for all
       attorney[ ] fees and costs incurred over the course of the litigation,” including costs for
       asserting and defending counterclaims arising from the lawsuit. Count III requested
       declaratory judgment and injunctive relief, alleging the Rhoads Defendants had to transfer
       title of real property referred to as “Outlot A, now known as Outlet D-3”2 to the Village
       pursuant to the ordinance that enabled the Rhoads Defendants to construct Commonwealth
       Development and a subsequent resolution that the Village passed. Lastly, count IV sought
       declaratory relief that the Village was entitled to $448,470 in recapture fees from Hartz
       pursuant to the recapture agreement. Counts I and IV of the Village’s amended counterclaim
       are not at issue in this appeal.
¶ 11        Subsequently, the Village passed Ordinance No. 06-2406 on August 28, 2006, regarding
       Hartz’s petition for approval to develop eight townhomes on its north parcel (referred to in
       the record as Waterford PUD #1) and Hartz’s request that a portion of the 50th Street right-
       of-way be vacated, which the ordinance also described. Hartz submitted development plans
       and a subdivision plat for the proposed townhomes for the Village’s consideration and
       approval. Further, the ordinance indicates the Commonwealth PUD Homeowner’s
       Association supported Hartz’s petition, particularly its request to relocate a detention basin
       from one area to another lot. Moreover, the ordinance notes the Village was amending
       Ordinance No. 92-1844 to allow the eight townhomes to be built on Outlot D-1.
¶ 12        On September 7, 2006, the trial court granted Hartz’s petition to intervene as a coplaintiff
       in count III of the Village’s amended counterclaim. On October 18, 2006, the Rhoads


              2
               The Rhoads Defendants denied, and continue to deny on appeal, that the real property is
       the same piece of property they were required to dedicate in Ordinance No. 04-2311.

                                                 -5-
       Defendants filed their amended answer and affirmative defenses to the Village’s amended
       counterclaim, along with their amended three-count counterclaim seeking relief against the
       Village. For purposes of this appeal, the significant remaining count III concerned whether
       the Village had the authority to vacate the real property at issue pursuant to an ordinance that
       also allowed Hartz to purchase the property from the Village.3 As an affirmative defense to
       count III of the Village’s amended counterclaim, the Rhoads Defendants asserted the Village
       engaged in an ultra vires act by adopting Resolution No. 06-1915. The Rhoads Defendants
       also disputed a prior Village ordinance made the dedication of the referenced property a
       condition for allowing the construction of the Commonwealth Development. Alternatively,
       the Rhoads Defendants argued that the Village could only sell the property to Hartz pursuant
       to the cy pres doctrine.
¶ 13       During the course of the litigation, the parties engaged in discovery, including taking
       depositions.
¶ 14       On August 17, 2009, the Village filed a motion for partial summary judgment on the
       counts in its amended counterclaim against the Rhoads Defendants (counts II and III) and on
       count III of the Rhoads Defendants’ amended counterclaim. On December 18, 2009, after
       briefing and oral argument by the parties, the trial court issued a written memorandum and
       order granting the Village’s motion for summary judgment in part. In particular, the trial
       court entered judgment in the Village’s favor on the indemnification issue (count II of the
       Village’s amended counterclaim) and ruled the Village had authority to vacate the property
       for Hartz’s purchase pursuant to an ordinance.
¶ 15       However, the trial court concluded genuine issues of material fact precluded summary
       judgment on count III of the Village’s and the Rhoads Defendants’ amended counterclaims,
       respectively, reasoning that the relevant ordinance did not constitute a binding contract
       between the Village and the Rhoads Defendants, and the Village did not sufficiently address
       the ultra vires affirmative defense asserted by the Rhoads Defendants.
¶ 16       Subsequently, the Village filed a motion to reconsider the trial court’s rulings against
       them. Attached to the Village’s motion was the affidavit of Martin Scott, its director of
       community development, with plats and maps attached, indicating the Rhoads Defendants
       had received permits as a part of the Commonwealth PUD contemplated in Ordinance No.
       04-2311. The Rhoads Defendants also filed a motion to reconsider the denial of their
       summary judgment motion regarding the indemnification issue.
¶ 17       On May 27, 2010, the trial court issued a memorandum and order granting the Village’s
       motion to reconsider in its entirety, and consequently, also granted summary judgment to the
       Village. In sum, the trial court’s order concluded: (1) the recapture agreement did not contain
       a duty of cooperation and the Rhoads Defendants were obligated to indemnify the Village
       for its attorney fees and costs incurred in defending the Hartz litigation and count I of the
       Rhoads Defendants’ amended counterclaim; (2) the Village could vacate and convey the


