13-71 ti
Resolution No. 13-71
RESOLUTION
AUTHORIZING EXECUTION OF A REAL ESTATE SALES AGREEMENT
WITH MAX MCGRAW WILDLIFE FOUNDATION
(1600 Dundee Avenue)
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 a real estate sales agreement with Max McGraw Wildlife Foundation on behalf of
the City of Elgin for the purchase of property commonly known as 1600 Dundee Avenue for
$2,600,000.00, in substantially the form of the real estate sale agreement attached hereto with such
revisions thereto as approved by the corporation counsel.
David J. Kaptain, Mayor
Presented: April 10, 2013
Adopted:
Vote: Yeas Nays:
Recorded:
Attest:
Kimberly A. Dewis, City Clerk
REAL ESTATE SALE AGREEMENT
THIS AGREEMENT is made and entered into this 10th day of April, 2013, by and
between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as
"Purchaser") and Max McGraw Wildlife Foundation, an Illinois not-for-profit corporation
(hereinafter referred to as "Seller").
RECITALS
A. Seller has as of March 14, 2013, contracted with American Real Estate Investments
NO. 7, LLC, an Illinois limited liability company to purchase title to real estate comprising
approximately 56.77 acres and improved with certain buildings, all commonly known as 1600
Dundee Avenue, Elgin, Illinois, Kane County, Illinois and which is legally described on Exhibit
A, which, together with all improvements thereon and all easements, covenants, tenements,
hereditaments and appurtenances thereunto belonging or appertaining shall hereinafter be
collectively called the "Real Estate". A copy of Seller's contract to purchase the Real Estate is
attached hereto as Exhibit D.
B. Purchaser desires to purchase the Real Estate from Seller, with the exception that
Seller shall exclude from this transaction approximately 6.8812 acres more or less as described in
Exhibit B, and Seller desires to sell such Real Estate to Purchaser, upon the terms and conditions
hereinafter set forth.
C. In connection with the execution of this Agreement, Purchaser anticipates entering
into an Intergovernmental Agreement with the Illinois State Toll Highway Authority and the Forest
Preserve District of Kane County, through which:the Purchaser is to obtain funds for the purchase
of the Real Estate from the Seller (hereinafter referred to as the "Intergovernmental
Agreement").
CONSIDERATION
In consideration of the mutual covenants and promises of the parties, Seller and Purchaser
hereby covenant and agree as follows:
AGREEMENT
1. Sale and Purchase. Seller agrees to sell and Purchaser agrees to purchase the Real
Estate upon the terms and conditions herein set forth for a purchase price of Two Million Six
Hundred Thousand Dollars ($2,600,000.00) (hereinafter referred to as the "Purchase Price").
2. Conveyance: Seller agrees to convey, or cause to be conveyed, to Purchaser, or
Purchaser's nominee, title to the Real Estate subject only to: (a) general real estate taxes not due
and payable as of the date of the closing hereof; (b) acts of Purchaser and those parties acting
through or for Purchaser; (c) zoning laws, statutes and ordinances; (d) covenants, conditions and
restrictions of record; (e) special assessments for improvements not yet completed; and (f) those
additional matters set forth on attached Exhibit C hereto.
3. Payment of Purchase Price: The Purchase Price, plus or minus prorations, shall be
paid by Purchaser at the Closing into the closing escrow of the title company, Chicago Title
Insurance Company(hereafter called"CTIC"), via wire transfer of United States currency.
4. Closing:
(a) The consummation of the transaction herein described (hereinafter referred
to as the "Closing") shall be on April 15, 2013, and the Closing shall occur
simultaneously with the closing of Seller's purchase of the Real Estate in
accordance with Seller's contract to purchase set forth as Exhibit D, unless
subsequently mutually agreed otherwise, at the office of the Title Insurer in
Elgin,.Illinois or at such other location as is acceptable to Purchaser and
Seller. At the Closing, the parties shall deliver all documents required by
this Agreement.
(b) The transaction herein contemplated shall be closed through an escrow with
CTIC, in accordance with the general provisions of the usual form of Deed
and Money Escrow Agreement then in use by said company, with such
special provisions inserted in the escrow agreement to permit an immediate
("New York-Style") closing and as otherwise may be required to conform
with this Agreement. Upon the creation of such an escrow, anything herein
to the contrary notwithstanding, payment of the Purchase Price and delivery
of deed shall be made through the escrow and the cost of said escrow shall
be shared equally by the parties.
(c) At the Closing, Seller shall deliver to Purchaser the following documents
and tender the following performance:
(i) A Special Warranty Deed ("Deed"), conveying title to the Real
Estate, in the condition required herein,to Purchaser or its nominee;
(ii) An Illinois Transfer Declaration;
(iii) A City of Elgin transfer stamp;
(iv) Pay-off letters or releases with respect to any mortgages of record;
(v) A Non-Foreign Affidavit, prepared in compliance with the
requirements of Internal Revenue Code section 1445(e), from the
Seller;
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(vi) An ALTA statement in the form customarily required by CTIC;
(vii) A so-called GAP Undertaking in the form customarily required by
CTIC in order to conduct the Closing as a so-called "New York
Style" closing, together with such affidavits as are customarily
required by Title Insurer in connection with issuance of the Owner's
Title Insurance Policy, described in Paragraph 7 below, including a
mechanics' lien and judgment affidavit;
(viii) a "bring-down" certificate, executed by Seller, stating that Seller's
representations and warranties contained herein are true and correct
as of the Closing Date or, alternatively, stating which of said
representations and/or warranties are no longer true and correct as of
the Closing Date (along with a specific explanation for such
statement);
(ix) Certified resolutions of the Seller's governing authority authorizing
the execution and performance of this Agreement by the Seller; and
(x) The Tank Removal Documentation in accordance with Section 16
below.
