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HomeMy WebLinkAbout09-254Resolution No. 09-254 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH THE INSTITUTE OF ISLAMIC EDUCATION FOR PURCHASE OF BURIAL SPACES AT BLUFF CITY CEMETERY BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute an Agreement with the Institute of Islamic Education for the purchase of burial spaces at Bluff City Cemetery on behalf of the City of Elgin, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: December 2, 2009 Adopted: December 2, 2009 Omnibus Vote: Yeas: 7 Nays: Attest: s/ Diane Robertson Diane Robertson, City Clerk AGREEMENT THIS AGREEMENT is made and entered into at Elgin, Illinois this 6�'X"*&day of 2009, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City") and the Institute of Islamic Education, a religious not -for - profit corporation duly -organized and exiting under and by virtue of the laws of the State of Illinois (hereinafter referred to as "IIE"). WITNESSETH WHEREAS, the City is the owner of certain lands acquired by it for cemetery uses and now being operated as a city cemetery known and designated as Bluff City Cemetery, being a part of Section 19 in Hanover Township, Cook County, Illinois (hereinafter referred to as the "Cemetery"); and, WHEREAS, the City is authorized under the Elgin Municipal Code to sell lots and graves, either by cash or by contract in installment payments, to such persons or entities offering to purchase the same under the terms and conditions authorized by the ordinances of the City; and, WHEREAS, Chapter 2.24 of the Elgin Municipal Code further authorizes the City to enter into contracts for the sale of tracts of lots or graves in accordance with the terms and conditions determined by the City Council; and, WHEREAS, IIE desires to purchase approximately 1.33 acres of an undeveloped portion of the southeast section of the Cemetery (hereinafter referred to as the "Subject Property"), said area to accommodate approximately 1,500 burial places, for the purpose of providing a designated area in said Cemetery for use as a burial place exclusively for persons entitled to be buried in the IIE cemetery in conformity with the requirements of the IIE faith, subject nevertheless to all rules and regulations of the Cemetery and ordinances of the City; and, WHEREAS, the Subject Property is located at the southwest comer of Gifford Road and Whitcomb Avenue; and, WHEREAS, IIE further desires to acquire an option to purchase an additional 1,500 burial spaces in an area located south of and adjacent to the Subject Property (hereinafter referred to as the "Additional Property"); and, WHEREAS, the City has agreed to convey the Subject Property to IIE, and to grant to IIE an option to purchase the Additional Property, all in accordance with and subject to the terms, conditions and limitations of this Agreement and the City's ordinances and regulations. NOW, THEREFORE, for and in consideration of the mutual covenants, and obligations contained herein and other good and valuable consideration received by each party, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. The foregoing recitals are hereby incorporated into this Agreement in their entirety. 2. That upon the making of payments and the performance and satisfaction of the covenants and conditions on the part of IIE to be made and performed herein, and at such time or times, upon the terms and conditions, and in the manner provided for herein, and further subject to the provisions and requirements of all present ordinances and ordinances hereafter adopted by the City pertaining to the use of land for burial purposes in said Cemetery, the City hereby covenants and agrees to grant, bargain, sell, convey and assure to IIE, by cemetery deed, the right to use the Subject Property as burial space for the burial and interment of human dead, said property being the following described lots or graves situated in Bluff City Cemetery, Hanover Township, Count of Cook and State of Illinois, to -wit: THAT PART OF LOT 17 OF THE COUNTY CLERK'S SUBDIVISION OF PART OF SECTION 19, TOWNSHIP 41 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, COOK COUNTY, ILLINOIS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WEST LINE OF GIFFORD ROAD AND THE SOUTH LINE OF WHITCOMB AVENUE, THENCE SOUTHERLY ALONG THE WEST LINE OF GIFFORD ROAD A DISTANCE OF 195.00 FEET, THENCE WESTERLY PARALLEL WITH THE SOUTH LINE OF WHITCOMB AVENUE A DISTANCE OF 309.00 FEET, THENCE NORTHERLY PARALLEL WITH THE WEST LINE OF GIFFORD ROAD A DISTANCE OF 195.00 FEET TO A POINT ON THE SOUTH LINE OF WHITCOMB AVENUE, THENCE EASTERLY ALONG THE SOUTH LINE OF WHITCOMB AVENUE A DISTANCE OF 309.00 FEET TO THE POINT OF BEGINNING, SITUATED IN THE CITY OF ELGIN, COOK COUNTY, ILLINOIS. It is expressly understood and agreed that the purchase of the Subject Property by IIE for the amount set forth herein does include both the purchase price of the Subject Property and also the cost of providing perpetual care for the same in the manner now being offered by the City under the terms and provisions of its customary and established form Perpetual Care Agreement now in use, or which may hereafter be in use, by the City under its ordinances regulating the operations of the Cemetery. 3. IIE hereby covenants and agrees to pay to the City for the Subject Property, at the office of the City's Director of Finance, the sum of Six Hundred Thirty Thousand and no/100 Dollars ($630,000.00) in the following manner: The sum of Seventy -Eight Thousand Seven Hundred Fifty and no/100 Dollars ($78,750.00) shall be paid to the City upon the signing and delivery of this Agreement, and the remaining balance of Five Hundred Fifty -One Thousand Two Hundred Fifty and no/100 Dollars ($551, 250.00) shall be paid to the City in twenty-one (21) consecutive payments of Twenty -Six Thousand Two Hundred PA Fifty and no/100 Dollars ($26,250.00) payable on the 15th day of April, August and December of each year, to begin in April of 2010, and continuing for three (3) such payments in each of the years 2010, 2011, 2012, 2013, 2014, 2015 and 2016, with the final payment payable on December 15, 2016. IIE reserve the privilege of making prepayments of principal hereon, in full or in part, in amounts equal to one or more of the installments on any of the foregoing April, August or December dates. 