               3
                According to the Rhoads Defendants’ opening brief and by defense counsel in response to
       the court’s inquiry at oral argument, their quantum meruit claim remains pending before the trial
       court. Neither the Village nor Hartz disputes this procedural account in their respective briefs.

                                                 -6-
       disputed property to Hartz for compensation by the Waterford Ordinance No. (05-2358)
       pursuant to the relevant provision in the Municipal Code; and (3) the Rhoads Defendants had
       to dedicate a certain parcel of property to the Village as a result of receiving benefits of and
       pursuant to Ordinance No. 04-2311 and per Resolution No. 06-1915.
¶ 18       Additionally, in its written ruling on the parties’ motions to reconsider, the trial court
       upheld the dismissal, with prejudice, of counts I and II of the Rhoads Defendants’ amended
       counterclaim. Of note, counts I and II were previously dismissed with leave to amend in an
       order entered on February 13, 2007, and before the Rhoads Defendants opposed the Village’s
       motion for summary judgment at issue. In its memorandum and order, the trial court also
       noted the Rhoads Defendants did not amend the counts. The Rhoads Defendants do not
       challenge the trial court’s ruling dismissing these counts with prejudice in this appeal.
¶ 19       On September 17, 2010, the trial court entered an agreed order containing a finding of
       no just reason delaying appeal of its May 27, 2010, order pursuant to Illinois Supreme Court
       Rule 304(a) (eff. Feb. 26, 2010). The Rhoads Defendants filed a timely appeal to this court
       on October 15, 2010.

¶ 20                                       II. DISCUSSION
¶ 21        This appeal comes to us after the trial court granted summary judgment for the Village
       by virtue of granting the Village’s motion to reconsider the trial court’s prior summary
       judgment rulings on issues related to the subject property and denying the Rhoads
       Defendants’ motion to reconsider its previous summary judgment ruling in the Village’s
       favor on the indemnification issue.
¶ 22        A party is entitled to summary judgment where “the pleadings, depositions, and
       admissions on file, together with the affidavits, if any, show that there is no genuine issue as
       to any material fact and that the moving party is entitled to a judgment as a matter of law.”
       735 ILCS 5/2-1005(c) (West 2008). The documents are construed strictly against the movant
       and in the light most favorable to the nonmovant. Espinoza v. Elgin, Joliet & Eastern Ry.
       Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is a drastic means of disposing of
       litigation and should be granted only when the movant’s right to relief is clear and free from
       doubt. Bagent v. Blessing Care Corp., 224 Ill. 2d 154, 163 (2007); Outboard Marine Corp.
       v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 23        The purpose of summary judgment motions is not for the trial court to try a question of
       fact, but to determine if a triable issue of fact exists. Robidoux v. Oliphant, 201 Ill. 2d 324,
       335 (2002). In order to survive summary judgment, the nonmoving party does not have to
       prove its case, but the party must present some factual basis which arguably entitles the party
       to a judgment. Id. We review a ruling on summary judgment de novo. Outboard Marine, 154
       Ill. 2d at 102; Judge-Zeit v. General Parking Corp., 376 Ill. App. 3d 573, 578 (2007). De
       novo review means that we “ ‘examine the evidence unconstrained by the reasoning of the
       trial court.’ ” Merca v. Rhodes, 2011 IL App (1st) 102234, ¶ 40 (quoting John E. Reid &
       Associates, Inc. v. Wicklander-Zulawski & Associates, 255 Ill. App. 3d 533, 538 (1993),
       citing Outboard Marine, 154 Ill. 2d at 102); see also Seitz-Partridge v. Loyola University of
       Chicago, 409 Ill. App. 3d 76, 87 (2011) (de novo standard of review on denial of motion to

