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HomeMy WebLinkAbout20-176Resolution No. 20-176 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT FOR TRANSFER OF REAL PROPERTY TO ELGIN CHARTER SCHOOL INITIATIVE (1600 Dundee Avenue, Elgin, Illinois) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with the Elgin Charter School Initiative, for the transfer of real property located at 1600 Dundee Avenue, Elgin, Illinois, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented:: December 16, 2020 Adopted: : December 16, 2020 Vote: Yeas: 8 Nays: 0 Abstain: Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT FOR TRANSFER OF REAL PROPERTY TO ELGIN CHARTER SCHOOL INITIATIVE (1600 Dundee Avenue, Elgin, Illinois) This Agreement ("Agreement") is made and entered into as of the 16a` day of December, 2020, by and between the City of Elgin, Kane County, Illinois, an Illinois municipal corporation, organized and existing under the laws of the State of Illinois, ("City") and the Elgin Charter School Initiative, an Illinois not for profit corporation, organized and existing under the laws of the State of Illinois, ("Charter School"). WHEREAS, the City is the beneficial owner of a parcel of real property commonly known as 1600 Dundee Avenue, Elgin, Illinois, 60120, and legally described as set -forth in Exhibit A, attached hereto and incorporated herein by reference (the "Property"); and WHEREAS, the City currently leases the Property to the Charter School for the operation of a charter school; and WHEREAS, the Charter School has requested and the City has agreed to transfer its ownership of the Property to the Charter School pursuant to the terms of this Agreement; and WHEREAS, pursuant to Article V.II Section 6 of the constitution of the State of Illinois, the City is a home rule unit, and as a home rule unit, may exercise any power and perform any function pertaining to its government and affairs; and WHEREAS, the City Council of the City of Elgin has determined that it would benefit the City of Elgin and serve a public purpose to transfer the Property to the Charter School for the continued use of the Property for the operation of a charter school; and WHEREAS, the transfer of the City owned Property pertains to the government and affairs of the City. NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises contained herein below, the City and the Charter School hereby agree as follows: 1. The foregoing recitals are hereby incorporated and adopted as if fully set forth herein. 2. Within thirty (30) days after the date on which this Agreement has been approved by both parties, the City agrees to transfer, and the Charter School agrees to accept ownership of the Property on the terms and conditions set forth herein. 3. The City shall convey, or cause to be conveyed to the Charter School, title to the Property by quit claim deed. The City's conveyance to the Charter School of title to the Property is without any representation or warranty with respect to the title and shall be subject to all matters affecting title to the Property whether of record or otherwise including but not limited to the following: the Restrictive Covenant limiting the use of the Property for the Charter School Use as provided in Section 7 of this Agreement; the Charter School's obligation to reconvey title to the Property to the City in the event of the closing of the charter school on the Property as provided in Section 8 of this Agreement; the City of Elgin's Right of First Refusal as provided in Section 9 of this Agreement; the City of Elgin's reservation of an easement through the Property for the Kane County Forest Preserve District and its invitees for ingress and egress to the Kane County Forest Preserve District property westerly of the Property as provided .in Section 10 of this Agreement; the provisions of Section I 1 of this Agreement, including, but not limited to, the "AS IS" provisions and the covenant not to sue provisions; the terms and requirements of a conservation easement recorded on January 2, 2014, as Document No. 2014K000200; a month to month lease of the Molter House referenced in Section 12 of this Agreement; and general real estate taxes, if any. 2 4. The Charter School shall be solely responsible for recording the deed and all costs associated therewith. The Charter School shall within ten (10) business days of the delivery of the deed for the Property by the City record such deed with the Kane County Recorder and within ten (10) business days thereafter provide the City a copy such recorded deed. 5. The City shall not be required to provide either a Title Commitment or Title Insurance Policy, nor shall the City be required to provide a survey. It shall be the sole responsibility of the Charter School should it desire, to procure a Title Commitment and survey 6. There shall be no prorations in connection with the City's transfer of ownership of the Property to the Charter School. 