HomeMy WebLinkAbout10-29 Resolution No. 10-29
RESOLUTION
AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT
WITH COMMUNITY COLLEGE DISTRICT NO. 509
(Elgin Community College Relating to the Artspace Project)
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 Intergovernmental Agreement with Community College District No.509 on behalf of the
City of Elgin for the exchange of real estate and improvements, a copy of which is attached hereto
and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: January 27, 2010
Adopted: January 27, 2010
Vote: Yeas: 5 Nays: 1
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
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1/21/10 (2)
INTERGOVERNMENTAL AGREEMENT BETWEEN COMMUNITY
COLLEGE DISTRICT NO. 509 AND THE CITY OF ELGIN FOR THE
EXCHANGE OF REAL ESTATE AND IMPROVEMENTS
THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into as of
January 27, 2010, between COMMUNITY COLLEGE DISTRICT NO. 509, an Illinois
Community College, 1700 Spartan Drive, Elgin, Illinois 60123 (herein `BCC'), and the CITY
OF ELGIN, an Illinois Municipal Corporation, 150 Dexter Court, 60120 (herein the "CITY"),
herein sometimes collectively referred to as the"Parties."
In consideration of the mutual promises contained herein, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Agreement pursuant to Article VII, Section 10 of the Constitution of the State of
Illinois, the Local Government Property Transfer Act. 50 ILCS 605/0.01 et seq., and the
Intergovernmental Corporation Act, 5 ILCS 220/5 et. seq.
WITNESSETH:
WHEREAS, it is in the best interest of the CITY and ECC to enter into this Agreement and
undertake to perform the obligations herein provided; and
WHEREAS, ECC is the owner of certain lands and improvements having a common address of
51 South Spring St. Elgin,Kane County, Illinois 60120-6420 which real estate,together with all
buildings,improvements, easements, appurtenances and benefits pertaining thereto being
hereinafter referred to collectively herein as the"Fountain Square Parcel", legally described on
Exhibit A attached hereto and consisting of tax parcel number: 06-13-305-001; and,
- WHEREAS, the CITY wishes to acquire such land and improvements for certain development
purposes to take place as a part of an Agreement it has entered into or plans to enter into with
ArtSpace, Inc.; and,
WHEREAS, ECC agrees to transfer to the CITY such land and improvements for its use as it
sees fit,pursuant to the terms and conditions set forth in this Agreement; and,
WHEREAS, the CITY is the owner of certain lands located within the City, situated in Kane
County, Illinois, currently being used as part of its Spartan Meadows Golf Course and consisting
of:
1. A 16 acre parcel bordering the south side of Spartan Drive and its extension and
contiguous to the west to property acquired by ECC from the City and improved in
part with a building and parking lot referred to herein as the "Exchange Parcel" and
Page 1
as depicted and labeled as "16AC" in the aerial photo attached as Exhibit B and
legally described in Exhibit"B-1"
2. A parcel of approximately 22 acres bordering the south side of Spartan Drive and
situated immediately to the east of the parcel described in subparagraph 1, above, for
which ECC desires certain"rights of first negotiation,"referred to herein as the"ECC
RFN Parcel," and as depicted and labeled as "ECC Right of First Refusal" in the
aerial photo attached as Exhibit B and legally described in Exhibit`B-2"
3. A parcel of approximately 19 acres bordering the south side of Spartan Drive and
. situated immediately to the east of the parcel described in subparagraph 2, above,
referred to herein as the "Potential Commercial Parcel," and as depicted and labeled
as "Potential Commercial" in the aerial photo attached as Exhibit B and legally
described in Exhibit `B-3"
WHEREAS, ECC wishes to accept conveyance of the land, building and the improvements
located thereon, identified as the Exchange Parcel, and to acquire a right of first negotiation in
the adjacent ECC RFN Parcel for Community College purposes, subject to and pursuant to the
terms and conditions of this Agreement; and,
WHEREAS, the CITY agrees to transfer to ECC good, merchantable andhacceptable title to the
Exchange Parcel real estate and improvements and to grant a right of first negotiation in the
adjacent ECC RFN Parcel in exchange for and in consideration of the transfer by ECC to the
City of good, merchantable and acceptable title to the Fountain Square Parcel described in
Exhibit A;
NOW, THEREFORE, it is hereby mutually agreed by and between the CITY and ECC as
follows:
1. RECITALS. The recitals set forth above are deemed to be a material part of this
Agreement and are hereby incorporated by this reference.
2. VALUE OF REAL ESTATE AND IMPROVEMENTS: It is agreed by the City
that value of the Fountain Square Parcel including all real estate and improvements as identified
on Exhibit A is $2,600,000.00 Dollars and it is agreed by ECC that the value of the Exchange
Parcel including all real estate and improvements legally described in Exhibit B-1, together with
the additional benefit of the right of first negotiation to the ECC RFN Parcel legally described in
Exhibit B-2 is$2,600,000.00 Dollars and that the exchange is therefore of parcels of equal value.
3. MUTUAL OBLIGATIONS OF ECC AND CITY. Upon execution of this
Agreement,ECC, and CITY shall undertake the following actions:
A. The Parties shall execute the "ECC REAL ESTATE SALE AGREEMENT" in
form as attached as Exhibit "C" to this Agreement for the conveyance of title to
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the Fountain Square Parcel described on Exhibit A from ECC to the CITY by
Special Warranty Deed.
B. The Parties shall execute the "CITY REAL ESTATE SALE AGREEMENT" in
form as attached as Exhibit "D" to this Agreement for the conveyance by Special
Warranty Deed of the Exchange Property legally described in Exhibit `B-1" from
the CITY to ECC, along with the grant of a Right of First Negotiation ("RFN") to
ECC for the ECC RFN Parcel, legally described in Exhibit B-2, such RFN to be
in the form attached as Exhibit"E".
C. The CITY and ECC agree that after the conveyance of the Exchange Parcel
described in Exhibit B-1 to ECC the CITY may desire to remove certain
restrictions imposed by the State of Illinois(the"State Restrictions") affecting the
Potential Commercial Parcel and amend the zoning of the Potential Commercial
Parcel to allow Commercial use of that Parcel. At the request of the CITY ECC
agrees to support the removal of the State Restrictions affecting the Potential
Commercial Properties and otherwise agrees to cooperate with the CITY in such
adjustments and amendments, including removal of the State Restrictions and the
rezoning of the Potential Commercial Parcel to commercial zoning at the request
of the CITY so long as such adjustment results in no net change in acreage owned
by ECC or subject to the RFN.
4. CAPTIONS. The captions used herein have been utilized for convenience only
and are not intended to modify or limit in any way the provisions hereof.
5. PRIOR AGREEMENTS. This Agreement shall supersede any and all prior
Agreements, whether oral or written, between the parties hereto as to the subject matter of this
Agreement and may only be amended by a written instrument executed by both ECC and the
CITY or their authorized agents.
6. COOPERATION. The parties agree to cooperate with one another and to perform
such functions as are necessary or required by law to effectuate this Agreement.
7. PERFORMANCE. The parties' obligations to perform under the terms of this
Agreement are specifically conditioned upon the performance of all acts required of the parties
by law. This Agreement represents the complete understanding of both parties.
8. TERM. This Agreement shall be in full force and effect until amended or
cancelled by the Parties.
9. INCORPORATION. The terms, conditions, representations and contingencies of
the real estate contracts attached, Exhibits C, D and E, are incorporated herein and made a part
hereof as if set forth in full. The contingencies set forth in the Agreements shall be contingencies
applicable to the performance of the parties in all aspects of this Agreement.
Page3
10. MISCELLANEOUS.
A. Time is of the Essence.Time is of the essence of this Agreement.
Written Demands. All notices, demands, and requests required or permitted under
this Agreement shall be in writing.
Notices. All notices, demands, and requests required or permitted hereunder shall
be deemed to have been properly made on the day of service if served
personally, and on the second day following mailing if sent by United
States Certified Mail, postage prepaid, return receipt requested, addressed
as follows:
If to the CITY: City of Elgin
Attn: City Manager
150 Dexter Court
Elgin, IL 60120
With a copy to: William A. Cogley, Esq.
Corporation Counsel
150 Dexter Court
Elgin, IL 60120
If to ECC: Elgin Community College
Attn: President
1700 Spartan Drive
Elgin, IL 60123
With a copy to: John F. Early, Esq.
Early, Tousey,Regan&Wlodek
2400 Big Timber Road, Suite 201A
Elgin, IL 60124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
CITY OF ELGIN, an Illinois Municipal Corporation
By:
Mayor
ATTEST:
City Clerk
Page 4
COMMUNITY COLLEGE DISTRICT NO. 509,
an Illinois Community College
D.P're:corm.),.