4. It is hereby further agreed by and between the parties hereto that said lots and graves which comprise the Subject Property, above -described and being purchased by IIE hereunder, shall be designated on the plat of said Cemetery and known as "Islamic Section of Bluff City Cemetery," it being farther expressly understood and agreed that IIE will not locate or display any markers, monuments or signs within or along the boundaries of such section for the purpose of identifying the same without first obtaining the written consent of the City thereto as to type, size, design and location of such markers, monuments or signs, that all grave markers in said section shall be of a flat or flush type and shall conform with the rules and regulations of the Cemetery, and that IIE will not establish any fences or other physical barriers separating said section from the remainder of such Cemetery, except a shrub or hedge row may be installed upon the prior written consent of the City of such height, type and design as shall be harmonious and conform with the general landscaping and rules and regulations of said Cemetery. 5. It is further understood and agreed that it is the express intention and purpose of IIE to acquire the Subject Property for the burial and internment of only those persons who are entitled to be buried in an Islamic Cemetery, and to resell said lots or graves in single or multiple lots or grave units to members of its congregation or other persons entitled to be buried in an Islamic Cemetery, upon such terms of payment therefore as IIE shall from time to time hereafter fix and determine. In furtherance of said express purpose of IIE hereinabove in this paragraph set forth, but subject, nevertheless, to the ordinances, rules and regulations of the City governing the operations of the Cemetery, IIE hereby expressly reserves the following rights and privileges: (1) to request and receive cemetery deeds conveying and transferring lots or graves directly to it under this Agreement, subject to the usual transfer fees imposed by the City; (2) to direct the City to issue cemetery deeds for lots or graves to the nominee or nominees of IIE; (3) to reassign to the City deeds to any lots conveyed to it by the City and designate the reissuing of a cemetery deed or deeds to subsequent purchasers thereof from IIE; (4) to reserve the first option to repurchase from the owner thereof, any lot, lots, grave or graves in said section at the same selling price as IIE shall then be offering to sell other comparable lots within said section; (5) to require written consent and approval by IIE to the transfer of ownership at any time hereafter, of all lots within the Subject Property; and (6) to require the consent of IIE by its proper officer, before issuing a burial permit or permitting the internment of any person in any lot or grave within the Subject Property. 6. It is further expressly understood and agreed that said section of cemetery lots being sold hereunder will accommodate One Thousand Five Hundred (1,500) burial spaces, and that the purchase price provided for in Section 3 above has been determined and agreed upon on the basis of each burial space at a price of Four Hundred Twenty and no/100 Dollars ($420.00) 3 per space for a total purchase price of Six Hundred Thirty Thousand and no/100 Dollars ($630,000.00), including perpetual care, and that, from time to time hereafter, upon the written direction of and request of IIE, and to the extent that graves being sold hereunder shall be fully paid for, at the rate of cost for each grave hereinabove in this paragraph mentioned, the City will immediately cause separate cemetery deeds to be executed and delivered transferring all interest in such graves for burial purposes to IIE or its nominee or nominees together with separate agreements in the form in general use by City at such time or times for providing perpetual care for such lots or graves to be so transferred. It is expressly understood and agreed that the conveyance of burial spaces and said burials shall proceed in a systematic and orderly manner to commence at the north end of the Subject Property and to proceed either east to west or west to east. 7. In the event of a breach of any of the aforesaid covenants and conditions, or of the failure of IIE to make any of the payments provide for herein, or any part thereof, at the time and in the manner specified herein, and said default shall continue for thirty (30) days, the City shall have the right to thereupon immediately execute and deliver to IIE, or its nominee or nominees, cemetery deeds, together with agreements for perpetual care, for any graves to which IIE shall then be entitled in accordance with the provisions of Section 6 of this Agreement, and this Agreement shall then, at the option of the City, be terminated, and the City shall have the right to re-enter and take possession of all of the remaining lots or graves included in the sale described herein that shall or may be vacant or unoccupied at the time of such re-entry and for which cemetery deeds have not been executed and delivered to IIE or its nominees. In the event that the City terminates this Agreement in accordance with this Section 7, a written notice of such termination and re-entry served upon IIE by registered mail, addressed to it at its office at 1048 Bluff