                                                 -7-
       reconsider based upon the trial court’s application of existing law).
¶ 24       On appeal, the Rhoads Defendants argue the trial court erred in granting summary
       judgment for the Village based upon an indemnification provision with the Village under the
       parties’ agreement. The Rhoads Defendants also argue the trial court erred in granting
       summary judgment for the Village by finding the Village had authority to vacate the subject
       property for Hartz’s purchase and that the Rhoads Defendants were obligated to dedicate
       certain property to the Village. We will discuss each of the Rhoads Defendants’ arguments
       in turn.

¶ 25                                      A. Indemnification
¶ 26       First, the Rhoads Defendants argue they were not obligated to indemnify the Village for
       all costs and attorney fees associated with the litigation, including the filing of its
       counterclaim against the Rhoads Defendants, pursuant to the recapture agreement, because
       the Village breached an implied duty of cooperation that excused their duty to pay. The
       Rhoads Defendants have described various events prior to and after the Hartz litigation was
       commenced which they proffer as evidence of the Village’s lack of cooperation purportedly
       required by the parties’ agreement. The gist of the Rhoads Defendants’ argument is the
       Village breached the agreement by: (1) refusing to meet with the Rhoads Defendants’
       attorney to discuss the Village’s “interests” and coordinate a defense; (2) filing counterclaims
       against the Rhoads Defendants; and (3) sending a letter that expressed uncertainty about
       upholding the recapture agreement after Hartz questioned the recapture fee methodology in
       the recapture agreement. Indeed, the Rhoads Defendants maintain the Village worked with
       Hartz against them.
¶ 27       We look to the parties’ agreement to ascertain the parties’ intent. The interpretation of
       a contract is a question of law reviewed de novo. See Doornbos Heating & Air Conditioning,
       Inc. v. Schlenker, 403 Ill. App. 3d 468, 488 (2010) (in construing a written contract, court’s
       primary objective is ascertaining and giving effect to the parties’ intent as reflected in the
       agreement). Paragraph nine of the recapture agreement provides the following regarding
       indemnification to the Village:
           “[T]he DEVELOPER further agrees to indemnify and hold harmless and defend the
           Village of Western Springs, and its former, current and future officials, agents, servants,
           employees, attorneys and insurers and/or successors in interest of any kind, for and from
           any and all claims, actions, omissions, losses, injuries, lawsuits, counterclaims, debts,
           dues, obligations, judgments, awards, demands, liens, expenses, attorneys’ fees, costs,
           and expenses and costs of litigation, expert witness fees and consultant fees, and liability
           for damages of any kind and causes of action of any kind and nature, whether known or
           unknown at this time, whether present or future or contingent, that are brought or filed
           against the Village of Western Springs, or any of its former, current and future officials,
           agents, servants, employees and insurers and/or successors in interest of any kind, by any
           person, including without limitation George Bruckert or any person with an actual or
           purported ownership interest in the SUBJECT PROPERTY or the BENEFITTED
           PROPERTIES, arising out of, relating to, connected with, or in any way associated with