By:
President
ATTEST:
By: Cd L
Board Secretary A. (2 ._
F:\Legal Dept\Agreement\INTERGOVERNMENTAL AG ECC-Elgin-WAC clean(2)1-21-10.docx
Page 5
A
SCHEDULE OF EXHIBITS
EXHIBIT A FOUNTAIN SQUARE PARCEL
EXHIBIT B AERIAL MAP
EXHIBIT B-1 EXCHANGE PARCEL
EXHIBIT B-2 ECC RFN PARCEL
EXHIBIT B-3 POTENTIAL COMMERCIAL PARCEL
EXHIBIT C ECC REAL ESTATE SALE AGREEMENT
EXHIBIT D CITY REAL ESTATE SALE AGREEMENT
EXHIBIT E RIGHT OF FIRST NEGOTIATION MEMORANDUM
Page 6
1.
FOUNTAIN SQUARE PARCEL
EXHIBIT"A"
Legal description of fee interest in property to be purchased by CITY, the Elgin Community
College Fountain Square Parcel:
Lots 7, 8, 9 and 10, and that part of Lots 5, 6, 11 and 12 lying Southwesterly of
the Southwesterly right-of-way line of the Chicago and Northwestern Railway
Company, all'in Block 12 of the original Town of Elgin, Kane County, Illinois,
including all improvements and structures thereon.
Page 7
AERIAL MAP
EXHIBIT"B"
Aerial photograph of the parcels described herein as Exhibits B-1,B-2 and B-3 (see attachment)
Page 8
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EXHIBIT B•
•
EXCHANGE PARCEL
EXHIBIT`B-1"
Legal description of property to be conveyed by CITY to ECC:
(TO BE INSERTED BY THE PARTIES.BY MUTUAL AGREEMENT AT LATER DATE.)
Page 9
{
ECC RFN PARCEL
EXHIBIT"B-2"
Legal description of property subject to the RFN:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 10
I
1
POTENTIAL COMMERCIAL PARCEL
EXHIBIT"B-3"
Legal description of property of CITY for possible future commercial development:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE)
Page 11
1 I I
EXHIBIT"C"
ECC REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is entered into as of this 27th
day of January 2010, by and between COMMUNITY COLLEGE DISTRICT NO. 509, 1700
Spartan Drive, Elgin, Illinois 60123 (herein the "Seller") and the CITY OF ELGIN, 150 Dexter
Court,Elgin, Illinois 60120(herein the "Purchaser").
1.. PURCHASE AND SALE. Upon and subject to the terms and conditions of this
Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from
Seller,the following described Property(herein collectively called the("Property");
•
a. Land. That certain tract of Property commonly known as 51 South Spring
Street, Elgin, Kane County, Illinois, 60120, Permanent Index No. 06-13-
305-001, being more particularly described on Exhibit A attached hereto
and incorporated herein by reference.
b. Improvements. All improvements in and on the Property, including, but
not limited to, all heating, cooling, plumbing and electrical fixtures, and
all appurtenances relating thereof. The conveyance from Seller to
Purchaser shall not include any personal property on the Property.
c. Appurtenances. All rights, privileges, and easements appurtenances to the
Property, which are owned by the Seller, including without limitation, all
mineral, oil, gas and other hydrocarbon substances on and under the
Property, as well as all development rights, air rights, water, water rights,
and water stock relating to the Property and any other easements,
rights-of-way or appurtenances used in connection with the beneficial use
and enjoyment of the Property including, without limitation, any and all
rights of Seller in and to all roads, alleys, easements, railroad rights of
way, streets and ways adjacent to the Property, and the rights of ingress
and egress thereto from a public street.
2. CONSIDERATION AND CONVEYANCE.
2.1 Purchase Price. The consideration for the Property shall be the conveyance by
Purchaser to Seller at Closing, (as defined in Section 5) by an executed Special Warranty Deed
from the Purchaser to the Seller of the real estate described in Exhibit B-1, in form acceptable to
Seller, and the grant by Purchaser in form acceptable to Seller of a Right of First Negotiation
("RFN") in certain real estate owned by Purchaser legally described on Exhibit B-2, attached
hereto, all of which property the parties agree has a value of Two Million Six Hundred Thousand
Dollars ($2,600,000),the purchase price ("Purchase Price").
Page 12
T.
2.2 Related Transactions. The sale and exchange of the Property as defined herein
shall occur simultaneously with the sale and exchange of the sale and exchange of the other
property described in paragraph 2.1, above, from the Purchaser to Seller ("Purchaser's
Conveyance"), which transaction is described in a relate CITY REAL ESTATE SALE
AGREEMENT of even date herewith between the parties. It is agreed by the parties that the
conveyance of the property of each party to the other is a single transaction and is governed by
the INTERGOVERNMENTAL AGREEMENT between the parties and that both conveyances
must occur for either to occur. If either party elects not to proceed under either agreement within
the times and for the reasons set forth herein, then both agreements shall be null and void.
2.3 Conveyance of Property. Seller shall convey the Property to Purchaser at the
Closing by recordable special warranty deed, subject only to: (a) general real estate taxes not yet
due and payable as of the Closing; (b) public utility easements; (c) zoning laws, statutes and
ordinances; and(d) covenants, conditions and restrictions of record, if any, which do not prohibit
or unreasonably restrict the Purchaser's intended use of the Property.
2.4 Proration. The parties understand and agree that the Property is currently exempt
from general real estate taxes. In the event general real estate taxes are assessed against the
Property prior to the Closing, such general real estate taxes for the Property shall be prorated as
of the date of the Closing.
3. PURCHASER'S REVIEW.
3.1 Seller's Obligations. Seller shall deliver to Purchaser (at Seller's expense), within
60 days after the date hereof, the following documents(the "Review Documents").
a. Title Commitment Coverage. Commitment for an Owner's Policy of Title
Insurance ("Title Commitment") on the Property, with an extended
coverage endorsement,which may be in nominal amount, issued by a Title
Company licensed to do business in Illinois and legible copies of any
restrictive covenants, easements and other items listed as title exceptions
therein. Additional endorsements may be requested by Purchaser at
Purchasers cost. The Title Commitment shall show title in Seller subject
only to: (a) title exceptions set forth in paragraph 2.3 of this Agreement;
(b)title exceptions pertaining to a lien or encumbrances of a definite or
ascertainable amount which may be removed by the payment of money at
the time of closing and which Seller shall so remove at that time; and
(c)other matters of title over which the title company is willing to insure
without cost to the Purchaser.
b. Survey. A survey prepared in accordance with the Standards for Land
Title Surveys of American Land Title Association and American Congress
on Surveying and Mapping promulgated in 1992 ("ALTA Survey"),
currently certified by a registered Illinois land surveyor reasonably
Page 13
•, ,
acceptable to Buyer and sufficient to enable the title insurance company to
give coverage over matters of survey, showing the exact boundaries, legal
description and acreage contained within the Property, designating all
improvements, showing no fencing or other improvements of every kind
which might constitute encroachments in either direction over the
boundaries, all public or private utility or drainage easements or easements
of record disclosed by the public records. The ALTA Survey shall
identify the Property thereof by legal description and set forth the gross
acreage thereof and shall identify; (i) land used, dedicated or subject
easements for roads and highways, (ii) existing storm water detention or
drainage easements or rights; and (iii) any flood plain, flood ways,
wetlands other special environmentally protected areas; and shall
otherwise be reasonably satisfactory in form and substance to Buyer. In
the event the legal description of the Property contained on the Survey •
differs from the legal description attached to this Agreement, the legal
description contained on the Survey shall be incorporated into this
Agreement and used on the Title Commitment and all closing documents.
c. Licenses. Copies of all licenses, certificates of occupancy and other
governmental licenses or approvals relating to any portion of the Property.
d. Studies. Studies, reports, maps, environmental reports, soil tests results,
engineering reports, traffic, flood control, drainage plans and any and all
other reports, studies or the like in the possession of Seller and relating to
the Property or any portion thereof.
e. Surveys. A copy of all surveys, plans and plats of the Property in Seller's
possession.
f. Leases. Copies of all leases, if any,affecting the Property and amendments
thereto.
g. Contracts. Copies of any and all contracts, if any, in possession of Seller
pertaining to the Property and amendments thereto, including but not
limited to management contracts, service contracts, equipment leases and
maintenance contracts.
h. Inventory. An inventory of personal property, if any, which will be
conveyed.
Warranties. Copies of any warranties covering the Property.