City Boulevard, Elgin, Illinois, and recorded in the Recorder's Office of said County shall be sufficient evidence of said election, termination and re-entry. In the event of any such breach or default, the City shall have the right, at its own election, to grant an extension or extensions of the time or times for remaining payments hereunder or to cure any default, provided, however, that the acceptance of such payments or the permitting of an opportunity to cure a default does not constitute a waiver of any rights of the City and shall not waive the right of the City to demand strict compliance with the terms of this Agreement and the timely payment of further installments. The remedy in this paragraph is cumulative, and shall not be exclusive of or otherwise prejudice the City's right to pursue any other rights, remedies and benefits allowed by law. 8. It is further expressly understood and agreed by and between the parties hereto that City shall develop the Subject Property, to include the removal of trees, surveying, grading, seeding and establishing roadway for access. Any additional improvements, development and landscaping of the Subject Property requested by IIE, if any, shall be harmonious with and in conformity with the general plan and scheme of Bluff City Cemetery. In furtherance of this objective, any additional improvements, development and landscaping in Subject Property shall require the approval of the City prior to the commencement of said additions or alterations. The City shall perform all such additional improvements, development and landscaping the Subject Property, and IIE shall compensate the City for the costs of said additional improvements, development and landscaping prior to the City initiating work on said improvements, development and landscaping. In the event that this Agreement is terminated in accordance with 0 Section 7, IIE shall reimburse the City its costs for the initial development of those portions of the Subject Property that have been conveyed to IIE under this Agreement. The remedy in this paragraph is cumulative, and shall not be exclusive of or otherwise prejudice the City's right to pursue any other rights, remedies and benefits allowed by law. 9. (a) The parties hereby further agree that IIE is hereby granted an option to purchase and a right of first refusal to purchase lots and graves within a section of the Cemetery located south of and adjacent to the Subject Property, said section consisting of One Thousand Five Hundred (1,500) additional burial spaces (hereinafter referred to as the "Additional Property"). Such Additional Property is described as follows: THAT PART OF LOT 17 OF THE COUNTY CLERK'S SUBDIVISION OF PART OF SECTION 19, TOWNSHIP 41 NORTH, RANGE 9 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE CITY OF ELGIN, COOK COUNTY, ILLINOIS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WEST LINE OF GIFFORD ROAD AND THE SOUTH LINE OF WHITCOMB AVENUE, THENCE SOUTHERLY ALONG THE WEST LINE OF GIFFORD ROAD A DISTANCE OF 195.00 FEET TO THE POINT OF BEGINNING, THENCE SOUTHERLY ALONG THE WEST LINE OF GIFFORD ROAD A DISTANCE OF 195.00 FEET, THENCE WESTERLY PARALLEL WITH THE SOUTH LINE OF WHITCOMB AVENUE A DISTANCE OF 309.00 FEET, THENCE NORTHERLY PARALLEL WITH THE WEST LINE OF GIFFORD ROAD A DISTANCE OF 195.00, THENCE EASTERLY PARALLEL WITH THE SOUTH LINE OF WHITCOMB AVENUE A DISTANCE OF 309.00 FEET TO THE POINT OF BEGINNING, SITUATED IN THE CITY OF ELGIN, COOK COUNTY, ILLINOIS. The option to purchase such Additional Property and the right of first refusal to purchase such Additional Property hereby granted to IIE shall be for a period commencing upon the execution of this Agreement and expiring without further action of the parties at 4:00 p.m. C.S.T. on May 15, 2018. (b) In the event IIE elects to exercise its option to purchase the Additional Property, it shall so notify the City in writing. In the event IIE fails to notify the City prior to the expiration of the option to purchase at 4:00 p.m. C.S.T. on May 15, 2018, then IIE's option to purchase such Additional Property shall be deemed terminated and without further effect without further action of the parties. In the event IIE fails to notify the City of its election to exercise its option to purchase the Additional Property prior to the City notifying IIE of an offer to purchase some or all of the Additional Property as provided in Section 9(c) hereof, then IIE's option to purchase such Additional Property shall be deemed terminated in favor of IIE's right of first refusal to purchase the Additional Property. The parties further agree that in the event that IIE elects to exercise its option to purchase the Additional Property, the parties shall thereafter in a timely manner attempt to negotiate the terms of sale for such Additional Property. In the event the parties are unable to agree on the specific terms of such a real estate contract for the 61 Additional Property within sixty (60) days following receipt of a notice to exercise its option to purchase the Additional Property then IIE's option to purchase the Additional Property shall be terminated and without further effect. (c) In the event the City has a purchaser for any or all of the Additional Property at any time prior to May 15, 2018, and IIE has not previously notified the City of its election to exercise its option to purchase the Additional Property, the City shall notify IIE in writing of such other purchaser. IIE shall be required to notify the City in writing within fifteen (15) days from the date of such notice as to whether IIE wishes to exercise its right of first refusal to purchase the Additional Property. IIE and the City shall thereafter commence negotiations to enter into a contract for the purchase of the Additional Property within thirty (30) days of such notice by IIE of its election to exercise its right of first refusal. The terms of the contract between the City and IIE shall be substantially as set forth in the proposed contract between the City and the other proposed purchaser. In the event the City and IIE are unable to agree on the specific terms of such agreement and enter into the same within thirty (30) days from the date of IIE's notice of its election to exercise its rights of first refusal to purchase such Additional Property, then IIE's right of first refusal shall be deemed terminated and without further effect without further action of the parties. 