                                                 -8-
            this Agreement. ***
                In the event that any such claim, action, cause of action or lawsuit is brought or filed,
            the Village of Western Springs, and its former, current and future officials, employees,
            servants, agents, attorneys, insurers, and/or successors in interest sued thereunder, shall
            have the right to determine the attorney(s) of its, his, hers or their choice to represent and
            defend their interests in any legal or administrative action, all at the DEVELOPER’S
            expense pursuant to this Agreement.”
       A plain reading of the provision does not contain any express language mandating a duty of
       cooperation by the Village. At oral argument, however, while conceding the parties’
       agreement contained no express language, the Rhoads Defendants nonetheless maintain that
       every contract contains an implied duty of cooperation as part of the duty of good faith and
       fair dealing. As such, the Rhoads Defendants assert, the contract did not require express
       language to require the Village to cooperate with them as they state.
¶ 28        The Rhoads Defendants correctly indicate, as the trial court also acknowledged, every
       contract contains an implied duty of good faith and fair dealing. See, e.g., Seip v. Rogers Raw
       Materials Fund, L.P., 408 Ill. App. 3d 434, 443 (2011). However, just as the trial court
       rejected the Rhoads Defendants’ attempt to extend the implied duty to include a duty of
       cooperation, we similarly reject said defendants’ attempt to extend the well-established rule
       to interpreting the unambiguous contractual language before us. See id. (“The duty [of good
       faith and fair dealing], however, is not an independent source of duties for the parties to a
       contract and is ‘used as a construction aid in determining the intent of the parties where an
       instrument is susceptible of two conflicting constructions.’ ” (quoting Fox v. Heimann, 375
       Ill. App. 3d 35, 42 (2007))).
¶ 29        In support of their contention that the Village breached a duty to cooperate by its actions,
       the Rhoads Defendants rely upon Waste Management, Inc. v. International Surplus Lines
       Insurance Co., 144 Ill. 2d 178 (1991). In Waste Management, 144 Ill. 2d at 202, which the
       Rhoads Defendants cite, our supreme court concluded that the absence of express words
       stating a duty to cooperate in the parties’ agreement (insurance policy) at issue did not
       prevent finding such a duty could be reasonably inferred. However, we find their reliance on
       Waste Management’s holding is misplaced based upon the provision before us in the record.
¶ 30        In Waste Management, our supreme court ruled that the attorney-client privilege and
       work product doctrine did not bar disclosure of documents during discovery proceedings in
       a declaratory action involving an insurer and its insured where the insurance policy at issue
       contained a cooperation clause. Waste Management, 144 Ill. 2d at 191. The supreme court’s
       narrow holding in Waste Management found a duty of cooperation related to discovery
       proceedings in light of express language stating the insured was to provide information and
       assistance as reasonably required by the insurer contained in the parties’ agreement. Id. at
       191-92. Even the Waste Management court noted that where the policy provisions are clear
       and unambiguous, the court has a duty to enforce the agreement’s plain language. Id. While
       we agree that these parties do not have to match the classic profile of an insurer and insured
       for the concepts to apply, we nonetheless find the Rhoads Defendants have failed to cite any
       persuasive legal authority holding all contracts contain an implied duty to cooperate. Hence,