3.2 Intentionally Omitted.
Page 14
1
3.3 Correction of Title and Title Condition. If the Title Commitment or survey
discloses either unpermitted exceptions or survey matters that render the title not in conformance
with the provisions of this Agreement, Seller shall have sixty(60) days from the date of delivery
thereof to have the exceptions removed from the commitment or to correct such survey defects,
or to have the title company commit to insure against loss or damage that may be associated by
such exceptions or survey defects. If Seller fails to have the exceptions removed or correct any
survey defects, or in the alternative, to obtain the commitment for title insurance as specified
above as to such exceptions or survey defects, the Purchaser may terminate this Agreement or
may elect, upon notice to the Seller within thirty (30) days after the expiration of the 60-day
period, to take title as it then is. If the Purchaser does not so elect, this Agreement shall be
deemed terminate and null and void with no further liability of either party hereunder except as
specified in Sections 3.4 and 9.3.
3.4 Inspection. Purchaser may inspect ("Inspection") the Property and the Review
Documents within 120 days from the Effective Date(the "Inspection Period"). If such Inspection
reveals that the Property is not suitable for Purchaser's intended use, in Purchaser's sole and
absolute discretion (which may be arbitrary), Purchaser may, based on Purchaser's Inspections
pursuant to this Section 3.4 or for any other reason, terminate the Agreement. Purchaser shall
have the right (for itself, its engineers and other representatives), at Purchaser's sole cost and
expense, to enter onto the Property at reasonable times as mutually agreed to by Seller and
Purchaser to make physical Inspections thereof and to conduct other Inspections as Purchaser
deems appropriate. Such tests, studies and investigations shall be conducted in such a manner as
to not permanently or materially damage the Property, and if any damage is done, Purchaser
shall immediately repair and restore the Property to its former condition and shall hold Seller
harmless, defend and indemnify Seller from all claims for damage to person or property claimed
by any employee, agent or invitee of Purchaser upon or about the premises as a result of the tests,
studies and/or inspections.
4. CONDITIONS TO CLOSING.
4.1 Financing Approval ArtSpace, Inc. Purchaser intends to enter into an Agreement
with ArtSpace, Inc., a not-for-profit developer ("ArtSpace") of residential units with mixed uses
marketed for residential use and art project space by artists(the"ArtSpace Project"). ArtSpace is
seeking certain governmental approvals, including tax credit financing ("Governmental
Approvals") that has not yet been successfully confirmed. Should ArtSpace not obtain the
necessary Governmental Approvals for the ArtSpace Project on or before August 15, 2010, or in
the event Purchaser is not be able to enter into an acceptable contract with ArtSpace on or before
August 15, 2010 for ArtSpace to acquire from Purchaser the real estate being purchased
hereunder from Seller, or in the event the Purchaser otherwise determines not to proceed with the
ArtSpace Project on the Property, Purchaser shall provide Seller written notice of such
circumstance(s) on or before September 1, 2010, and whereupon this Agreement and the
concurrent obligation of Purchaser to sell to Seller by separate contract the real estate described
on Exhibit B, and all other rights and obligations of the Parties under the Exchange Agreement
and attached contracts shall terminate, in which event neither Seller nor Purchaser shall have
any further duties or obligations hereunder.
Page 15
5. CLOSING. The Closing of the transaction (the "Closing") shall occur at the
offices of Chicago Title Insurance Company ("Title Company") located in Elgin, Illinois, on or
before the 1st day of October, 2010, or on such earlier date as may be designated by the mutual
agreement of the Parties.
5.1 Seller's Obligation at Closing. Seller shall deliver to Purchaser (at Seller's
expense) in addition to any other items required by this Agreement:
a. A Special Warranty Deed, in recordable form, duly executed and
acknowledged by Seller, subject only to matters approved or deemed
approved by Purchaser pursuant to Section 3.2;
b. A Resolution from Seller authorizing the transactions contemplated
hereby, certified as true and correct by the Seller;
c. Affidavits sufficient for the Title Company to delete any exceptions for
parties in possession, Survey and mechanic's or materialmen's liens from
the Title Policy and such other affidavits relating to the Title Policy as
Purchaser or any Title Company may reasonably request;
d. A certificate duly executed by Seller, stating that each of the
representations and warranties set forth in Section 9.1 are true, correct and
complete as of Closing;
e. Any Seller's affidavits required under the Internal Revenue Code;
f. Possession of the Property, free and clear of any rights of use or
occupancy; and
g. An Owner's Policy of Title Insurance, (the "Title Policy") issued by the
Title Company, in the amount of the Purchase Price and dated at or after
Closing, insuring Purchaser's fee simple title to the Property to be good
and indefeasible subject only to those exceptions approved by the
Purchaser pursuant to Section 3.2.
5.2 Purchaser's Obligations at Closing.Purchaser shall deliver to Seller:
a. The performance of all obligations under Purchaser's Conveyance,
including the executed Special Warranty Deed and RFN;
b. A Resolution from Purchaser authorizing the transactions contemplated
hereby, certified as true and correct by the Purchaser;
c. Any and all documents reasonably required by the Title Company.
Page 16
t i
5.3 Closing Costs. Except as otherwise expressly provided herein, Seller shall pay, at
Closing, the basic title insurance premium for the Owner's Policy and an endorsement for
extended coverage, one-half (2) of any escrow fees and other customary charges of Title
Company, and Purchaser shall pay at Closing, all recording costs (except those to clear any
unpermitted title exceptions), the costs of any additional endorsements requested by Purchaser,
one-half(2) of any escrow fees and other customary charges of the Title Company. Except as
otherwise provided herein, each party shall pay its own attorneys' fees.
5.4 Transfer Stamps. No transfer stamps are due as this is a transfer of property
between the two governmental entities.
6. CONDEMNATION. If there is a condemnation or pending condemnation of any
material portion of the Property or any rights therein prior to Closing, Purchaser may at its option
either (a) terminate this Agreement, or (b) proceed to close the transaction contemplated herein
and receive at Closing either a credit towards the Purchase Price in the amount of the award, in
the case of a completed condemnation, or an assignment of all rights in condemnation, in the
case of a pending condemnation.
7. DAMAGE OR DESTRUCTION. All risk of loss to the Property shall remain
upon Seller prior to Closing. In the event of any damage to or destruction of all or a material part
of the Property prior to Closing, Purchaser may at its option (a) terminate this Agreement, or(b)
proceed to close the transaction contemplated herein and receive at Closing a payment of or an
assignment of all amounts recovered or recoverable by Seller on account of insurance on the
Property, less any amounts reasonable expended by Seller for restoration, plus an amount equal
to Seller's deductible under such insurance.
8. REAL ESTATE BROKERS. No real estate brokers were used by either party in
this transaction.
9. REPRESENTATIONS AND WARRANTIES.
9.1 By Seller. In order to induce Purchaser to purchase the Property, Seller hereby
represents and warrants to Purchaser the following, which shall be true and accurate on the
Effective Date and on the date of Closing:
a. Seller represents that it has all requisite power and authority to execute,
deliver and perform this Agreement and all instruments and agreements
contemplated hereby.
b. This Agreement has been duly authorized, executed and delivered by
Seller, and all consents required under Seller's organizational documents
or from any third party or from any governmental authority have been
obtained. All documents that are to be executed by Seller and delivered to
Page 17
Purchaser at Closing will be duly executed, authorized and delivered by
Seller.
c. To the best of Seller's knowledge, there are no lawsuits or other
proceedings of any kind pending or threatened against Seller relating to
the Property or the zoning or use thereof, nor does Seller have any
knowledge of any basis for any such action.
d. Seller has received no notice of and has no knowledge of any pending or
threatened condemnation or transfer in lieu thereof affecting the Property
•or any Proposed or pending special assessments against the Property or
any proposed or pending public improvements which may give rise to
special assessments against the Property.
e. There has been no labor or materials of any kind furnished to Seller for the
benefit of the Property at Seller's request for which payment in full has not
been made.
f. Seller has not conveyed to any person or entity other than Purchaser any
rights in, or rights to acquire any interest in,the Property.
g. There are no notices, suits or other proceedings of judgments relating to
the violation of any laws, ordinances, or other requirements affecting the
regulations, codes, orders or other requirements affecting the Property, and
Seller has no knowledge of any violation or condition that may give rise to
any of the foregoing.
h. Seller has not generated, stored, handled or disposed of any hazardous
waste or hazardous substance on or in the Property or any portion thereof;
and, to the best of Seller's knowledge, is not aware of the generation,
storage, handling or disposal of any Hazardous Materials on or in the
Property or any portion thereof by other persons or entities except as
identified on Exhibit 2, attached hereto and previously disclosed to
Purchaser.. "Hazardous Materials" shall mean any substance which is or
contains (i) any "hazardous substance" as now or hereafter defined in '
101(14) at the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended("CERCLA") (42 U.S.C. ' 9601, et.
seq.) or any regulations promulgated order CERCLA; (ii) any "hazardous
waste" as now or hereafter defined in the Resource Conservation and
Recovery Act (42 U.S.C. ' 6901, et. seq.) ("RCRA") or regulations
promulgated under RCRA; (iii) any substance regulated by the Toxic
Substances Control Act (15 U.S.C. ' 2601, et. seq.); (iv) gasoline, diesel
fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos
containing materials, in any form, whether friable or non-friable; (vi)
polychlorinated biphenyls; (vii) radon gas; and any additional substances
Page 18
or materials which are classified or considered to be hazardous or toxic
under the foregoing statutes or the common law, or any other applicable
laws relating to the Property. Hazardous Materials shall include, without
limitation, any substance the presence of which on the Property (A)
requires reporting, investigation or remediation under the statutes cited
above; (B) causes or threatens to cause a nuisance on any Property or
adjacent property or poses or threatens to pose a hazard to the health or
safety of persons on any Property or adjacent property; or (C) which, if it
emanated immigrated from the Property, could constitute a trespass.