(d) At the Closing, Purchaser shall deliver to Seller the following documents
and tender the following performance:
(i) The Purchase Price, plus or minus prorations, together with such
additional funds as may be required to pay the other costs and
expenses of Purchaser, shall be deposited by Purchaser into the
Closing Escrow (hereafter defined), by wire transfer, in currency of
the United States, plus or minus prorations;
(ii) An ALTA Statement in the form_customarily required by CTIQ
(iii) Such affidavits as are customarily required by the Title Insurer in
connection with issuance of the Owner's Title Policy;
.(iv) A "bring-down" certificate, executed by Purchaser or its agent,
stating that Purchaser's representations and warranties contained
herein are true and correct as of the Closing Date or, alternatively,
stating which of said representations and/or warranties are no longer
true and correct as of the Closing Date (along with a specific
explanation for such statement);
(v) Certified resolutions of the Purchaser's governing authority
authorizing the execution and performance of this Agreement by
Purchaser:
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(vi) All other documents, instruments or writings which may be
reasonably required of Purchaser to consummate the transactions
contemplated herein.
(e) At the Closing, Seller and Purchaser shall jointly execute and deliver to
each other:
(i) A closing statement in form acceptable to the Title Insurer; and
(ii) All transfer declarations required by law to be jointly executed by
the parties.
5. Possession. Seller shall deliver to the Purchaser possession of the Real Estate on the
day of Closing free and clear of all leases and tenancies.
6. Condition: Seller agrees to deliver the Real Estate in the same condition as it is at
the date of this Agreement, ordinary wear and tear excepted. Purchaser acknowledges that(i)prior
to Closing, Purchaser intends to inspect the Real Estate pursuant to the provisions of Paragraph 9
below; (ii) neither Seller nor any party acting on behalf of Seller has made any warranty or
representation concerning the physical or environmental condition of the Real Estate except as
.expressly set forth in this Agreement, and (iii) Purchaser is expressly agreeing to purchase the Real
Estate in its "as is" condition as further provided in Paragraph 32 below; subject to the Purchaser's
right to terminate this Agreement pursuant to Paragraph 9 below.
7. Evidence of Title: Survey.
(a) Seller shall deliver, or cause to be delivered, to Purchaser or Purchaser's nominee,
within fifteen (15) business days after the Acceptance Date a commitment (the
"Title Insurance Commitment") from the Title Insurer for an ALTA 2006 Form
B Owner's Title Insurance Policy in the amount of the Purchase Price. The Title
Insurance Commitment shall show title in the intended grantor subject only to (i)
the title exceptions set forth in Paragraph 2 hereof and=.(ii):.4itle exceptions
pertaining to liens or encumbrances of a definite or ascertainable amount which
may be removed by the payment of money at the Closing and which the Seller will
so remove at that time by using the funds to be paid to Seller hereunder (all of
which are herein referred to as the 'Permitted Exceptions'). Additionally, Seller
shall cause the Title Insurer to delivery to Purchaser copies of all documents of
record along with the said Title Insurance Commitment. At the Closing, the Seller
shall cause the Title Insurer to issue its 2006 ALTA Owners Title Policy subject
only to the Permitted Exceptions and with extended coverage over the general
exceptions to the Policy. The title policy issued shall be conclusive evidence of
good title as therein shown as, subject only to the exceptions therein stated.
(b) Prior to the Acceptance Date of this Agreement, Seller did provide to Purchaser a
copy of that certain ALTA survey of the Real Estate prepared by Gremely and
Biederman and dated December 16, 2011 (the "2011 Survey"). Seller has also
provided to Purchaser a,survey of the portion of the Real Estate to be retained by
Seller, said survey prepared by Alan J. Coulson, P.C., and dated March 25, 2013
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(the "2013 Survey"). Seller shall not be required to provide to Purchaser any other
survey other than the 2011 Survey and the 2013 Survey.
8. Correction of Defects: The Title Insurance Commitment and Survey are
collectively referred to as "Title Evidence." If the Title Evidence discloses any claims, liens,
exceptions; or conditions, other than the Permitted Exceptions, which are unacceptable to
Purchaser in its sole discretion (the "Defects"), then the following provisions shall apply:
(a) Liquidated Cure Items. Seller shall be obligated to use good faith in order
to pay-off or otherwise remove (or to cause the Title Insurer to insure
over by way of endorsement) all Defects relating to liens or encumbrances
of a definite or ascertainable amount(the "Liquidated Cure Items"),
whether described in the Title Insurance Commitment, or first arising or
first disclosed by the Title Insurer or otherwise to Seller and Purchaser
after the date of the Title Insurance Commitment and whether or not
raised in a Notice of Title Objection(defined below), including, without
limitation,the following: (1) liens securing a mortgage, deed of trust or
trust deed (2)judgment liens, tax liens or broker's liens against the Seller
or Seller's predecessors in title; and(3)any mechanics' liens that are
based upon a written agreement between either(x)the claimant (a
"Contract Claimant") and Seller, or(y)the Contract Claimant and any
other contractor, supplier or material man with which the Seller has a
written agreement. Such Liquidated Cure Items shall be cured or removed
(by endorsement or otherwise in form and substance reasonably
acceptable to Purchaser and its lender, if any) by Seller from the Title
Evidence prior to or at and through the Closing. Notwithstanding anything
to the contrary set forth herein, if, as of the Closing, Seller is unable to
remove all Liquidated Cure Items for an aggregate sum not to exceed
$100,000, then(i) Seller may decline to remove any of the Liquidated
Cure Items and (ii) Purchaser may, as its sole and exclusive remedy, treat
such declination as a Seller default and proceed as set forth in Section
22(b) below.
(b) Other Defects.
(i) On or before 5:00 p.m. (Chicago time)on the later to occur
of(i)the last day of the Inspection Period or(ii) the date
which is seven(7)business days after Purchaser's receipt of
the last to be received of the Title Insurance Commitment
and the Survey, Purchaser may give one or more notices
(each a "Notice of Title Objection") to Seller specifying
any lien, claim, encumbrance, restriction, covenant,
condition, matter or exception to title that is not a
previously enumerated Permitted Exception or a
Liquidated Cure Item (each a "Title Defect")that is
evidenced by the Title Evidence and that renders title
unacceptable to Purchaser. Any matter reflected on the
Title Evidence that is not raised by Purchaser as a Title
Defect in Purchaser's timely Notice of Title Objection,
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other than a Liquidated Cure Item, shall be deemed to be
and shall become an additional Permitted Exception.