7. The Property shall be used and occupied by the Charter School for educational and administrative purposes for grades kindergarten through eighth grade and for any other grade levels as to which the Charter School's charter may from time to time apply consistent with the Charter School's charter for the charter school, and for any uses accessory thereto (the "Charter School Use"), and for no other purpose or purposes. The Charter School may also rent portions (but not all) of the Property to other organizations or persons for temporary special events for fundraising purposes to support the Charter School consistent with the zoning restrictions on the Property, as amended. The Charter School may also continue with the current lawful nonconforming use of the Molter House as described in Section 12 of this Agreement. The foregoing restriction on the use of the Property shall constitute a restrictive covenant regarding the use of the Property for the Charter School Use ("Restrictive Covenant") and shall be binding on the Charter School, its successors and/or assigns. Such Restrictive Covenant regarding the Charter School Use shall remain in full force and effect until (i) the closing of the Charter School on the Property and the 3 offered reconveyance of the Property to the City pursuant to Section 8 hereof; (ii) the City declining to exercise its right of first refusal to purchase the Property pursuant to Section 9 of this Agreement, in which case the Restrictive Covenant shall lapse with respect to the portion of the Property sold pursuant to such a Purchase Offer; (iii) a judicial sale of the Property or conveyance of the Property pursuant to a mortgage foreclosure action (including, but not limited to, a deed in lieu of foreclosure), for any mortgage(s) recorded against title to the Property; or (iv) unless, and until, the City Council of the City of Elgin agrees in its sole discretion to release such Restrictive Covenant. In the event the Charter School is declared to be in default with respect to any loan(s) or mortgage indebtedness relating to the Property, or in the event a mortgage foreclosure action is commenced with respect to any loan(s) or mortgage(s) with respect to the Property, the Charter School shall provide the City written notice thereof within five (5) business days of any such occurrence. The City's conveyance to the Charter School of title to the Property shall be subject to this Restrictive Covenant and shall survive the conveyance of title of the Property from the City to the Charter School. 8. In the event of the closing of the charter school on the Property, title to the Property shall be reconveyed by the Charter School to the City at no cost to the City (other than the payment to the lender(s) of the balance of any then existing mortgage(s) recorded by lender(s) against title to the Property to secure loan(s) obtained by the Charter School to make improvements to the Property as provided below), subject to the City's determination to accept the reconveyance of title to the Property. For the purposes of this Agreement, the "closing of the Charter School" shall mean (a) the Charter School's charter has been non - renewed or revoked by its authorizer, (b) the Charter School has fully exhausted its L! statutory rights to appeal said non -renewal or revocation, and (c) the authorized charter school operations by the Charter School have been discontinued. Prior to the conveyance of title to the Property by the City to the Charter School pursuant to this Agreement, the Charter School shall amend its articles of incorporation and bylaws to incorporate such foregoing provision in this section into its articles of incorporation and bylaws. The Charter School shall also, as soon as is reasonably practicable, but not later than at the next renewal of the charter for the charter school, use its best efforts to negotiate a new provision within the contract for the charter school the provision in this section regarding the reconveyance of title to the Property to the City in the event of the closing of the charter school on the Property. The Charter School shall report in writing to the City not later than at the next renewal of the charter for the Charter School, of its efforts to negotiate such a new provision within the contract for the Charter School, and shall provide the City the contract for the Charter School, as amended, upon the renewal of the charter for the Charter School. The City and the Charter School acknowledge and agree that the City is donating the Property to the Charter School and that the Property is not being purchased by the Charter School with public funds. The City and the Charter School further agree that the provisions of 105 1LCS 5/27A-10.10(b), which provides in relevant