9.2 By Purchaser. Purchaser hereby represents and warrants to Seller the following,
which shall be true and accurate on the Effective Date and on the date of Closing:
a. Purchaser represents that it has all requisite power and authority to
execute, deliver and perform this Agreement and all instruments and
agreements contemplated hereby.
b. This Agreement has been duly authorized, executed and delivered by
Purchaser, and all consents required under Purchaser's organizational
documents or from any third party or from any governmental authority
have been obtained. All documents than are to be executed by Purchaser
and delivered to Seller at Closing will be duly executed, authorized and
delivered by Purchaser.
9.3 Continuing Obligation to Disclose. Seller agrees to promptly provide written
notice to the Purchaser of any circumstances or facts of which Seller becomes aware that would
cause the representations and warranties in Section 9.1, or any portion thereof to be incorrect.
Seller agrees to indemnify and hold the Purchaser harmless from and against any loss, cost,
liability, claim, fine, judgment or expense, including, without limitation, attorneys' fees arising
out of any breach of the representations and warranties in Section 9.1.
9.4 Survival. The representations and warranties, and obligations of notice and
indemnity contained in Sections 9.1, 9.2, and 9.3 shall survive the closing and shall terminate
one (1) year thereafter.
10. TIME FOR PERFORMANCE. Time is of the essence in the performance of this
Agreement. Whenever under the terms of this Agreement the time for performance falls on a
Saturday, Sunday or Federal or State legal holiday, such time for performance shall be on the
next day that is not a Saturday, Sunday or legal holiday.
11. DEFAULT. In the event of any default on the part of either party under this
Agreement which continues for 10 days after receipt of written notice from the other party
(except that no notice shall be required for default under any obligations to be performed at
Closing), the non-defaulting party may (i) terminate this Agreement, or (ii) seek specific
performance against the other.
Page 19
12. NOTICES. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments or designations required under this Agreement
or by law by either party to the other shall be in writing and shall be sufficiently given and
served upon the other party if personally served, or sent by registered or certified mail, return
receipt requested, postage prepaid, by facsimile transmission or by reasonably reliable courier
service providing overnight or sooner delivery,postage prepaid, and addressed as follows:
If to the CITY: City of Elgin
• Attn: City Manager
150 Dexter Court
Elgin, IL 60120
With a copy to: William A. Cogley, Esq.
Corporation Counsel
150 Dexter Court
Elgin, IL 60120
If to ECC: Elgin Community College
Attn: President
1700 Spartan Drive
Elgin, IL 60123
With a copy to: John F. Early,Esq.
Early,Tousey,Regan&Wlodek
2400 Big Timber Road, Suite 201A
Elgin, IL 60124
Either party may change its address for notice purposes by giving written notice thereof as
provided.
13. INVALID PROVISIONS. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be fully severable;
this Agreement shall be construed as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by such illegal, invalid, or unenforceable
provision or by its severance from this Agreement.
14. COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original,but all of which together shall constitute
the same instrument.
Page 20
1 f
15. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties relating to this transaction and may not be amended, waived
or discharged except by a written instrument executed by both parties.
16. GOVERNING LAW AND VENUE. This Agreement shall be governed by, and
enforced in accordance with the laws of the State of Illinois, and venue shall be in Kane County,
Illinois,where the Property is located.
17. ENVIRONMENTAL AUDIT. Within 60 days of the Effective Date, Purchaser shall
have the right to enter into the premises to perform a Phase I Environmental Audit. Within 30
days of Purchaser's receipt of the Environmental Audit, Purchaser shall advise Seller in writing
of any objections it may have to the Audit. In the event Purchaser's objections are not
satisfactorily resolved in Purchaser's sole opinion prior to the expiration of the Inspection Period,
Purchaser shall have the option of terminating this Agreement. In the event Purchaser exercises
its option to terminate this Agreement under this provision, and neither party hereto shall have
any rights or obligations hereunder except as specified in Sections 3.4 and 9.3.
18. EFFECTIVE DATE. For purposes of this Agreement, the Effective Date shall be the
date the Contract is signed and dated by the parties.
CITY OF ELGIN, an Illinois Municipal Corporation
By:
Mayor
ATTEST:
By:
City Clerk
COMMUNITY COLLEGE DISTRICT NO. 509, an Illinois Community College
By:
Press ent
ATTEST:
By:
B and Secretary
Page 21
a i
• ►
ECC REAL ESTATE SALES AGREEMENT
EXHIBIT "A"
FOUNTAIN SQUARE PARCEL
Legal description of fee interest in property to be purchased by CITY, the Elgin Community
College Fountain Square Parcel:
Lots 7, 8, 9 and 10, and that part of Lots 5, 6, 11 and 12 lying Southwesterly of
the Southwesterly right-of-way line of the Chicago and Northwestern Railway.
Company, all in Block 12 of the original Town of Elgin, Kane County, Illinois,
including all improvements and structures thereon.
Page 22
ECC REAL ESTATE SALES AGREEMENT
EXCHANGE PARCEL
EXHIBIT"B-1"
Legal description of property to be conveyed by CITY to ECC:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 23
ECC REAL ESTATE SALES AGREEMENTECC RFN PARCEL
EXHIBIT"B-2"
Legal description of property subject to the RFN:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 24
ECC REAL ESTATE SALES AGREEMENTSCHEDULE '2'
SECTION 9.1h,IDENTIFIED HAZARDOUS MATERIAL SCHEDULE
Seller hereby discloses to the Purchaser that it has previously caused lead based paint
removal and remediation and asbestos removal from the Property.
EXHIBIT"D"
CITY REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement") is entered into as of the 27`h
day of January, 2010, by and between COMMUNITY COLLEGE DISTRICT NO. 509, an
Illinois Community College, ("Purchaser") and the CITY OF ELGIN, an Illinois municipal
corporation, ("Seller").
1. PURCHASE AND SALE. Upon and subject to the terms and conditions of this
Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from
Seller,the following described Property:
a. Land and Right of First Negotiation. That certain tract of Property,
consisting of 16 acres bordering the south side of Spartan Drive and its
extension and contiguous to the west to the property acquired by ECC
from the City and improved in part with a building a parking lot, such
property being depicted and labeled as "16AC" in the aerial photo
attached hereto as Exhibit B and legally described on Exhibit B-1 attached
hereto and,together with a grant of a Right of First Negotiation"RFN" for
the property being depicted and labeled as ":ECC Right of First Refusal"
in the aerial photo attached as Exhibit B and legally described in Exhibit
B-2 in the form attached to the Exchange Agreement entered into between
the Parties concurrently herewith (the real estate parcel legally described
on Exhibit B-1 being called the"Property".
b._ Improvements. All improvements, if any, in and on the Property. All
improvements in and on the Property, including, but not limited to, all
heating, cooling, plumbing and electrical fixtures, and all appurtenances
relating thereof. The conveyance from Seller to Purchaser shall not
include any personal property on the Property.
c. Leases. Seller represents that there are no leases or service contracts
applicable to or affecting the real estate described on Exhibit B-1.
d. Appurtenances. All rights, privileges and easements appurtenances to the
Property, which are owned by the Seller, solely in Seller's capacity as the
Page 25
•
• '
owner of the Property, and not in Seller's capacity as a municipality,
including without limitation, all mineral, oil, gas and other hydrocarbon
substances on and under the Property, as well as all development rights,
air rights, water, water rights and water stock relating to the Property and
any other easements, rights-of-way or appurtenances used in connection
with the beneficial use and enjoyment of the Property including, without
limitation, any and all rights of Seller, solely in Seller's capacity as the
owner of the Property, and not in Seller's capacity as a municipality, in
and to all roads, alleys, easements, streets and ways adjacent to the
Property, and the rights of ingress and egress thereto from a public street.