(ii) Within ten (10)business days after the issuance of any
Notice of Title Objection, Seller shall be obligated to
advise Purchaser in writing("Seller's Cure Notice") as to
which, if any, of the Title Defects specified in any Notice
of Title Objection the Seller agrees(in Seller's sole
judgment and discretion) to cure (each being called a
"Seller's Cure Item"). If Seller fails to give a Seller's Cure
Notice within the required time specified herein, then Seller
shall be deemed to have agreed to cure all of the Title
Defects specified in Purchaser's Notice of Title Objection.
All such Seller's Cure Items shall be cured or removed (by
endorsement or otherwise in form and substance reasonably
acceptable to Purchaser) by Seller from the Title Evidence
as of the Closing.Notwithstanding anything to the contrary
set forth herein, if, as of the Closing, Seller fails to so cure
or remove all Seller's Cure Items, then such failure shall
constitute a Seller default and Purchaser shall have and be
limited to those rights and remedies available to it under
22(b) below.
(iii) In the event that Seller's Cure Items (as specified in Seller's
Cure Notice)do not include each and every Title Defect
specified in Purchaser's Notice of Title Objection, then,
within seven (7)business days after the later to occur of(x)
the end of the Inspection Period or(y) Seller's delivery of a
Seller's Cure Notice, Purchaser may, as its sole remedy,
elect by written notice to Seller(the "Purchaser's
Response Notice") to terminate this Agreement in its
entirety by written notice to Seller, in which event neither< :-.a.=.
party shall have any further liability to the other hereunder.
Purchaser's failure to terminate this Agreement by way of a
timely Purchaser's Response Notice pursuant to the
immediately preceding sentence shall be deemed to
constitute Purchaser's approval and acceptance of the Title
Defects which were specified in Purchaser's Notice of Title
Objection but not included amongst Seller's Cure Items.
For purposes hereof, all exceptions to title (other than Liquidated Cure Items)
that(i) are set forth on the Title Evidence but(ii) are not raised in a Notice of
Title Objection or(iii) are deemed to have been approved and accepted by
Purchaser pursuant to Section 8(b)(i) and/or to Section 8(b)(iii) above, shall be
deemed to constitute additional "Permitted Exceptions."
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9. Inspection Period.
(a) Seller has represented and warrants that it in connection with its purchase of
the Real Estate, Seller has undertaken the inspection and testing of the Real
Estate, said inspection and testing including but not limited to the
performance of a Phase I environmental review. Seller shall provide
Purchaser with the results of such inspections and testing of the Real Estate,
including but not limited to providing Purchaser with a copy of Seller's
Phase I report for the Real Estate, and copies of any reports or other
documents regarding the removal of underground storage tanks under
Section 16 of this Agreement (collectively the "Due Diligence
Documents"). Seller shall deliver all of the Due Diligence Documents to
the Purchaser on or before April 10, 2013. Notwithstanding anything in this
Agreement to the contrary, Purchaser shall have the right to terminate this
Agreement by written notice to Seller given on or before April 12, 2013„
(said period of time during which Purchaser may terminate this Agreement
being herein referred to as the "Inspection Period") if Purchaser is not, in
Purchaser's sole discretion, satisfied with all aspects of the Real Estate and
its suitability for acquisition by Purchaser. Purchaser's inspection and
testing performed under this paragraph 9 shall be at Purchaser's sole cost
and expense, provided however, that copies of Due Diligence Documents to
be provided to Purchaser from Seller under this Agreement shall be
provided by Seller at no cost to Purchaser. IF PURCHASER DOES NOT
GIVE WRITTEN NOTICE TO SELLER ON OR BEFORE THE END OF
SAID INSPECTION PERIOD OF PURCHASER'S ELECTION TO
TERMINATE THIS AGREEMENT, THEN PURCHASER'S RIGHT TO
TERMINATE UNDER THIS PARAGRAPH 9(A) SHALL LAPSE AND
EXPIRE.
(b) Seller shall afford to Purchaser and Purchaser's agents, representatives and
employees reasonable access to the entire Real Estate during normal
1 business hours upon reasonable advance notice to Seller, duri ng the
Inspection Period, for the purpose of making or conducting such soil,
environmental and engineering tests and other reasonable inspections of the
Real Estate as Purchaser may deem appropriate.
(c) In connection with any entry by Purchaser, or its agents, employees or
contractors onto the Real Estate to conduct any non-invasive investigations,
Purchaser shall give Seller reasonable advance notice of such entry (and in
the case of entry to a tenant space, not less than three (3) business day's
prior notice). Additionally, Purchaser shall conduct such entry and any
inspections in connection therewith in a manner reasonably acceptable to
Seller.
(d) Without limiting the generality of the foregoing, prior to any entry onto the
Real Estate by Purchaser or its agents or consultants to perform any
invasive on-site testing, Purchaser shall provide Seller with not less than 5
business days' prior notice together with the identity of the company or
persons who shall perform such testing and the proposed scope and
methodology of the testing, together with certificates of insurance from said
parties complying with the requirements of Paragraph 9(g) below. Any
such invasive testing shall be subject to Seller's approval as provided in
Paragraph 9(e)below.
(e) Seller shall approve or disapprove the scope and methodology of such
proposed invasive testing within three(3)business days after receipt of such
notice, such approval to be within the sole and unfettered discretion of
Seller. Seller's failure to notify Purchaser of its approval or disapproval
shall be deemed to be Seller's approval thereof.
(f) If Purchaser or its agents, employees or contractors take any sample from
the Real Estate in connection with any such approved testing then, upon
Seller's request, Purchaser shall provide to Seller a portion of such sample
being tested to allow Seller, if it so chooses, to perform its own testing.
Seller or its representative may be present to observe any testing or other
inspection performed on the Real Estate. Additionally, if(i)this Agreement
shall be terminated without a Closing having occurred, for whatever
reason), or (ii) Purchaser shall otherwise indicate that there is a problem
with the Physical Condition of the Real Estate, Purchaser shall promptly
deliver to Seller copies of any reports relating to any testing or other
inspection of the Real Estate related to its Physical Condition (as defined in
paragraph 32(e)below) performed by Purchaser or its agents, employees or
contractors; provided, however, that Purchaser shall not be required to
deliver to Seller any of Purchaser's intemally generated memoranda.