part that upon the closing of a charter school authorized by the Commission, if the application and contract of a charter school are silent or ambiguous as to the disposition of any of the school's property or assets, any property or assets of the charter school purchased with public funds shall be returned to the school district from which the charter school draws its enrollment, shall not apply to the Property upon the closing of the charter school. In the event the City elects to accept the reconveyance of title to the Property, said reconveyance to the City E shall be by quit claim deed and subject to all matters of record with respect to the Property existing at the time of the City's conveyance of the property to the Charter School, and it shall be a condition of such a reconveyance of title to the Property to the City that the balance of any then existing mortgages) recorded by lender(s) against title to the Property to secure loan(s) obtained by the Charter School to make improvements to the Property shall be paid off at the time of such a reconveyance to the City. in the event of the closing of the Charter School on the Property, the provisions of this Section 8 and the Charter School's obligation to reconvey the Property to the City as provided in this Section 8, shall supersede and control over the provisions of Section 9 of this Agreement. The City's conveyance to the Charter School of title to the Property shall be subject to the provisions of this section and shall survive the conveyance of title to the Property by the City to the Charter School. 9. In the event the Charter School receives an offer acceptable to the Charter School at any time for the purchase of the Property or any part thereof ("Purchase Offer"), then (i) the Charter School, prior to acceptance thereof, shall give the City written notice thereof and a copy of said Purchase Offer including the name and address of the proposed purchaser, and (ii) the City shall have the option and right ("Right of First Refusal") to purchase the portion of the Property that is subject to the Purchase Offer on the same terms and conditions as are contained in the Purchase Offer, subject to the following: (a) The City shall have sixty (60) days from its receipt of the Purchase Offer within which to exercise the Right of First Refusal; (b) Closing under the exercise ofRight of First Refusal shall be not later than one hundred and twenty (120) days from the City's receipt of the Purchase Offer; 6 (c) The price to be paid by the City (the "City's Acquisition Price"), if it shall exercise the Right of First Refusal shall be (i) the price stated in the Purchase Offer less (ii) One Million Dollars ($1,000,000), if the Purchase Offer is for the entire Property, and if the Purchase Offer is less than the entirety of the. Property, the percentage of $1,000,000 of the percentage based upon square footage of the Property being sold. In the event the City exercises its Right of First Refusal to purchase the Property that is subject to the Purchase Offer, and the Purchase Offer contemplates the payoff of then any existing mortgage(s) recorded by lender(s) against title to the Property to secure loan(s) obtained by the Charter School to make improvements to the Property, it shall be a condition of such a purchase of the Property by the City pursuant to this Right of First Refusal to pay off the balance(s) of any such then existing mortgage(s) notwithstanding the calculation of the purchase prices in subparagraph (c) above, and if the Purchase Offer is less than the entirety of the Property, the percentage of the balance(s) of such then existing mortgage(s) based upon square footage of the Property being sold. The City's conveyance to the Charter School of title to the Property shall be subject to this Right of First Refusal and shall survive the conveyance of title to the Property by the City to the Charter School. 10. The City further reserves and retains a right of ingress and egress through the Property for the Kane County Forest Preserve District and its invitees for ingress and egress through the Property to access to the Kane County Forest Preserve District property westerly and adjacent to the Property. The City's conveyance to the Charter School of title to the Property shall be subject to this reservation and right of ingress and egress easement and shall survive the conveyance of title to the Property by the City to the Charter School. 