                                                  -9-
       we decline to infer such a duty exists here.
¶ 31        Furthermore, the Rhoads Defendants rely upon other noninsurance cases, such as Kipnis
       v. Mandel Metals, Inc., 318 Ill. App. 3d 498 (2000), to support their contention. In Kipnis,
       the appellate court reversed summary judgment where it found that the appellee (the former
       employer) breached a duty of cooperation by refusing to provide the appellant (a former
       employee) with financial information needed to make a bona fide offer of purchase pursuant
       to the parties’ agreement. Kipnis, 318 Ill. App. 3d at 505. The court agreed an implied
       condition of cooperation existed where such cooperation was deemed necessary for the other
       party’s performance. Id.
¶ 32        Unlike Kipnis, the instant facts do not demonstrate that even if such cooperation was
       implied, the Rhoads Defendants have not demonstrated why the Village needed to cooperate
       with the Rhoads Defendants as described or identify its “interests” to the Rhoads Defendants
       to meet their obligation to indemnify and defend the Village for litigation costs incurred in
       this litigation. At oral argument, the Rhoads Defendants conceded that the Village was in the
       best position to determine its interests, but maintained that a duty to select counsel could not
       be equated as having the right to control the litigation.
¶ 33        When viewing the indemnification clause in the parties’ agreement, the provision clearly
       states that the Rhoads Defendants, as the developer, agreed to indemnify and hold harmless
       and defend the Village against any and all claims, including counterclaims. Additionally, the
       agreement provides that the Village “shall have the right to determine the attorney(s) of its,
       his, hers or their choice to represent and defend their interests in any legal or administrative
       action, all at the [Rhoads Defendants’] expense.” Based upon the clear language of the
       agreement, the agreement does not require the Village to acquiesce to the Rhoads
       Defendants’ choice of attorney or coordinate a joint defense with the Rhoads Defendants.
       Inferring that an obligation to indemnify and defend includes a duty of cooperation would
       read more into the parties’ agreement than what they bargained for and ignore the express
       language that the Village was conferred the right to select its counsel to represent and defend
       its interests. Notwithstanding the Rhoads Defendants’ contention at oral argument that it
       would be “absurd” to read the provision as the Rhoads Defendants agreeing to pay for the
       Village’s counterclaim against them, the clear and unambiguous language in the agreement
       they executed prevails over the unfortunate consequences which they now face for
       undertaking an express obligation to indemnify the Village.
¶ 34        Moreover, the Rhoads Defendants argue that the Village should have invoked another
       clause of the agreement as a defense to Hartz’s challenge of the recapture agreement. In
       particular, the Rhoads Defendants refer to paragraph 11 of the agreement, which provides
       that “it is expressly understood and agreed by the parties that this Agreement may be pleaded
       by the VILLAGE, or any other person covered hereunder, as a complete defense to, and in
       bar of, any claim, action or proceeding *** on account of any of the matters set forth in this
       Agreement.” The Village counters that the Rhoads Defendants forfeited this argument, since
       it was not raised before the trial court. The Rhoads Defendants’ motion to reconsider failed
       to assert this as a basis for finding a breach. Consequently, the Rhoads Defendants should
       be deemed as forfeiting this argument on appeal. See Illinois Farmers Insurance Co. v.
       Cisco, 178 Ill. 2d 386, 395 (1997) (argument not made in trial court forfeited on appeal).

                                                -10-
       Even if this panel decided that forfeiture does not apply (see Johnson v. Johnson, 386 Ill.
       App. 3d 522, 533 (2008) (forfeiture is a limitation on the parties, not the reviewing court)),
       the Rhoads Defendants’ argument still fails as it is undisputed that the Village defended the
       validity of the recapture agreement against Hartz, concluding in a successful appeal, which
       the trial court also noted. Although the Rhoads Defendants disputed summary judgment as
       a litigation strategy, one could reasonably argue that the Village strategically countered
       Hartz’s summary judgment with a cross-motion seeking to uphold the recapture agreement,
       which it successfully defended before the trial and appellate courts.
¶ 35        Assuming arguendo the agreement contained an implied duty of cooperation, we
       conclude, based on the undisputed material facts in the record, that the Village and the
       Rhoads Defendants had a conflict of interest that extinguished any such duty. Courts have
       found that an insured is relieved of a duty to cooperate where a conflict of interest arises
       between the insured (indemnified party) and the insurer (indemnifying party). See, e.g.,
       Montgomery Ward & Co. v. Wetzel, 98 Ill. App. 3d 243, 252 (1981); Illinois Municipal
       League Risk Management Ass’n v. Seibert, 223 Ill. App. 3d 864, 875 (1992).
¶ 36        Here, the facts in the record suggest the Village and the Rhoads Defendants had a conflict
       of interest, namely, in what litigation strategy to employ and about further development
       (allowing Hartz to develop residential units) in the Commonwealth Development area on
       properties that the Village concluded were benefitted under the recapture agreement and
       related ordinance. While the Village’s counterclaim against the Rhoads Defendants may not
       have been the optimal situation, we are persuaded by the record that the Village had no
       choice but to assert what it believed were its rights under the agreement, to preserve its
       claims for recovery, and to protect its interests to ensure that the Rhoads Defendants paid its
       litigation costs, particularly since the record contains correspondence from the Rhoads
       Defendants to the Village questioning whether it was required to pay the Village’s attorney
       fees in light of certain events.
¶ 37        Similarly, the record persuades us that the Village had no choice but to seek a judicial
       declaration concerning its authority to vacate the subject property and seek compensation
       from Hartz pursuant to the relevant ordinance, which the Rhoads Defendants challenged.
       Indeed, the real conflict appears to stem from the Rhoads Defendants objecting to the Village
       allowing Hartz, another developer, to construct townhomes in the area and refusing to take
       their side (in the manner the Rhoads Defendants desired) in the developers’ controversy
       about the recapture agreement when the negotiations between them collapsed. We disagree
       with the Rhoads Defendants that the Village created the conflict in order to excuse them from
       the clear and unambiguous duty to indemnify the Village.
¶ 38        Based upon the foregoing, we find the trial court properly upheld summary judgment for
       the Village in declaring that the Rhoads Defendants had to pay its litigation costs and
       attorney fees incurred in the instant litigation, including for defending Hartz’s challenge to
       the recapture agreement (upheld on appeal) and count I of the Rhoads Defendants’ amended
       counterclaim. While the trial court’s memorandum and order only referred to the costs
       incurred for the Hartz appeal and asserting count I of the Village’s amended counterclaim
       incurred as of that time, its reasoning (as does our analysis) extends to indemnification for
       any and all attorney fees and costs the Village has incurred and will incur during the course