(g) Before conducting any invasive testing upon the Real Estate, Purchaser
shall procure and maintain, and shall assure that its contractors maintain, a
policy or policies of public liability and property damage insurance so as to
insure against claims arising out of bodily injury, death or property damage
based upon acts or omissions of Purchaser, its agents, employees or
contractors, in connection with any entry or inspections of the Real Estate
pursuant to the provisions hereof, with a combined single limit of not less
than $2,000,000.00 (the "Liability Insurance"). Said Liability Insurance
shall expressly name Seller as an additional insured, and Purchaser shall
provide Seller with evidence (in the form of a certificate) of such insurance
coverage upon request by Seller. Additionally, Purchaser shall at all times
indemnify, defend and hold Seller harmless from and against any costs,
damages, liabilities, losses, expenses, liens or claims (including, without
limitation, reasonable attorney's fees) arising out of or relating to any entry
on the Real Estate by Purchaser, its agents, employees or contractors in the
course of performing the inspections,testing or inquiries provided for in this
Agreement, including without limitation damage to the Real Estate or
release of hazardous substances or materials onto the Real Estate,
excluding, however, any costs incurred by Seller in supervising Purchaser's
testing. The foregoing indemnity shall survive(1)the Closing hereunder,
(2) if this Agreement is terminated without any Closing, the termination
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hereof, in each case without limitation.
10. Ownership Materials.
(a) On or before April 10, 2013, Seller shall cause to be delivered to Purchaser
complete copies of the following materials (collectively the "Ownership Materials"), if any,
received from its Seller and/or First American Bank)concerning the Real Estate:
(i) Any environmental reports and studies;
(ii) The 2011 Survey
(iii) The 2013 Survey; and
(iv) All engineering and geotechnical investigations and reports;
All of said Ownership Materials shall be returned to Seller in the event this Agreement is
terminated without a closing, and the return of such Ownership Materials shall be a condition
precedent to the refund of any Earnest Money to which Purchaser may otherwise be entitled upon
such termination. Notwithstanding the delivery to Purchaser of any such Ownership Materials,
Purchaser acknowledges and agrees that (i) Purchaser is relying solely upon the results of
Purchaser's own inspections and investigations of the Real Estate rather than on any information
that may have been provided by Seller to Purchaser as part of the Ownership Materials and (ii)
Seller does not represent or warrant that such Ownership Materials are accurate or complete, but
Seller does hereby represent that, to its knowledge, but without investigation, Seller has no reason
to believe any of such Ownership Materials are inaccurate or incomplete.
(b) With respect to the Ownership Materials,the following provisions shall apply and
remain in full force and effect during the term of this Agreement but prior to Closing, and after the
termination of this Agreement,without limitation, if no Closing occurs hereunder:
(i) Purchaser hereby agrees to the extent permitted by law that the Ownership Materials
will be kept confidential,will be disclosed by Purchaser only to its attorneys,
accountants, consultants, financial advisors and other representatives(collectively,
"Representatives") in which case Purchaser shall direct Representatives to keep
such information confidential,and will be used solely for the purpose of the
Purchaser evaluating during the Inspection Period(the "Evaluation")whether or not
to purchase the Real Estate .
(ii) Purchaser may also disclose the Ownership Materials to the Illinois Toll Highway
Authority and the Kane County Forest Preserve District, each of which is intended
to ultimately receive some interest in the Real Estate after the Closing through the
Intergovernmental Agreement with the Purchaser(with each of said three
governmental bodies being individually called a"Post-Closing Grantee"or
collectively called the"Post-Closing Grantees"),but only on the following terms
and conditions:
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A. Purchaser shall identify with a unique identification number and retain a
copy for its own records of any Ownership Materials delivered to any Post-
Closing Grantee;
B. Purchaser shall require each such Post-Closing Grantee to whom Purchaser
may deliver any Ownership Materials to acknowledge in writing that it will
hold such materials in confidence,not disclose same to others,return same to
Purchaser should this Agreement be terminated without a Closing,and use
same only for the purposes of Evaluation,all in accordance with the same
terms,provisions and restrictions that are applicable to Purchaser under this
Section 10.
The Representatives and the Post-Closing Grantees are hereinafter collectively
referred to as the"Specified Third Parties".
(iv) Additionally, neither Purchaser, Purchaser's Representatives nor any of the
Specified Third Parties(collectively the"Receiving Group")will (i)make use of
such Ownership Materials or(ii)disclose any of the Ownership Materials in any
manner whatsoever;provide d,however, that(A) a member of the Receiving Group
may make any disclosure of such information to which Seller gives its prior written
consent and(B)any of such information may be disclosed by a member of the
Receiving Group to its Representatives who need to know such information for the
sole purpose of the Evaluation. Each member of the Receiving Group shall direct its
Representatives to keep such information confidential. Each member of the
Receiving Group further agree to take such steps to protect and maintain the security
and confidentiality of the Ownership Materials as it would in the case of its own
confidential business information. Purchaser,together with any other member of the
Receiving Group which may breach the restrictions contained in this Section 10,
shall be responsible for the unauthorized release of any Ownership Materials
received by Purchaser and any copy of any such Ownership Materials.
(iii) If any member of the member of the Receiving Group or its Representatives is or
are requested or required(by oral questions, interrogatories,requests for information
or documents, subpoena,civil investigative demand or similar process)to disclose
any Ownership Materials, such member of the Receiving Group shall promptly
notify Seller of such request or requirement so that Seller may seek to avoid or
minimize the required disclosure and/or to obtain an appropriate protective order or
other appropriate relief to ensure that any information so disclosed is maintained in
confidence to the maximum extent possible by the agency or other person receiving
the disclosure,or, in the discretion of Seller,to waive compliance with the
provisions of this letter agreement. In any such case, such member of the Receiving
Group shall use its reasonable efforts in cooperation with Seller or otherwise, to
avoid or minimize the required disclosure and/or to obtain such protective order or
other relief. If in the absence of a protective order or the receipt of a waiver
hereunder, any member of the Receiving Group or its Representatives is/are
compelled to disclose the Ownership Materials or else stand liable for contempt or
suffer other censure or penalty, such member of the Receiving Group shall disclose
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only so much of the Ownership Materials to the party compelling disclosure as such
member of the Receiving Group believes in good faith on the basis of advice of
counsel is required by law. Each member of the Receiving Group shall give Seller
prior notice of the Ownership Materials that it believes it is required to disclose.