2. CONSIDERATION AND CONVEYANCE.
2.1 Purchase Price. The purchase price ("Purchase Price") for the Property together
with a grant of a right of first negotiation("RFN") for the property described in Exhibit B-2 shall
be the conveyance by Purchaser of the real property and improvements described in Exhibit A,
which the parties agree has a fair market value of Two Million Six Hundred Thousand Dollars
($2,600.000.)
2.2 Related Transactions. The sale and exchange of the Property as defined herein
shall occur simultaneously with the sale and exchange of the sale and exchange of the other
property described in paragraph 2.1, above, from the Purchaser to Seller ("Purchaser's
Conveyance"), which transaction is described in a relate ECC REAL ESTATE SALE
AGREEMENT of even date herewith between the parties. It is agreed by the parties that the
conveyance of the property of each party to the other is a single transaction and is governed by
the INTERGOVERNMENTAL AGREEMENT between the parties and that both conveyances
must occur for either to occur. If either party elects not to proceed under either agreement within
the times and for the reasons set forth herein,then both agreements shall be null and void.
2.3 Conveyance of Property. Seller shall convey the Property to Purchaser at the
Closing by recordable special warranty deed, subject only to: (a) general real estate taxes not yet
due and payable as of the Closing; (b) public utility easements; (c) zoning laws, statutes and
ordinances; and (d) covenants, conditions and restrictions of record, if any, which do not prohibit
or unreasonably restrict the Purchaser's intended use of the Property for public educational
purposes; and (a) restrictions contained in House Bill 1868, as amended by subsequent
legislation,restricting the use of the property for public educational recreational purposes.
2.4 Prorations. The parties understand and agree that the property is currently exempt
from general real estate taxes. In the event general real estate taxes are assessed against the
Property prior to the Closing, such general real estate taxes for the Property shall be prorated as
of the date of the Closing.
3. PURCHASER'S REVIEW.
Page 26
3.1 Seller's Obligations. Seller shall deliver to Purchaser (at Seller's expense), within
45 days after the date hereof,the following documents(the "Review Documents").
a. Title Commitment Coverage. Commitment for an Owner's Policy of Title
Insurance ("Title Commitment") on the Property, with an extended
coverage endorsement,which may be in nominal amount, issued by a Title
Company licensed to do business in Illinois and legible copies of any
restrictive covenants, easements and other items listed as title exceptions
therein. Additional endorsements may be requested by Purchaser at
Purchasers cost. . The Title Commitment shall show title in Seller subject
only to: (a) title exceptions set forth in paragraph 2.3 of this Agreement;
(b) title exceptions pertaining to a lien or encumbrances of a definite or
ascertainable amount which may be removed by the payment of money at
the time of closing and which Seller shall so remove at that time; and
(c) other matters of title over which the title company is willing to insure
without cost to the Purchaser.
b. Survey. A survey prepared in accordance with the Standards for Land
Title Surveys of American Land Title Association and American Congress
on Surveying and Mapping promulgated in 1992 ("ALTA Survey"),
currently certified by a registered Illinois land surveyor reasonably
acceptable to Buyer and sufficient to enable the title insurance company to
give coverage over matters of survey, showing the exact boundaries, legal
description and acreage contained within the Property, designating all
improvements, showing no fencing or other improvements of every kind
which might constitute encroachments in either direction over the
boundaries, all public or private utility or drainage easements or easements
of record disclosed by the public records. The ALTA Survey shall
identify the Property thereof by legal description and set forth the gross
acreage thereof and shall identify; (i) land used, dedicated or subject
easements for roads and highways, (ii) existing storm water detention or
drainage easements or rights; and (iii) any flood plain, flood ways,
wetlands other special environmentally protected areas; and shall
otherwise be reasonably satisfactory in form and substance to Buyer. In
the event the legal description of the Property contained on the Survey
differs from the legal description attached to this Agreement, the legal
description contained on the Survey shall be incorporated into this
Agreement and used on the Title Commitment and all closing documents.
c. Licenses. Copies of all licenses, certificates of occupancy and other
governmental licenses or approvals, if any, relating to any portion of the
Property.
d. Studies. Studies, reports, maps, environmental reports, soil tests results,
engineering reports, traffic, flood control, drainage plans and any and all
Page 27
other reports, studies or the like in the possession of Seller and relating to
the Property or any portion thereof.
e. Surveys. A copy of all surveys, plans and plats of the Property in Seller's
possession.
f. Leases. Copies of all leases affecting the Property and amendments
thereto.
g. Contracts. Copies of any and all contracts, if any, in possession of Seller
pertaining to the Property and amendments thereto, including but not
limited to management contracts, service contracts, equipment leases and
maintenance contracts.
h. Inventory. An inventory of personal property, if any, which will be
conveyed.
i i. Warranties. Copies of any warranties covering the Property.
3.2 Intentionally Omitted.
3.3 Correction of Title and Title Condition. If the Title Commitment or survey
discloses either unpermitted exceptions or survey matters that render the title not in conformance
with the provisions of this Agreement, Seller shall have sixty(60) days from the date of delivery
thereof to have the exceptions removed from the commitment or to correct such survey defects,
or to have the title company commit to insure against loss or damage that may be associated by
such exceptions or survey defects. If Seller fails to have the exceptions removed or correct any
survey defects, or in the alternative, to obtain the commitment for title insurance as specified
above as to such exceptions or survey defects, the Purchaser may terminate this Agreement or
may elect, upon notice to the Seller within thirty (30) days after the expiration of the 60-day
period, to take title as it then is. If the Purchaser does not so elect, this Agreement shall be
deemed terminate and null and void with no further liability of either party hereunder except as
specified in Sections 3.4 and 9.3.
3.4 Inspection. Purchaser may inspect ("Inspection") the Property and the Review
Documents within 120 days from the Effective Date (the "Inspection Period"). Such inspections
may include soil tests and engineering studies. If such Inspection reveals that the Property is not
suitable for Purchaser's intended use, in Purchaser's sole and absolute discretion (which may be
arbitrary), Purchaser may, based on Purchaser's Inspections pursuant to this Section 3.4 or for
any other reason,terminate the Agreement. Purchaser shall have the right (for itself, its engineers
and other representatives), at Purchaser's sole cost and expense, to enter onto the Property to
make physical Inspections thereof and to conduct other Inspections as Purchaser deems
appropriate. Such tests, studies and investigations shall be conducted in such a manner as to not
permanently or materially damage the Property, and if any damage is done, Purchaser shall
immediately repair and restore the Property to its former condition and shall hold Seller
Page 28
harmless, defend and indemnify Seller from all claims for damage to person or property claimed
by any employee, agent or invitee of Purchaser upon or about the premises as a result of the tests,
studies and/or inspections.
4. CONDITIONS TO CLOSING.
4.1 Governmental Approval. If Purchaser is unable to obtain any necessary
governmental approvals prior to closing Purchaser may terminate this Agreement by delivering
written notice to Seller.
5. CLOSING. The Closing of the transaction (the "Closing") shall occur at the
offices of Chicago Title Insurance Company ("Title Company") office located in Elgin, Illinois,
on or before October 1, 2010, or on such earlier date as may be designated by the mutual
agreement of the Parties.
5.1 Seller's Obligation at Closing. Seller shall deliver to Purchaser (at Seller's
expense)in addition to any other items required by this Agreement:
a. A Special Warranty Deed, in recordable form, duly executed and
acknowledged by Seller, subject only to matters approved or deemed
approved by Purchaser pursuant to Section 3.2;
b. A Resolution from Seller authorizing the transactions contemplated
hereby,certified as true and correct by the Clerk of Seller;
c. Affidavits sufficient for the Title Company to delete any exceptions for
parties in possession, Survey and mechanic's or materialmen's liens from
the Title Policy and such other affidavits relating to the Title Policy as
Purchaser or any Title Company may reasonably request;
d. A certificate duly executed by Seller, stating that each of the
representations and warranties set forth in Section 9.1 are true, correct and
complete as of Closing;
e. Any Seller's affidavits required under the Internal Revenue Code;
f. Possession of the Property, free and clear of any rights of use or
occupancy; and
g. An Owner's Policy of Title Insurance, (the "Title Policy") issued by the
Title Company, in the amount of the Purchase Price and dated at or after
Closing, insuring Purchaser's fee simple title to the Property to be good
and indefeasible subject only to those approved by the Purchaser pursuant
Page 29
to Section 3.2 and with full extended coverage over the standard printed
exceptions contained in the usual form of the Title Policy.
h. A Right of First Negotiation in favor of Purchaser to the real estate
describe on Exhibit B-2 in the form attached hereto as Exhibit 1.