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       of the Hartz litigation, including asserting its counterclaim against the Rhoads Defendants,
       as requested in count II of its amended counterclaim.

¶ 39                          B. Village’s Authority to Vacate Property
¶ 40       Next, in count III of the Rhoads Defendants’ amended counterclaim, they challenge the
       Village’s authority to vacate certain property (part of 50th Street, 52nd Street, and
       Commonwealth Avenue, referred to as Outlot A, a/k/a Outlot D-3 by the Village) and sell
       the property to Hartz for compensation under the Waterford Ordinance. The Rhoads
       Defendants argue the Village’s attempt to convey the property, which it failed to accept after
       over 115 years with no improvements, is ineffective because the property was accepted with
       the sole purpose of immediately transferring the property to Hartz for compensation.
       Consequently, the Rhoads Defendants assert the Village’s attempted conveyance must
       comply with the cy pres doctrine. In its motion for reconsideration before the trial court, the
       Village sought to clarify the trial court’s ruling that the Village had authority to vacate the
       subject property.
¶ 41       However, two issues complicate adjudication of count III of the Rhoads Defendants’
       amended counterclaim. First, the Rhoads Defendants rely upon some of the allegations from
       count II of their amended counterclaim that were incorporated into count III. As the trial
       court pointed out, the allegations in count II, which raised the argument about whether the
       Village properly accepted the property, were dismissed in 2007 on the Village’s pleading
       motion and were not amended. The trial court affirmed the dismissal, with prejudice, in its
       summary judgment ruling; the Rhoads Defendants have not appealed the dismissal. Second,
       the Village requests clarification of the court’s prior ruling in the December 2009
       memorandum and order regarding its authority to vacate the subject property. Consequently,
       the trial court, as does this court, will construe count III of the Rhoads Defendants’ amended
       counterclaim as raising a question of law about whether the Village’s action was proper
       under the Code or whether the conveyance was subject to the cy pres doctrine.
¶ 42       As a threshold issue, we address the Rhoads Defendants’ argument that the Plat Act (765
       ILCS 205/3 (West 2008)), and not the Code (65 ILCS 5/11-91-1 (West 2008)), governs how
       the Village should have dealt with the dedicated property. The interpretation of a statute is
       a question of law, which is reviewed de novo. Township of Jubilee v. State, 2011 IL 111447,
       ¶ 23. We review the plain language of the statute in question to ascertain the legislative
       intent. Nowack v. City of Country Club Hills, 2011 IL 111838, ¶ 11.
¶ 43       As the trial court indicated, the Rhoads Defendants agreed that the Code provision (65
       ILCS 5/11-91-1 (West 2008)) grants municipalities the authority to vacate certain streets
       without court approval. However, the Rhoads Defendants did not believe that the Code
       applied to the conveyance at issue and argued in their reply brief that the “[C]ode clearly
       does not apply to our facts.” Yet, the Rhoads Defendants fail to cite any dispositive authority
       or assert any persuasive reasoning supporting their belief the Code is inapplicable to the facts
       here. While the Rhoads Defendants’ brief contains a passing reference to the Code provision
       referring to real property acquired by eminent domain, the title of the Code division here
       refers to “Vacating of Streets and Alleys” and contains no language specifically limiting its