(iv) All documents and other materials in Purchaser's possession,or in the possession of
any other member of the Receiving Group,which embody any of the written
Ownership Materials will be returned to Seller immediately upon the request of
Seller,and no copies,extracts or other reproductions shall be retained by Purchaser
or any other member of the Receiving Group. All documents,memoranda,notes
and other writings whatsoever prepared by Purchaser or any other member of the
Receiving Group based on the Ownership Materials,and any and all copies thereof
in the possession of Purchaser or any other member of the Receiving Group shall be
returned to Seller.
11. Prorations and Closing Adjustments:
(a) Seller shall pay the amount of any stamp or transfer tax imposed by the
State of Illinois or by the County or municipality in which the Real Estate is
located, and shall furnish a completed Real Estate Transfer Declaration
signed by Seller or Seller's agent in the form required by the Real Estate
Transfer Tax Act of the State of Illinois. Purchaser shall pay any local
transfer tax that may be applicable to this transaction.
(b) General real estate taxes and assessments, if any, shall be adjusted ratably
(prorated) with respect to the Real Estate as of the day of the Closing using
for such purpose the last ascertainable taxes, if any, levied against the Real
Estate.
(c) Seller agrees to pay at the Closing (i) CTIC's charge for the required-
Owner's Title Policy (including the-.cost imposed by the Title Insurer for
issuing endorsements for extended coverage (ii) the Title Insurer's charges
to clear or insure over any Title Defects; (iii) the cost to procure a City of
Elgin transfer stamp; (iv) one-half of the escrow closing and New York
Style closing fees charged by CTIC; (v) any costs and expenses payable to
any qualified intermediary, trustee or any other third parties (excluding
Purchaser and its attorneys or advisors)related to the implementation of any
tax-deferred exchange procedure requested by Seller; the cost of the 2011
Survey; (vi) all State of Illinois and Kane County transfer taxes and (vii) all
recording fees with respect to clearing Seller's title.
(d) Purchaser agrees to pay (i) the Title Insurer's charge for any lender's loan
title policy; (ii) one-half of the escrow closing and New York Style closing
fees charged by CTIC; (iii) the cost of any title insurance endorsements
requested by Purchaser and not otherwise herein required to be provided by
Seller (it being expressly understood that the refusal of the Title Insurer to
issue same shall not be grounds for the Purchaser to terminate this
Agreement or otherwise avoid or delay its obligation to close hereunder);
(iv) all recording charges with respect to the Deed and any other documents
to be recorded at the request of Purchaser or its lender(s); and (v) all costs of
Purchaser's physical inspections of the Real Estate, including, without
limitation, all costs and expenses related to any environmental, engineering
and mechanical or structural investigations or studies undertaken at the
direction of Purchaser or its agents and of any other of Purchaser's "due
diligence" inspection activities).
12. Representations. Seller hereby warrants and represents to Purchaser (with such
representations and warranties to be re-made as of Closing)as follows:
(a) This Agreement has been,and all the documents to be delivered by Seller to
Purchaser at Closing are or shall be, duly authorized, executed, and
delivered by Seller, shall be sufficient to convey insurable title and are
legal, valid, and binding obligations of Seller, are enforceable in
accordance with their respective terms. Seller has the power and authority
to consummate the transactions contemplated by this Agreement.
(b) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of
the Internal Revenue Code of 1986, as amended, and Seller shall furnish to
Purchaser, prior to Closing, an affidavit in form satisfactory to Purchaser
confirming the same.
(c) The execution and delivery of this Agreement; and consummation of the
transaction described in this Agreement, does not and shall not constitute a
default under any contract, lease, or other agreement to which Seller is a
party or by which Seller is bound.
(d) Seller has not done anything to create a Recognized Environmental
Condition (as defined in Section 1.1.1 of the ASTM E1527 - 05 Standard
Practice for Environmental Site Assessments:,:Phase I Environmental Site
Assessment Process.
(e) The Real Estate is not currently, and at the Closing will not be subject to
any lease or tenancy, except as set out in paragraph 5 hereof.
(f) Between the Acceptance Date of this Agreement and the Closing, Seller
shall not suffer to be conducted on the Real Estate any activity other than
in connection with the Seller's maintenance and oversight of the Real
Estate.
13. Damage. The provisions of the Uniform Vendor and Purchaser Risk Act of the
State of Illinois shall be applicable to this Agreement.
14. Time: Time is of the essence of this Agreement.
12
15. Notice: All notices herein required shall be in writing and shall be served on the
parties at the following addresses:
If to Seller: Max McGraw Wildlife Foundation
c/o Charles S. Potter, President,
P.O. Box 9
Dundee, IL 60118
Fax: (847) 741-8157
With copy to: Leo M. Flanagan,Jr., Esq.
85 Market Street
Elgin, IL 60123
Fax: (847) 742-6152
If to Purchaser: City of Elgin
Attn: City Manager
150 Dexter Ct
Elgin; IL 60120
with a copy to: William Cogley, Esq.
City of Elgin
150 Dexter Ct
Elgin, Illinois 60120
Fax 847-931-5665
Any such notices may be sent by (a) certified mail, return receipt requested, in which case notice
shall be deemed delivered on the date of deposit, postage prepaid in the U.S. mail or (b) a
nationally recognized overnight courier, in which case notice shall be deemed delivered on the date
of deposit with such courier or(c)by facsimile transmission to the parties at the facsimile numbers
set forth above followed the same day with the mailing of a copy of such notice, by regular mail, to
the parties at the foregoing addresses, in which case notice shall be-.deemed delivered upon
electronic verification that transmission to the recipient was completed or (d) by personal delivery.
The above addresses and facsimile numbers may be changed by notice to the other party; provided
that no notice of a change of address or facsimile number shall be effective until actual receipt of
such notice. Notice on behalf of any party may be given by such party or its counsel to the other
party and/or its counsel.