5.2 Purchaser's Obligations at Closing. Purchaser shall deliver to Seller:
a. The performance of all obligations under this Agreement, the Exchange
Agreement and all other Agreements between the Parties entered into
concurrently herewith;
b. Any and all documents reasonably required by the Title Company.
5.3 Closing Costs. Except as otherwise expressly provided herein, Seller shall pay, at
Closing, the basic title insurance premium for the Owner's Policy and an endorsement for
extended coverage, one-half (2) of any escrow fees and other customary charges of Title
Company, and Purchaser shall pay at Closing, all recording costs (except those to clear any
unpermitted title exceptions), the costs of any additional endorsements requested by Purchaser,
one-half(2) of any escrow fees and other customary charges of the Title Company. Except as
otherwise provided herein, each party shall pay its own attorneys'fees.
5.4 Transfer Stamps. No transfer stamps are due as this is a transfer of property
between the two municipal entities.
6. CONDEMNATION. If there is a condemnation or pending condemnation of any
material portion of the Property or any rights therein prior to Closing, Purchaser may at its option
either (a) terminate this Agreement, or (b) proceed to close the transaction contemplated herein
and receive at Closing either a credit towards the Purchase Price in the amount of the award, in
the case of a completed condemnation, or an assignment of all rights in condemnation, in the
case of a pending condemnation.
7. DAMAGE OR DESTRUCTION. All risk of loss to the Property shall remain
upon Seller prior to Closing. In the event of any damage to or destruction of all or part of the
Property prior to Closing, Purchaser may at its option (a) terminate this Agreement, or (b)
proceed to close the transaction contemplated herein and receive at Closing a payment of or an
assignment of all amounts recovered or recoverable by Seller on account of insurance on the
Property, less any amounts reasonable expended by Seller for restoration, plus an amount equal
to Seller's deductible under such insurance.
8. REAL ESTATE BROKERS. No real estate brokers were used by either party in
this transaction.
9. REPRESENTATIONS AND WARRANTIES.
Page 30
ti
9.1 By Seller. In order to induce Purchaser to purchase the Property, Seller hereby
represents and warrants to Purchaser the following, which shall be true and accurate on the
Effective Date and on the date of Closing:
a. Seller represents that it has all requisite power and authority to execute,
deliver and perform this Agreement and all instruments and agreements
contemplated hereby.
b. This Agreement has been duly authorized, executed and delivered by
Seller, and all consents required under Seller's organizational documents
or from any third party or from any governmental authority have been
obtained. All documents that are to be executed by Seller and delivered to
Purchaser an Closing will be duly executed, authorized and delivered by
Seller.
c. To the best of Seller's knowledge, there are no lawsuits or other
proceedings of any kind pending or threatened against Seller relating to
the Property or the zoning or use thereof, nor does Seller have any
knowledge of any basis for any such action.
d. Seller has received no notice of and has no knowledge of any pending or
threatened condemnation or transfer in lieu thereof affecting the Property
or any Proposed or pending special assessments against the Property or
any proposed or pending public improvements which may give rise to
special assessments against the Property.
e. There has been no labor or materials of any kind furnished to Seller for the
benefit of the Property at Seller's request to, which payment in full has not
been made.
f. Seller has not conveyed to any person or entity other than Purchaser any
rights in, or rights to acquire any interest in, the Property.
g. There are no notices, suits or other proceedings of judgments relating to
the violation of any laws, ordinances, or other requirements affecting the
regulations, codes, orders or other requirements affecting the Property, and
Seller has no knowledge of any violation or condition that may give rise to
any of the foregoing.
h. Seller has not generated, stored, handled or disposed of any hazardous
waste or hazardous substance on or in the Property or any portion thereof,
and, to the best of Seller's knowledge, is not aware of the generation,
storage, handling or disposal of any Hazardous Materials on or in the
Property or any portion thereof by other persons or entities. "Hazardous
Materials" shall mean any substance which is or contains (i) any "hazard-
Page 31
ous substance" as now or hereafter defined in ' 101(14) at the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended ("CERCLA") (42 U.S.C. ' 9601, et. seq.) or any
regulations promulgated order CERCLA; (ii) any "hazardous waste" as
now or hereafter defined in the Resource Conservation and Recovery Act
(42 U.S.C. ' 6901, et. seq.) ("RCRA") or regulations promulgated under
RCRA; (iii) any substance regulated by the Toxic Substances Control Act
(15 U.S.C. ' 2601, et. seq.); (iv) gasoline, diesel fuel, or other petroleum
hydrocarbons; (v) asbestos and asbestos containing materials, in any form,
whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) radon
gas; and any additional substances or materials which are classified or
considered to be hazardous or toxic under the foregoing statutes or the
common law, or any other applicable laws relating to the Property.
Hazardous Materials shall include, without limitation, any substance the
presence of which on the Property (A) requires reporting, investigation or
remediation under the statutes cited above; (B) causes or threatens to
cause a nuisance on any Property or adjacent property or poses or
threatens to pose a hazard to the health or safety 'of persons on any
Property or adjacent property; or (C) which, if it emanated unmigrated
from the Property, could constitute a trespass.
9.2 By Purchaser. Purchaser hereby represents and warrants to Seller the following,
which shall be true and accurate on the Effective Date and on the date of Closing:
a. Purchaser represents that it has all requisite power and authority to
execute, deliver and perform this Agreement and all instruments and
agreements contemplated hereby.
b. This Agreement has been duly authorized, executed and delivered by
Purchaser. Purchaser shall use its best efforts to obtain any and all
consents required from any governmental authority required. All
documents than are to be executed by Purchaser and delivered to Seller at
Closing will be duly executed, authorized and delivered by Purchaser.
9.3 Continuing Obligation to Disclose. Seller agrees to promptly provide written
notice to the Purchaser of any circumstances or facts of which Seller becomes aware that would
cause the representations and warranties in Section 9.1, or any portion thereof to be incorrect.
Seller agrees to indemnify and hold the Purchaser harmless from and against any loss, cost,
liability, claim, fine, judgment or expense, including, without limitation, attorneys' fees arising
out of any breach of the representations and warranties in Section 9.1.
9.4 Survival. The representations and warranties, and obligations of notice and
indemnity contained in Sections 9.1, 9.2 and 9.3 shall survive the closing and shall terminate one
(1) year thereafter.
Page 32
10. TIME FOR PERFORMANCE. Time is of the essence in the performance of this
Agreement. Whenever under the terms of this Agreement the time for performance falls on a
Saturday, Sunday or Federal or State legal holiday, such time for performance shall be on the
next day that is not a Saturday, Sunday or legal holiday.
11. DEFAULT. In the event of any default on the part of either party under this
Agreement which continues for 10 days after receipt of written notice from the other party
(except that no notice shall be required for default under any obligations to be performed at
Closing), the following shall apply:
a. If Purchaser is the defaulting party, Seller may terminate this Agreement.
b. If the Seller is the defaulting party, Purchaser may (i) terminate this
Agreement, or(ii) seek specific performance against Seller.
12. NOTICES. All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments or designations required under this Agreement
or by law by either party to the other shall be in writing and shall be sufficiently given and
served upon the other party if personally served, or sent by registered or certified mail, return
receipt requested, postage prepaid, by facsimile transmission or by reasonably reliable courier
service providing overnight or sooner delivery, postage prepaid, and addressed as follows:
If to the CITY: City of Elgin
Attn: City Manager
150 Dexter Court
Elgin, IL 60120
With a copy to: William A. Cogley, Esq.
Corporation Counsel
150 Dexter Court
Elgin, IL 60120
If to ECC: Elgin Community College
Attn: President
1700 Spartan Drive
Elgin, IL 60123
With a copy to: John F. Early, Esq.
Early, Tousey,Regan &Wlodek
2400 Big Timber Road, Suite 201A
Elgin, IL 60124
Either party may change its address for notice purposes by giving written notice thereof as
provided.
Page 33
o /
+ 1 s
13. INVALID PROVISIONS. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be fully severable;
this Agreement shall be construed as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by such illegal, invalid, or unenforceable
provision or by its severance from this Agreement.
14. COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, such of which shall be deemed an original, but all of which together shall constitute
the same instrument.
15. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties relating to this transaction and may not be amended, waived
or discharged except by a written instrument executed by both parties.
16. GOVERNING LAW AND VENUE. This Agreement shall be governed by, and
enforced in accordance with the laws of the State of Illinois, and venue shall be in Kane County,
where the Property is located.