                                                -12-
       applicability to property acquired under eminent domain powers. Likewise, the reply brief’s
       attempt to distinguish the Code provision fails to overcome our interpretation.
¶ 44        Additionally, just like the Code provision considered in the Hartz appeal (see Hartz, 391
       Ill. App. 3d at 80), the plain language of section 11-91-1 of the Code also suggests the
       legislature did not intend to place restrictions on municipalities like the Village to vacate
       property once determining the vacating of the street will serve the public interest. See 65
       ILCS 5/11-91-1 (West 2008) (“Whenever the corporate authorities of any municipality ***
       determine that the public interest will be subserved by vacating any street or alley, or part
       thereof, within their jurisdiction ***, they may vacate that street or alley, or part thereof, by
       ordinance” and “The determination of the corporate authorities *** is conclusive, and the
       passage of such an ordinance is sufficient evidence of that determination ***.”). Even if the
       Village did not make any improvements to the vacated property, that does not negate the
       broad grant of authority conferred to the Village by the Code. Accordingly, section 11-91-1
       of the Code governs and grants the Village authority to vacate the subject property by
       ordinance. Thus, we find the cy pres doctrine is inapplicable to the Village’s action in
       vacating the subject property for Hartz’s purchase.
¶ 45        Given our conclusion that the Code governed the Village’s action in the relevant
       ordinance, we need not address the Village’s additional argument that the Rhoads Defendants
       are estopped from challenging the Village’s action. We note that the Rhoads Defendants did
       not respond to the estoppel arguments in the trial below, as the Village noted in its response
       brief with this court. Yet, this silence appears to be a litigation strategy, rather than a
       concession to the Village’s position. Consequently, we find summary judgment was properly
       granted to the Village on count III of the Rhoads Defendants’ amended counterclaim.

¶ 46                                 C. Dedication of Outlot A
¶ 47       Lastly, the Rhoads Defendants argue that the trial court erroneously ruled they were
       required to dedicate certain property commonly referred to as Outlot A, which the Village
       states is also known as Outlot D-3, to the Village as part of the PUD referenced in Ordinance
       No. 04-2311. On the Village’s motion for summary judgment at issue, the trial court initially
       denied the Village’s motion, finding the plat attached to the Village’s motion in the record
       was unclear in showing that the two parcels were the same property and that the ordinance
       and resolution constituted a binding contract between the Village and the Rhoads
       Defendants. Additionally, the trial court concluded that material facts existed about whether
       the Village demonstrated the Rhoads Defendants had benefitted from the ordinance and
       unjust enrichment applied. Further, the court stated the Village failed to adequately address
       the ultra vires affirmative defense.
¶ 48       On the Village’s motion to reconsider, the Village submitted the unrefuted affidavit of
       Martin Scott, its director of community development, with plats and maps attached,
       indicating the Rhoads Defendants had received permits as a part of the Commonwealth PUD
       contemplated in Ordinance No. 04-2311. Additionally, the record indicates, and the trial
       court also noted, that the Rhoads Defendants admitted during oral argument at the hearing
       on the Village’s motion for partial summary judgment that it received the benefits mentioned