16. Underground Storage Tanks: Removal.
Seller hereunder has received the following representations from American Real
Estate Investments NO. 7, LLC, an Illinois limited liability company, its
Seller pursuant to the March 14, 2013 contract between Seller and
American Real Estate Investments NO. 7, LLC, an Illinois limited liability
company and makes no representations of its own.
(a) Seller has advised Purchaser that, to Seller's knowledge, and based entirely
on a report by Pioneer Environmental Services, LLC entitled "Soil Testing
13
Report" dated December 18, 2012 (the "Pioneer Report"), there exists on
the Real Estate six (6) underground heating oil storage tanks (the "Specific
USTs")as more particularly described in the Pioneer Report.
(b) Pursuant to its contract with American Real Estate Investments NO. 7, LLC,
an Illinois limited liability company, American Real Estate Investments
NO. 7, LLC, an Illinois limited liability company, at its expense, shall use
commercially reasonable efforts to cause the Specific USTs to be removed
under the supervision of the Illinois State Fire Marshall (the "Tank
Removal") prior to the date prescribed for the Closing in Section 4 above.
If the Tank Removal is not able to be completed before the closing date
prescribed in Section 4, then the Closing shall be reasonably postponed to
allow additional time for the Seller to complete the Tank Removal.
(c) Seller has further advised that the USTs have been removed by American
Real Estate Investments NO. 7, LLC, pursuant to Seller's contract set forth
in Exhibit D. Seller shall obtain and provide to the Purchaser
documentation of the Tank Removal, including but not limited to copies of
the Site Assessment Report Form and supporting laboratory data to
document the results of soil samples collected at the time of Tank Removal.
Such documents shall be provided to Purchaser as part of the inspection
prior to the commencement of Purchaser's Inspection Period, as provided in
Section 9(a).
(d) If, during the process of Tank Removal, it is determined by the State Fire
Marshall that a release from any of USTs may have occurred and a so-
called "incident number" is assigned by the Illinois Environmental
Protection Agency (the "IEPA") requiring remediation and closure under
the Leaking Underground Storage Tank ("LUST") regulations of the IEPA
(with such remediation and closure being hereafter called the "LUST
Closure"),then:
(i) Seller shall cause American Real Estate Investments NO. 7, LLC, an
Illinois limited liability company to present to Seller and Purchaser
the estimate (the "Closure Estimate") of a reputable remediation
company for the performance of the required LUST Closure; and
(ii) Closing shall take place within seven (7)days following the delivery
to Purchaser of the Closure Estimate; and
(iii) At Closing, Seller shall cause American Real Estate Investments
NO. 7, LLC; an Illinois limited liability company to deposit into a
strict joint order escrow between Seller and Purchaser, with CTIC as
the escrow trustee, a sum equal to 115% of the Closure Estimate to
assure that the Seller causes the completion of the LUST Closure
within a commercially reasonable time following the Closing. In
connection with the post-Closing work associated with any LUST
Closure, the Purchaser shall be obligated to provide to Seller and its
14
contractors such access to the Real Estate as may be reasonably
required to accomplish the LUST Closure, without additional fee or
charge from the Purchaser.
17. Choice of Law: This Agreement shall be governed by the laws of the State of
Illinois.
18. Miscellaneous: If the date for Closing or performance of an obligation falls
on a Saturday, Sunday or holiday, the date shall be deferred until the first business day following.
No amendments, modifications or changes shall be binding upon a party unless set forth in a duly
executed document.
19. Non-Foreign Affidavit: Seller shall provide Purchaser, on or before the Closing
Date, with a non-foreign affidavit sufficient in form and substance to relieve Purchaser of any and
all withholding obligations under federal law, which affidavit shall be substantially in a form
reasonably acceptable to Purchaser.
20. Omitted.
21. Broker: Purchaser and Seller hereby represent to each other that neither of them
has had any dealings with respect to the Real Estate with any broker or real estate dealer. Seller
and Purchaser agree to indemnify and hold each other harmless against any other brokerage claim
asserted contrary to the foregoing representation with respect to the subject transaction.
22. Breach: Remedies: Termination:
(a) If this Agreement is breached by the Purchaser, then Seller shall have the
right, at its election, and as its sole remedy, to either (i) seek specific
enforcement of this Agreement as against the Purchaser or (ii) declare this
Agreement null and void.
(b) Subject to the provisions and limitations of Paragraph 22(d), if this
Agreement is breached by Seller, then Purchaser shall have the right, at its
election, and as its sole remedy, to either(i) declare this Agreement null and
void, whereupon Purchaser may recover as liquidated damages a sum equal
to Three Thousand Dollars ($3,000) or (ii) seek specific enforcement of this
Agreement as against the Seller.
(c) If Purchaser closes with respect to the Real Estate after being notified or
otherwise having actual knowledge of the breach or inaccuracy of any
representation or warranty of the Seller made hereunder with respect to the
Real Estate, whether or not knowing and intentional and whether or not
occurring by reason of Seller's default, then unless the parties shall have
thereafter entered into a written agreement otherwise dealing with such
breach or default, Purchaser shall be conclusively deemed to have waived
such matter and shall be barred from asserting any claim for damages or
other legal or equitable relief with respect thereto.
15
23. Legal Fees: In any action or proceeding between the parties arising out of or in
connection with this agreement or the breach or enforcement hereof, the party prevailing in such
proceeding shall be entitled to recover his costs and expenses from the non-prevailing party. In
any such action, venue shall properly(although not exclusively) lie in the Sixteenth Judicial Circuit
Court of Kane County, Illinois.
24. Authority to Execute: If Purchaser or Seller is other than a natural person (i.e., is
an entityE) then such party hereby covenants that the execution of this Agreement and the
performance of the transaction herein contemplated have been duly approved by all necessary
action of the governing authority of the entity and that the party executing this Agreement on
behalf of such entity is authorized to do so.
25. Entire Agreement. This Agreement contains the entire agreement of the parties
with respect to the sale and purchase of the Real Estate. All previous and contemporaneous
negotiations, understandings and agreements between the parties hereto, with respect to the
transaction set forth herein, are merged in this instrument, which along fully and completely
expresses the parties' rights and obligations. The preparation of this Agreement has been a joint
effort of the parties hereto and the resulting documents shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the other.