7 11. It is agreed and understood that the City is conveying the Property to the Charter School including, but not limited to, all improvements thereon and appurtenances thereto, in "AS IS" condition. (a) The parties hereto further understand and agree that the City shall have no responsibility for any response or corrective actions or remediation of any Environmental Condition (as hereinafter defined) at, on, under or about the Property and that the Charter School hereby waives and releases any claim for contribution against, and covenants not to sue the City, or the City's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors or assigns, whether asserted directly or indirectly, or whether in the nature of an action for contribution, third party proceeding or other action or proceeding whatsoever, for all damages including, without limitation, punitive damages, liabilities, costs, losses, diminutions in value, fines, penalties, demands, claims, cost recovery actions, lawsuits, administrative proceedings, orders, response action costs, compliance cost, investigation expenses, consultants fees, attorneys fees, paralegal fees and litigation expenses (collectively "Claims"), arising out of or in connection with any Environmental Condition (as hereinafter defined) on the Property or its migration to any other site or location or arising out of or in connection with any Environmental Law (as hereinafter defined). (b) The Charter School hereby acknowledges and agrees that it is acquiring the Property in its "as is" and "where is" condition and that, as of the transfer of the Property from the City to the Charter School, the Charter School will be acquiring the Property with no direct recourse or direct rights of action against the City or the City's former, current 8 and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors or assigns. (c) The Charter School for itself and its successors, assigns, and grantees, hereby covenants and agrees that in consideration of this Agreement, neither the Charter School nor its successors or assigns shall directly or indirectly site the City or the City's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors or assigns- for any Claims with respect to, or arising out of any Environmental Condition (as hereinafter defined) or any other condition of, or situation existing with respect to the Property or any Environmental Law (as hereinafter defined). The covenant and agreement of the Charter School as set forth in the preceding sentence shall hereinafter be called the "Covenant Not to Sue". The parties hereto understand and agree that the Charter School's Covenant Not to Sue the City as stated herein does not apply to any action taken by the Charter School to enforce any contractual obligations of the City as may be specifically set forth in this Agreement and does not constitute an indemnity agreement between the parties and that the City retains any liability it may have for claims brought by third parties including but not limited to any governmental agencies, provided, however, that the Charter School agrees not to assign any claims against the City or the City's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors and assigns to any third parties. (d) "Environmental Condition" shall mean any condition or situation existing on, under, at or about the Property, any improvements thereon, the groundwater, subsurface water, and/or the underground soil and geologic conditions thereunder, as of the date of the 9 execution of this Agreement which (i) constitutes a violation of any State of Illinois or federal environmental law, regulation or ordinance and/or (ii) which does or might form the basis of any public or private claim or cause of action for the cleanup or remediation as a result of the release, threatened release, migration or the existence of any contaminants, pollutants, petroleum and petroleum byproducts, crude oil or any fraction thereof, chemicals, asbestos, wastes or substance (including, without limitation, regulated substances and hazardous wastes and hazardous substances as such terms are commonly used and understood within the framework of existing federal and Illinois environmental laws and regulations) and/or (iii) are a release or -a threat of release of hazardous substances or hazardous waste, and/or (iv) are described or included in any report provided by the City to the Charter School or in any report generated by the Charter School's investigations of the Property. (e) "Property" shall mean the Property described on Exhibit A attached hereto, any and all improvements thereon, and the soils, subsoils, geologic formations and groundwater on and under such Property. (f) "The City" shall mean the City of Elgin and the City's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors, assigns and grantees. (g) The City's conveyance to the Charter School of title to the Property shall be subject to the provisions of this Section 11 and the provisions of this Section I shall survive the conveyance of title to the Property by the City to the Charter School. 