10. IIE agrees to conform to the rules and regulations now in effect or to be hereafter regularly adopted in the operation of said Cemetery with regard to graves, markers, burials and the general use, otherwise, of said Cemetery, provided, however, that IIE may adopt its own rules and regulations, which shall not conflict with the ordinances, rules and regulations of the City. 11. It is further expressly understood and agreed that IIE shall at all times hereafter advise the City Clerk of the City of Elgin, Illinois in writing of the name or names of its proper officer or officers who are duly -authorized on behalf of IIE to consent to assignment or transfer of lots included in the within purchase, or consent to the issuing of burial permits for the use of graves in the section being sold hereunder as hereinabove provided for. 12. Each provision of this Agreement shall be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited or deemed invalid under applicable law, it shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 13. This Agreement and the rights and privileges contained herein are personal to IIE and IIE agrees that it shall not assign, mortgage, pledge or transfer this Agreement or any other right, privilege or license conferred by this Agreement, either in whole or in part, or sublet or permit the use of the Subject Property or the Additional Property by another, or in any manner encumber the Subject Property or the Additional Property or any part thereof, in a manner not explicitly set forth in this Agreement without obtaining in advance the written consent of the City, which may be withheld for any reason whatsoever. Any attempt by IIE to assign this Agreement without such written consent will automatically terminate the Agreement and any rights and privileges granted to IIE hereunder. 1.1 14. In the event of termination of this Agreement, IIE shall not be entitled to receive a refund of any portion of the consideration paid for this Agreement, nor shall IIE be entitled to any compensation or reimbursement for any costs or expenses incurred in any way arising from this Agreement, nor any monetary damages of any kind whatsoever, IIE's sole remedy being the receipt of cemetery deeds for that consideration already paid in accordance with Section 7 of this Agreement. 15. IIE shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Subject Property or the Additional Property and IIE's use thereof. IIE agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Subject Property or the Additional Property described herein, that IIE will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that IIE will keep the same in full force and effect during the term of this Agreement. IIE shall perform under this Agreement in accordance with all applicable legal requirements. 16. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to IIE for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by IIE against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of IIE related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from IIE reasonable interest and attomey's fees. 17. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt requested, addressed as follows: To the City: Superintendent of Parks City of Elgin 150 Dexter Court Elgin, IL 60120-5555 With a copy to: Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 To IIE: President Institute of Islamic Education 1048 Bluff City Boulevard Elgin, Illinois, 60120 With a copy to: Director Institute of Islamic Education 1048 Bluff City Boulevard Elgin, Illinois, 60120 7 Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 18. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 19. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 20. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and IIE, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 21. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this Agreement shall remain in full force and effect. 22. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be exclusively in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 23. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 24. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 25. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 26. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 27. This Agreement may be changed, modified or amended only by a duly -authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly - authorized and executed amendment hereof. 0 28. This Agreement is authorized pursuant to Chapter 2.24 of the Elgin Municipal Code, 1976 as amended. 29. This Agreement has been entered into by the City pursuant to a resolution duly - adopted by the City Council of the City of Elgin, Illinois, at a regularly held meeting of said City Council. 30. This Agreement has been entered into by IIE pursuant to a resolution duly - adopted at a regularly held meeting of its Board of Directors. SIGNATURE PAGE TO FOLLOW 0 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized representative as of the day and year first above written. CITY OF ELGIN INSTITUTE OF ISLAMIC EDUCATION By: C'pVA Mayor P Name: Py oigAm✓rm 0 A . ;gLam fRa5l1)rNTo( mE Its: INKITUPE OF ISI.AMIC EDUCATION 1048 iLUF I'PYBFV— ELGIN IL 60120 ATTEST: ATTEST: By: City Clerk 10