17. ENVIRONMENTAL AUDIT. Within 60 days of the Effective Date, Buyer shall have
the right to enter into the premises to perform a Phase I Environmental Audit. Within 30 days of
Purchaser's receipt of the Environmental Audit, Purchaser shall advise Seller in writing of any
objections it may have to the Audit. In the event Purchaser's objections are not satisfactorily
resolved in Purchaser's sole opinion prior to the expiration of the Inspection Period, Purchaser
shall have the option of terminating this Agreement. In the event Purchaser exercises its option to
terminate this Agreement under this provision, the Earnest Money shall be returned to Purchaser
and neither party hereto shall have any rights or obligations hereunder except as specified in
Sections 3.4 and 9.3. If Purchaser does not terminate this Agreement, the Purchase Price shall be
equitably adjusted at Closing.
18. EFFECTIVE DATE. For purposes of this Agreement, the Effective Date shall be the
date the Contract is signed and dated by the parties.
CITY OF ELGIN, an Illinois Municipal Co oration
By:
Mayor
ATTEST:
By:
City Clerk
Page 34
COMMUNITY COLLEGE DISTRICT NO. 509, an Illinois Community College
By:
Pre nt
ATTEST:
BY: 1/471.1„ge....."
ard Secretary
Page 35
CITY REAL ESTATE SALE AGREEMENT
FOUNTAIN SQUARE PARCEL
EXHIBIT "A"
Legal description of fee interest in property to be purchased by CITY, the Elgin Community
College Fountain Square Parcel:
Lots 7, 8, 9 and 10, and that part of Lots 5, 6, 11 and 12 lying
Southwesterly of the Southwesterly right-of-way line of the Chicago and
Northwestern Railway Company, all in Block 12 of the original Town of Elgin,
Kane County, Illinois, including all improvements and structures thereon.
Page 36
CITY REAL ESTATE SALE AGREEMENT
EXCHANGE PARCEL
EXHIBIT"B-1"
Legal description of property to be conveyed by CITY to ECC:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 37
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EXHIBIT B
J
4
S
CITY REAL ESTATE SALE AGREEMENT
ECC RFN PARCEL
EXHIBIT"B-2"
Legal description of property subject to the RFN:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 38
EXHIBIT E
RIGHT OF FIRST NEGOTIATION
INSTRUMENT PREPARED BY&
MAIL TO WHEN RECORDED:
John F. Early
Early, Tousey,Regan&Wlodek
2400 Big Timber Road, Suite 201A
Elgin, IL 60124
MEMORANDUM OF RIGHT OF FIRST NEGOTIATION
THIS MEMORANDUM is made and entered into as of the 27th day of January, 2010,
by and between COMMUNITY COLLEGE DISTRICT NO. 509, an Illinois Community
College, 1700 Spartan Drive, Elgin, Illinois 60123 (herein`BCC"), and the CITY OF ELGIN, an
Illinois Municipal Corporation, 150 Dexter Court, 60120 (herein the "CITY"), herein sometimes
collectively referred to as the "Parties."
In consideration of the mutual promises contained herein, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree to enter
into this Agreement pursuant to Article VII, Section 10 of the Constitution of the State of
Illinois, the Local Government Property Transfer Act. 50 ILCS 605/0.01 et seq., and the
Intergovernmental Corporation Act, 5 ILCS 220/5 et. seq.
WITNESSETH:
WHEREAS, the CITY is the owner of certain lands located within the City, situated in Kane
County, Illinois, currently being used as part of its Spartan Meadows Golf Course and consisting
of a parcel of approximately 22 acres bordering the south side of Spartan Drive, referred to
herein as the "ECC RFN Parcel," and as depicted in the aerial photo attached as Exhibit B and
legally described in Exhibit"B-2"
WHEREAS, ECC wishes to acquire a right of first negotiation in the adjacent ECC RFN Parcel
for Community College purposes, subject to and pursuant to the terms and conditions of this
Agreement; and,
WHEREAS, the CITY agrees to grant a right of first negotiation in the adjacent ECC RFN
Parcel in exchange for other valuable consideration;
Page 39
,
NOW THEREFORE, FOR AND IN CONSIDERATION OF THE SUM OF ONE
DOLLAR ($1.00), THE PRECEDING REPRESENTATIONS, AND OTHER VALUABLE
CONSIDERATIONS, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED,THE PARTIES AGREE AS FOLLOWS:
1. ECC Right to Purchase.
A. ECC's Right of First Negotiation. If, at any time, CITY intends to sell, lease for
more than ten(10) consecutive years, exchange or transfer any interest in the ECC RFN Parcel or
any part thereof or interest therein, including but not limited to transfers of interest in the form of a
lease for more than ten (10) consecutive years, or an option or right to purchase any interest to a
third party, then CITY shall, prior to any such conveyance of the ECC RFN Parcel or such part
thereof or interest therein, deliver to ECC written notice of the terms and conditions, upon which
CITY intends to offer or convey the ECC RFN Parcel or such part thereof or interest therein for
sale or transfer of other consideration. ECC shall have the right to purchase the ECC RFN Parcel
(or such part thereof or interest therein) on the terms set forth in the notice from CITY by giving
written notice to the CITY within sixty(60) days after receiving CITY's notice, of ECC's intention
to purchase on the terms contained in such notice from CITY. In the event that ECC fails to notify
CITY within said sixty (60) day period of ECC's election to exercise its right to purchase
hereunder, or in the event ECC notifies CITY within said period that ECC will not exercise its
right to purchase hereunder, CITY may proceed to sell or transfer the ECC RFN Parcel (or such
part thereof or interest therein) to any third party after the expiration of such sixty(60) day period,
but only on substantially the same terms and conditions as were set forth in the notice from CITY
to ECC, and any material change in such terms and conditions shall be deemed a new offer and
CITY shall in such event not consummate any sale to a third party without first submitting all of
the changed terms and conditions (and not just those which have changed substantially or
materially)to ECC for determination by ECC in the manner provided above, except that ECC shall
have thirty(30)business days, and not sixty(60) days, after receipt of said notice in which to elect
to exercise its right to purchase on the basis of the changed terms and conditions. For these
purposes, the offer shall be deemed to have been changed substantially or materially only if the
purchase price at which the ECC RFN Parcel (or such portion thereof or interest therein) are
offered differs by more than three percent(3%) from the purchase price previously offered. ECC's
right of purchase set forth herein shall apply only for so long as CITY shall be the owner of the
ECC RFN Parcel. Upon any sale by CITY of the ECC RFN Parcel to any third party (provided
that, as to such sale, CITY shall have given notice to ECC of the terms and conditions on which it
intended to offer the Property for sale as and to the extent herein provided, and ECC shall have
elected not to exercise its right of purchase with respect to such terms and conditions on the terms
set forth herein), ECC's right of purchase shall immediately terminate and be of no further force or
effect. In the event the CITY's notice to ECC hereunder is related to a proposed lease of more than
ten(10) consecutive years by the CITY for the ECC RFN Parcel, ECC's right to purchase the ECC
RFN Parcel shall be for a purchase price of the fair cash market value of the ECC RFN Parcel at
the time of such notice as agreed to by the CITY and ECC. In the event the CITY and ECC are
unable to agree on the fair cash market value of the ECC RFN Parcel, the fair cash market value
shall be determined by an appraisal of such property prepared by an MAI Appraiser selected
jointly by the CITY and ECC. In the event either ECC or the CITY do not approve of the fair cash
Page 40
, ,
market value for the ECC RFN Parcel as determined by such appraiser, either party shall give
notice to the other party within thirty (30) days of the receipt of such appraisal that it does not
approve of such fair cash market value. In such event, ECC and the CITY shall jointly select a
second MAI appraiser to prepare an appraisal to determine the fair cash market value of the ECC
RFN Parcel. The purchase price of the ECC RFN Parcel shall then be the average of the two
appraisals. The costs of any such appraisal(s) shall be shared equally by the CITY and ECC.