12. In addition to other matters, the City's conveyance to the Charter School of title to the Property shall be subject to a month to month lease for the Molter House dated May 9, 10 2017. The City acknowledges that as of the entry into this Agreement that the current residential use of the Molter House on the Property pursuant to such month to month lease is a lawful nonconforming use and that such residential lawful nonconforming use of the Molter House may continue as provided by law. 13. Upon the delivery of the deed for the Property by the City to the Charter School, the Lease Agreement between the City and the Charter School, dated July 26, 2017, (the "Lease") is and shall be terminated and of no further force and effect and with no further liability for either party thereto under the provisions of such lease. Additionally, upon the delivery of the deed for the Property by the City to the Charter School, the City and the Charter School on behalf of themselves and their respective successors and assigns hereby release and forever discharge each other and each other's former, current and future officials, officers, board members, employees, agents, attorneys, heirs, personal representatives, insurance companies, successors and assigns from any and all known or unknown claims, actions, or liabilities arising out of or relating to the Lease, the Property, and/or any improvements on the Property existing as of the date of delivery of the deed for the Property by the City to the Charter School. The foregoing release does not apply to claims for breach of this Agreement or to actions to enforce this Agreement. The provisions of this Section shall survive the conveyance of title to the Property by the City to the Charter School. 14. The City and the Charter School each warrant to the other that they have dealt with no real estate broker in connection with this transaction. Each party agrees to indemnify, hold harmless and defend the other party from any loss, costs, damages or expense (including reasonable attorneys fees) arising out of a breach of the warranty contained in this Section 14. 11 15. The City and the Charter School agree that, in the event of a default by either party the other party shall, prior to taking any such action as may be available to it, provide written notice to the defaulting party stating that they are giving the defaulted party thirty (30) days within which to cure such default. If the default shall not be cured within the thirty (30) days prior aforesaid, the party giving such notice shall be permitted to avail itself of remedies to which it may be entitled at law or in equity. Notwithstanding the foregoing, or anything to the contrary in this Agreement, no action for monetary damages shall be filed, brought or maintained by the Charter School, and/ or its successors and or assigns against the City and/ or any of the City's former or current officials, officers, employees, agents, attorneys, heirs, personal representatives and their successors and assigns. 16. Time is of the essence of this Agreement. 17. All notices herein required shall benn writing and shall be served on the parties at the addresses following their signatures. The mailing of a notice by registered or certified mail, return receipt requested, or personal delivery by courier service shall be sufficient service. Notices may also be served on the attorneys for the parties by email or by use of a facsimile machine with proof of transmission and a copy of the notice with proof of transmission being sent by regular mail on the date of transmission. 18. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. 19. This Agreement may be modified or amended only in writing signed by the parties hereto, or their permitted successor or assigns, as the case may be. 12 20. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations hereunder may not be assigned without the express written consent of each of the parties hereto. 21. The provisions set forth herein represent the entire agreement between the City and the Charter School and supersede any previous oral or written negotiations and agreements regarding the Property, including, but not limited to, the July 26, 2017 Lease between the City and the Charter School for the Property. No provision hereof may be modified in any respect unless such modification is in writing and signed by both the City and the Charter School. 22. This Agreement shall be governed by and construed solely in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 23. This Agreement is and shall be deemed to construed to be a joint and collective work product of the City and the Charter School and, as such, this Agreement shall not be construed against either party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistencies, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 24. The City may record a memorandum of this Agreement placing of record the terms, provisions and obligations of this Agreement. 