26. Terms: As used herein, the terms (a) "person" shall mean an individual, a
corporation, a partnership, a trust, an unincorporated organization or any agency or political
subdivision thereof, (b) "including" shall mean including, without limiting the generality of the
foregoing, and(c)the masculine shall include the feminine and the neuter.
27. Binding Effect and Survival: This Agreement shall be binding upon and shall
insure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and assigns. No assignment of this Agreement shall relieve the
assigning party of his/its/their obligations hereunder.
28.:.,. Captions: The captions of this Agreement are inserted for convenience of
reference only and in no way define,described or limit the scope of intent of this Agreement or any
of the provisions hereof.
29. Tag Free Exchange: Each party agrees that if directed to do so by the other, they
will reasonably cooperate in accomplishing the Closing hereunder in a manner which will afford
the requesting party tax-deferred, like-kind exchange treatment under Section 1031 of the Internal
Revenue Code; provided that any and all costs associated therewith (over and above the normal
costs of Purchaser hereunder) shall be paid by the requesting party.
30. Personal Property. At Closing, Seller shall assign and transfer to Purchaser, and
Purchaser shall accept, Seller's interest, if any, in any and all personal property currently situated
on the Real Estate,all without any warranty of title from Seller.
31. Intentionally omitted.
16
32. As is. It is hereby agreed that (i) Seller has made no representations or warranties
concerning the Physical Condition (as hereafter defined) of the Real Estate except as may be
expressly contained in this Agreement and (ii) Purchaser has agreed to purchase the Real Estate in
its "as is/ where is" condition. Accordingly, the parties do further agree that, from and after the
Closing hereunder:
(a) The Seller shall have no responsibility for the repair, replacement or
correction of or for any response or corrective actions or remediation of any
Physical Condition(as hereafter defined) at, on, under or about the Premises
(as hereafter defined);and
(b) The Purchaser hereby waives and releases any claim for contribution
against, and covenants not to sue the Seller, whether asserted directly or
indirectly, and whether in the nature of an action for contribution, third
party proceeding or any 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 costs, investigation expenses, consultant fees, attorneys' and
paralegals' fees and litigation expenses(collectively "Claims") arising out of
or in connection with any Physical Condition (as defined in paragraph 32(0
below) or environmental law or with the migration of any such Physical
Condition to any other site or location; and
(c) The grant to the Purchaser of the right to conduct inspections and
investigations of the Property as provided in paragraph 9 of this Agreement
is (i) in lieu of all representations or warranties concerning the
environmental condition of the Premises other than those as set forth herein:
and (ii)with the understanding and agreement of the Purchaser that if
Purchaser proceeds to acquire the Premises pursuant to the terms hereof
then, as of the closing, Purchaser will purchase the Premises in its "as is"
condition with no direct recourse or direct rights of action against Seller.
(d) The Purchaser, for itself and its successors, assigns and grantees, hereby
covenants and agrees that in consideration of this Agreement neither the
Purchaser nor its successors or assigns shall directly or indirectly sue Seller
for any Claims with respect to, or arising out of any Physical Condition (as
hereafter defined) or other condition of, or situation existing with respect to
the Premises or any Environmental Law (as hereafter defined). (The
covenant and agreement of the Purchaser as set forth in the preceding
sentence shall hereinafter be called the "Covenant Not To Sue'). The
parties hereto understand and agree that the Purchaser's Covenant Not To
Sue as stated herein does not (i) apply to any breach by Seller of any of the
Seller's representations as are set forth in this Agreement or to any action
taken by the Purchaser to enforce any contractual obligations of the Seller
as may be specifically set forth in this Agreement, and (ii) constitute an
agreement or undertaking by Purchaser to indemnify Seller from third-party
claims ; provided, however, that the Purchaser agrees not to assign any
17
claims against Seller to any third parties.
(e) For Purposes of this paragraph 32:
(i) 'Physical Condition" shall mean any condition or situations
existing on, under, at or about the Premises, the groundwater, sub-
surface water, and / or the underground soil and geologic condition
thereunder, as of the date of the execution of this Agreement which
(i) constitutes any structural or mechanical defect in or violation of
any code, law, ordinance or regulation with respect to the building,
mechanical systems, site improvements or other improvements on
the Real Estate or (ii) constitutes a violation of any State of Illinois
or federal Environmental Law, regulation or ordinance and/or and
which does or reasonably might form the basis of any public or
private claim or cause of action for the clean-up or remediation as a
result of the release,threatened release,migration or the existence of
any contaminants, pollutants, toxic or hazardous substances or
wastes, petroleum and petroleum by-products, crude oil or any
fraction thereof, chemicals, wastes or substance (including, without
limitation, regulated substances and hazardous waste and hazardous
substances as such terms as commonly used and understood within
the framework of existing federal and Illinois Environmental Laws
and regulations).
(ii) "Premises" shall mean the Real Estate described in this Agreement
together with the subsoils, geologic forrr►ations and groundwater
thereunder.
(iii) "Environmental Law" shall mean any federal or State of Illinois
law, statute, regulation, rule, order, decree, judgment or direction
concerning environmental protection or health and safety, including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act, as amended, the Toxic Substances
Control Act, as amended, and the Illinois Environmental Protection
Act, as amended.
(iv) "Seller" shall mean the party designated herein and such party's
heirs, personal representatives, successors, assigns, and grantees,
and if such party is an entity, then additionally such party's officers,
employees, agents,partners, shareholders,directors,members and or
managers.
The covenants and waivers set forth in this paragraph 32 shall be incorporated into the
Deed to be delivered by Seller to Purchaser at the Closing and Purchaser shall execute said Deed
acknowledging that said covenants and waivers shall be binding upon Purchaser and Purchaser's
successors, assigns and grantees.
18
33. Closing Conditions.
(a) Purchaser's obligation to proceed to Closing hereunder is expressly subject
to the fulfillment, as of the Closing of the following conditions precedent,
any one or more of which Purchaser may, in its sole discretion, elect in
writing to waive. If any one or more of the conditions enumerated in this
Section 33(a) is not fulfilled or waived as of the Closing then, except to the
extent same arises out of a default on the part of Seller (in which case the
provisions of Section 22(b) hereof shall enumerate Purchaser's sole
remedies), the Purchaser shall have the right, as its sole remedy, to declare
this Agreement terminated,null and void.