B. The provisions of this Paragraph B shall apply only if and to the extent that any
terms and conditions as to which ECC has exercised its right of purchase pursuant to Paragraph A
do not provide to the contrary. The purchase and sale of the ECC RFN Parcel or portion thereof or
interest therein pursuant to ECC's exercise of the right of purchase set forth in Paragraph A shall be
closed on or before one hundred and eighty (180) days after the exercise of said right of purchase
(the"Closing Date"). CITY shall convey to ECC,by Special Warranty Deed, fee simple title to the
ECC RFN Parcel or portion thereof or interest therein ) or such portion thereof as shall not have
been taken by eminent domain in the event of such taking prior to the Closing Date), subject only
to: (a) general real estate taxes not yet due and payable as of the Closing; (b) public utility
easements; (c) zoning laws, statutes and ordinances; (d) title exceptions which do not prohibit
ECC's intended use of the Property for public educational purposes; (e) restrictions contained in
House Bill 1868, as amended by subsequent legislation,restricting the use of the ECC RFN Parcel
for public education and recreational purposes; (f) other matters of title over which the title
company issuing the title insurance policy to be issued to ECC is willing to insure without cost to
ECC; and(g) such other matters as may be created, suffered to be created, or consented to by ECC,
which consent shall not be unreasonably withheld(including,without limitation, any leases then in
effect). If there is a condemnation of any material portion of the ECC RFN Parcel after the date on
which ECC gives the notice of exercise of its right of purchase pursuant to the provisions of
paragraph A and prior to the Closing Date, ECC may at its option either (a) terminate its proposed
purchase of the ECC RFN Parcel, or (b) proceed to close the transaction on the purchase of the
ECC RFN Parcel and receive at closing either a credit towards the purchase price in the amount of
the condemnation award, in the case of a completed condemnation, or an assignment of all rights
in condemnation, in the case of a pending condemnation. All risk of loss to the ECC RFN Parcel
shall remain upon the CITY prior to the closing of the sale to ECC. In the event of any damage to
or destruction of all or a material part of the ECC RFN Parcel prior to closing, ECC may at its
option (a) terminate its proposed purchase of the ECC RFN Parcel, or (b) proceed to close the
transaction contemplated herein and receive at closing a payment of or an assignment of all
amounts recovered or recovered by CITY on account of insurance on the ECC RFN Parcel, less
any amounts reasonably expended by the CITY for restoration, plus an amount equal to the
CITY's deductible under such insurance. . CITY shall convey to ECC any personal property
described in the notice of terms and conditions of the intended offer delivered by CITY, and as to
which ECC has exercised its right of purchase, by bill of sale, without warranty, express or
implied,of any kind. The cost of the premium for the title insurance policy to be issued to ECC on
the Closing Date, any recording payable with respect to the conveyance, and all other costs of the
closing shall be paid by ECC. . The parties understand and agree that the ECC RFN Parcel is
currently exempt from general real estate taxes. In the event general real estate taxes are
assessed against the ECC RFN Parcel prior to the Closing, such general real estate taxes for the
property shall be prorated as of the date of the Closing. Upon any conveyance to ECC, CITY
Page 41
•
' ,, � r
agrees to the extent permitted by law to consent to the ECC RFN Parcel being zoned CF to allow
the use of the land for educational purposes if it not so zoned at the time of conveyance to ECC.
C. All notices herein provided shall be simultaneously given to any mortgagee.
D. The CITY agrees that in order to give the rights granted to ECC herein full effect,
the CITY shall not enter into any contract, agreement, pledge, subordination, mortgage or the like
affecting the ECC RFN Parcel or any interest therein that cannot be satisfied and extinguished at
any time by the payment of consideration not in excess of the fair market value of such parcel. The
City also agrees to permit no easements to be created affecting the ECC RFN Parcel that would
•
interfere with ECC's future use of the parcel for college purposes. The CITY shall be required to
secure written consent from ECC before creating and recording any such encumbrance, lien or
easement,which consent will not be unreasonably withheld or delayed.
•
2. CAPTIONS. The captions used herein have been utilized for convenience only
and are not intended to modify or limit in any way the provisions hereof.
3. PRIOR AGREEMENTS. This Memorandum of Agreement is intended to
memorialize the Intergovernmental Agreement between the parties dated as of January 27, 2010
and may only me amended by a written instrument executed by both ECC and the CITY or their
authorized agents.
4. COOPERATION. The parties agree to cooperate with one another and to perform
such functions as are necessary or required by law to effectuate this Agreement.
5. PERFORMANCE. The parties' obligations to perform under the terms of this
Agreement are specifically conditioned upon the performance of all acts required of the parties
by law. This Agreement represents the complete understanding of both parties.
6. TERM. This Agreement shall be in full force and effect until amended or
cancelled by the Parties.
7. INCORPORATION. The terms, conditions, representations and contingencies of
the Intergovernmental Agreement between the parties dated as of January 27, 2010are
incorporated herein and made a part hereof as if set forth in full. The contingencies set forth in
the Intergovernmental Agreement shall be contingencies applicable to the performance of the
parties in all aspects of this Agreement.
8. MISCELLANEOUS.
A. Time is of the Essence. Time is of the essence of this Agreement.
(1) Written Demands. All notices, demands, and requests required or
permitted under this Agreement shall be in writing.
Page 42
(2) Notices. All notices, demands, and requests required or permitted
hereunder shall be deemed to have been properly made on the day of
service if served personally, and on the second day following mailing if
sent by United States Certified Mail, postage prepaid, return receipt
requested, addressed as follows:
If to the CITY: City of Elgin
Attn: City Manager
150 Dexter Court
Elgin, IL 60120
With a copy to: William A. Cogley, Esq.
Corporation Counsel
150 Dexter Court
Elgin, IL 60120
If to ECC: Elgin Community College
Attn: President
1700 Spartan Drive
Elgin, IL 60123
With a copy to: John F. Early, Esq.
Early, Tousey,Regan&Wlodek
2400 Big Timber Road, Suite 201A
Elgin, IL 60124
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on the day and year first above written.
CITY OF ELGIN, an Illinois Municipal Corporation
By: '44tigre,,,e(cdefla
ayor
ATTEST:
BY: v.e.
City Clerk
Page 43
COMMUNITY COLLEGE DISTRICT NO. 509,
an Illinois Community College
C
By: 1;:DIA.
resident
ATTEST:
By: C— ��
Board Secretary ,or " e..r-c77 . _
STATE OF ILLINOIS )
) SS
COUNTY OF KANE )
I, the undersigned, a Notary in and for said County, in the State aforesaid, DO HEREBY
CERTIFY that Ed Schock, as Mayor, and Diane Robertson, as City Clerk, of the City of Elgin
personally known to me to be the Mayor and City Clerk of said municipal corporation, appeared
before me this day in person and acknowledged that they signed, sealed, and delivered said
instrument as such Mayor and City Clerk of the City, and as the free and voluntary act of the
City, pursuant to authority duly given by Resolution of the City Council and the uses and
purposes therein set forth.
-7/-)
Given under my hand and official seal this o?7 day o , 2010.
of Pu
«at
STATE OF ILLINOIS ) g; �,:.�.t, .�.� .,,
) SS N nary uta:}r„, ,to of'llinois
COUNTY OF KANE ) My Corrrm+-s+r:n E' x�ir�s Of_,13r2012 ;
I, the undersigned, a Notary in and for said County, in the State aforesaid, DO HEREBY
CERTIFY that Dr. David Sam, as President, and Kathleen Stover, as Board Secretary, of
Community College District No. 509 personally known to me to be the President and Board
Secretary of said Community College, appeared before me this day in person and acknowledged
that they signed, sealed, and delivered said instrument as such President and Board Secretary of
the Community College pursuant to authority duly given by Resolution of the Board of Trustees,
Page 44
1
and as its free and voluntary act of the Community College, for the uses and purposes therein set
forth.
d
Given under my hand and official seal this u n day ofA,(yucu , 2010.
9414/X1 A athu-(16
Notary Public
" OFFICIAL SEAL "
•
ROBIN S. ARNOLD
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES -,/3/2012
Page 45
AERIAL MAP
EXHIBIT "B"
Aerial photograph of the parcels described herein as Exhibits B-1, B-2 and B-3 (see attachment)
Page 46
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ECC RFN PARCEL
EXHIBIT"B-2"
Legal description of property subject to the RFN:
(TO BE INSERTED BY THE PARTIES BY MUTUAL AGREEMENT AT LATER DATE.)
Page 47
OFf<
City of Elgin
ti
Mayor
Ed Schock
$ 'Plribv 'v� Council Members
Richard G. Dunne
Robert Gilliam
David J. Kaptain
John H. Prigge
F. John Steffen
Mike Warren
City Manager
February 10,2010 Sean R. Stegall
John Early
Early, Tousey,Regan&Wlodek
2400 Big Timber Road
Suite 201A
Elgin, IL 60124
RE: Intergovernmental Agreement between the City of Elgin and Elgin Community College
for the Exchange of Real Estate and Improvements
Dear John:
Attached please find two fully executed copies of the above-referenced agreement. Thank you for
your cooperation in this matter.
Very truly yours,
\A(
VI(
William A. Cogley
Corporation Counse
l
WAC/mg
Attachment
cc: City Clerk(w/attachment)
150 Dexter Court • Elgin, IL 60120-5555 • Phone 847/931-6100 • Fax 847/931-5610 • TDD 847/931-5616
m _ _ _ _ www.cityofelgin.org_