                                                 -13-
       in Ordinance No. 04-2311.
¶ 49        There is case law substantiating a developer waives any complaints imposed by the
       municipality when the developer accepts an ordinance’s benefits. In Plote, Inc. v. Minnesota
       Alden Co., 96 Ill. App. 3d 1001, 1002 (1981), the developer, Minnesota Alden, sought to
       enjoin the Village of Schaumburg from seeking sums purportedly due under the terms of an
       ordinance involving the developer’s PUD. After the ordinance, which reclassified property
       to allow construction of the PUD on the property, was passed, building permits were issued
       and construction for the PUD proceeded. Id. Subsequently, the developer experienced
       financial issues that caused it to convey the PUD to a land trust in settling a foreclosure
       action. Id. The Plote court cited Zweifel Manufacturing Corp. v. City of Peoria, 11 Ill. 2d
       489 (1957), in which our supreme court held the petitioners in that case had waived
       objections to certain conditions imposed in a zoning variation by accepting the benefits of
       the variation. Plote, 96 Ill. App. 3d at 1003 (citing Zweifel, 11 Ill. 2d at 493-94).
¶ 50        The Rhoads Defendants insist that Outlot A and Outlot D-3 are two different parcels of
       property, thus creating a genuine issue of material fact that precludes summary judgment for
       the Village. However, their argument is primarily based on plats that are admittedly not in
       the record. On December 22, 2011, the Rhoads Defendants filed a motion to supplement the
       record on appeal with plats recorded with the Cook County recorder of deeds that they sought
       this court to take judicial notice of and admit as evidence to support their contention. The
       Village filed a response opposing the motion, arguing in pertinent part that the Rhoads
       Defendants’ submission failed to meet the standards under Illinois Supreme Court Rule 329
       (eff. Jan. 1, 2006) and they failed to submit the documents to the trial court for consideration.
       It is axiomatic that this court may not consider documents that are not part of the certified
       record on appeal. See Kensington’s Wine Auctioneers & Brokers, Inc. v. John Hart Fine
       Wine, Ltd., 392 Ill. App. 3d 1, 14 (2009). Accordingly, we have denied the Rhoads
       Defendants’ motion and will not consider the documents attached to their motion in
       considering the merits.
¶ 51        Alternatively, the Rhoads Defendants argue the record contains plats creating a genuine
       issue of material fact. In viewing the record, including the plat specifically identified by the
       Rhoads Defendants’ counsel at oral argument here, we disagree with the Rhoads Defendants.
       The record, particularly the ordinance at issue, consistently identifies Outlot A and Outlot
       A-3 as property being approximately 3,000 square feet. Thus, regardless of the name given
       to the property, the unchanged property description is the overriding consideration.4
¶ 52        Furthermore, we agree with the trial court that the Rhoads Defendants have waived any
       complaints about the required dedication as they undisputedly received the benefits of the
       ordinance that enabled their construction of the Commonwealth Development. Hence, the
       Rhoads Defendants have to dedicate Outlot A, also referred to as Outlot D-3, to the Village
       as required by Ordinance No. 04-2311 and Resolution No. 06-915. Accordingly, we find that


               4
                If the Rhoads Defendants prepared a plat dedicating property that did not match the
       description in Ordinance No. 04-2311, we consider the Rhoads Defendants hard-pressed to claim
       a mistake now after admittedly accepting the benefits from said ordinance.

                                                 -14-
       summary judgment to the Village on count III of its amended counterclaim was proper.

¶ 53                                    III. CONCLUSION
¶ 54       In sum, we find the indemnification clause in the recapture agreement unambiguously
       obligates the Rhoads Defendants to reimburse the Village for its attorney fees and costs
       incurred in defending itself and its interests in the underlying suit, including asserting the
       related counterclaims. Implying a duty of cooperation would violate the plain language of the
       parties’ agreement and well-established contract interpretation rules. Additionally, we find
       the Village had authority to vacate the subject property in accordance with the Code (65
       ILCS 5/11-91-1 (West 2008)) and to allow Hartz to purchase said property as reflected in
       Ordinance No. 05-2358. Finally, we find the Rhoads Defendants failed to establish a genuine
       issue of material fact to preclude summary judgment for the Village requiring the Rhoads
       Defendants to dedicate the subject property as a condition in receiving the benefits afforded
       to them by Ordinance No. 04-2311. Accordingly, based upon the foregoing, we affirm the
       judgment of the circuit court of Cook County.

¶ 55      Affirmed.




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