25. This Agreement contains the entire agreement between and among the parties on the matters provided for herein. This Agreement may only be amended in a writing adopted by each party. 13 26. This Agreement may be executed in counterparts, each of which shall be an original .and all of which shall constitute one and the same agreement. The persons executing this Agreement on behalf of the Charter School and the City each represent that they have duly authorized to execute this Agreement. This Agreement may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the force and effect as an original signature. Without limitation, "electronic signature" shall include fax versions of an original signature or electronically scanned and transmitted versions (e.g., PDF) of an original signature. TRANSFEROR: CITY OF ELGIN B ! y: Mayor Attestv�vv.,,�.O�� Clerk Date: December 16 , 2020 City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Attention: Mayor with a copy of notice to: TRANSFEREE: ELGIN CHARTER SCHOOL INITIATIVE By: PreJent,Boardof Directors . AttestL—, •. �'t 1 '/i ..Secretary, Board of Dfrecto Date: December, 2020 Elgin Charter School Initiative 1600 Dundee Avenue Elgin, IL 60120 Attention: Kerry Kelly, Board President with a copy of notice to: William A. Cogley Eric Grodsky Corporation Counsel Attorney at Law City of Elgin Hauser, Izzo, Petrarca, Gleason & Stillman, LLC 150 Dexter Court 19730 Governors Highway, Suite 10 Elgin, Illinois 60120-5555 Flossmoor, Illinois 60422 847-931-5659 708-799-6766 847-931-5665 (facsimile) 708-799-6866 (facsimile) Cogley wncityofel ilorg egrodsky@hauserizzo.com FALegal DeptlAgreemendTransfer Agreement -Elgin Charter School Initiative-Clean-12-3-20.doex 14 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 15 Reg Ulm V 11 AM w 333 3 3 3 M;:gas a � � RRSwa&Fi'_"3gg8g�&N�RR.`•�CS$$€m gg,��a ygRwg$gF� S� �EE E EE� �EEEEg� Es9 ll Fog�lab4gg8 sas„_: "sss��asags 8E S �' � F^S 'elf es9 ee.I$ fill LT F{a Y gs`F[''ja5F PIC g" A � ' P O X v IIUIHX21 z a p �a F all4 a a ]!Ilia its 41 �I - di ELGIN MATH AND SCIENCE ACADEMY CHARTER SCHOOL RESOLUTION AUTHORIZING REAL ESTATE TRANSFER AGREEMENT WITH THE CITY OF ELGIN WHEREAS, EMSA currently leases property from the City of Elgin at which it operates the Elgin Math and Science Academy Charter School ("Property"); and WHEREAS, the Board of Directors wish to purchase the Property from the City of Elgin, pursuant to the terms and conditions as set forth in the Transfer Agreement attached hereto as Exhibit A and incorporated herein by reference. WHEREAS, the Board of Directors are authorized under Illinois law to enter into the Transfer Agreement (105 ILCS 5/27A-5); and WHEREAS, the Board of Directors hereby find that the purchase of the Property is in the best interests of EMSA. NOW, THEREFORE, Be It Resolved by the Board of Directors of the Elgin Math and Science Academy Charter School as follows: Section 1. The foregoing recitals are incorporated herein by reference. Section 2. The Board hereby approves the Transfer Agreement attached hereto as Exhibit A. Section 3. The President is authorized and directed to execute an original of the Transfer Agreement and deliver the same to City of Elgin. Section 4. The President is further authorized to take any and all steps necessary and pay any and all cost necessary to effectuate the conveyance of the property pursuant to the terms of the Transfer Agreement. Section 5. This resolution shall take effect upon its adoption. BOARD OF DIRECTORS, ELGIN MATH AND SCIENCE ACADEMY CHARTER SCHOOL 1 By: DATE: Z President Attest �'°` �C `� DATE: Secretary l STATE OF ILLINOIS ) ) SS COUNTY OF KANE ) CERTIFICATION OF RESOLUTION I, the undersigned, do hereby certify that I am the duly qualified and acting Secretary of the Board of Directors of the Elgin Math and Science Academy Charter School, Kane County, Illinois, and that as such official I am the keeper of the records and files of the Charter School. I do further certify that the foregoing is a full, true and complete copy of a resolution entitled: RESOLUTION AUTHORIZING EXECUTION OF REAL ESTATE TRANSFER AGREEMENT WITH THE CITY OF ELGIN which said resolution was adopted at a meeting of the Board held on the 41 day of December, 2020. I do further certify that the deliberations of the Board on the adoption of said resolution were conducted openly, that the vote on the adoption of said resolution was taken openly, that said meeting was held at a specified time and place convenient to the public, that notice of said meeting was duly given to all of the news media requesting such notice, that said meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, the School Code of the State of Illinois, as amended and that the Board has complied with all of the provisions of said Acts and said Codes and with all of the procedural rules of the Board. IN WITNESS WHEREOF, I hereunto affix my official signature jthi day of 2020. 1 OA