(i) Title Policy. The Title Insurer shall be prepared to issue to
Purchaser the required Owner's Title Insurance Policy.
(ii) Accuracy of Seller Representations. As of the Closing, the
Seller's representations and warranties contained herein shall be
materially true and correct, excluding, however, any Known
Inaccuracy which has been waived by Purchaser as provided in
Paragraph 12(c) above.
(iii) Seller Deliveries. Seller shall have delivered all of the documents
and other items required pursuant to Paragraph 4(c) and shall have
performed all other covenants, undertakings and obligations
required by this Agreement to be performed or complied with by
Seller at or prior to Closing.
(iv) No Eminent Domain Proceeding. No eminent domain
proceedings not otherwise disclosed to Purchaser during the
Inspection Period shall be pending with respect to any portion of the
Real Estate as of the Closing.
(v) No Prior Termination. Purchaser shall not have properly exercised
any other right to terminate this Agreement as expressly provided
herein.
(b) Seller's obligation to proceed to Closing hereunder is expressly subject to
the fulfillment, as of the Closing of the following conditions precedent, any
one or more of which Seller may, in its sole discretion, elect in writing to
waive. If any one or more of the conditions enumerated in this Section
33(b) is not fulfilled or waived as of the Closing then, except to the extent
same arises out of a default on the part of Purchaser (in which case the
provisions of Section 22(a) hereof shall enumerate Seller's sole remedies),
the Seller shall have the right, as its sole remedy, to declare this Agreement
terminated, null and void.
(1) Accuracy of Purchaser Representations. As of the Closing the
Purchaser's representations and warranties contained herein shall be
19
materially true and correct, excluding, however, any Known
Inaccuracy which has been waived by Purchaser as provided in
Paragraph 12(c)above.
(ii) Purchaser Deliveries. Purchaser shall have delivered all of the
documents and other items required pursuant to Paragraph 4(d) and
shall have performed all other covenants, undertakings and
obligations required by this Agreement to be performed or complied
with by Purchaser at or prior to Closing.
(iii) Seller's Simultaneous Closing. Seller shall close simultaneously
with this transaction its acquisition of the property described in
Exhibit A, which closing contemplates the completion of this
transaction and the payment of the 2.6 million dollar purchase price
hereunder.
34. Joint Preparation. This Agreement is and shall be deemed and construed to be the
joint and collective work product of Purchaser and Seller 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 inconsistency, ambiguity, vagueness or conflict in
terms or provisions,if any, contained herein.
35. Acceptance: Acceptance Date.
(a) Until this Agreement has been executed by both of the Parties hereto and a fully
executed counterpart has been delivered to both such Parties, this document shall be
an offer by the first Party executing same. Any such offer may be revoked by the
offeror at any time prior to its acceptance.
(b) The date on which this offer is accepted in the manner described in paragraph 35(a)
above shall be the "Acceptance Date"-of-this Agreement.
36. Counterparts. This Agreement may be executed in multiple counterparts, all of
which,together, shall constitute one and the same agreement. Further, photocopies, facsimile
transmissions and other reproductions of this Agreement and/or the signatures hereon shall be
the equivalent of originals.
[signature page follows]
20
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Sale
Agreement as of the day first above Nwitten.
Purchaser: City of Elgin Seller: Max McGraw Wildlife Foundation
By by
Mayor Title
Attest'.
City Clerk
21
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Sale
Agreement as of the day first above written.
Purchaser: City of Igin Seller: Max McGraw Wildlife Foundation
By by
May Title
Attest:
S&�L
City Clerk
FALegal Dept\Real Estate\RE Contract-McGraw to City-clean-4-10-13 w revised leeal.docx
21
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BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTHWEST 1/4 OF SAID SECTION 36,
THENCE EAST ALONG THE SOUTH LINE OF SAID SOUTHWEST li4 914.10 FEET; THENCE
NORTHERLY ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 28 MINUTES TO THE LEFT WITH
THE PROLONGATION OF THE LAST DESCRIBED COURSE 639.56 FEET; THENCE NORTHWESTERLY
ALONG A LINE FORMING AN ANGLE OF 82 DEGREES 26 MINUTES TO THE LEFT WITH THE
PROLONGATION OF THE LAST DESCRIBED COURSE 1894.23 FEET TO THE CENTER LINE OF
STATE ROUTE NUMBER 25; THENCE SOUTHWESTERLY ALONG SAID CENTERLINE TO THE SOUTH
LINE OF THE SOUTHEAST 1/4 OF SAID SECTION 35; THENCE EAST ALONG SAID SOUTH LINE
TO THE POINT OF BEGINNING),N KANE COUNTY,ILLINOIS.
AND ALSO EXCEPTING THAT PART DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST
CORNER OF SAID SOUTHEAST 1/4; THENCE NORTH 88 DEGREES 26 MINUTES 07 SECONDS EAST
ALONG THE SOUTH LINE OF SAID SOUTHEAST 1/4, 1120.13 FEET TO THE NORTHWESTERLY
RIGHT OF WAY LINE OF STATE ROUTE 25 (SAID RIGHT OF WAY LINE BEING 50.0 FEET
NORTHWESTERLY OF THE CENTER LINE OF SAID ROUTE 25 (AS MEASURED NORMALLY DISTANT
THERETO); THENCE NORTH 30 DEGREES 36 MINUTES 24 SECONDS EAST ALONG SAID RIGHT OF
WAY LINE, 86.49 FEET TO A POINT OF CURVE; THENCE NORTHEASTERLY ALONG SAID RIGHT
OF WAY LINE; BEING ON A CURVE TO THE LEFT, HAVING A RADIUS OF 17,138.76 FEET AN
ARC DISTANCE OF 623.18 FEET TO A POINT OF COMPOUND CURVE; (THE CHORD OF THE LAST
DESCRIBED CURVE BEARING NORTH 29 DEGREES 33 MINUTES 54 SECONDS EAST. 623.15
FEET); THENCE NORTHEASTERLY ALONG SAID RIGHT OF WAY LINE BEING ON A CURVE 'TO THE
LEFT HAVING A RADIUS OF 3,353.83 FEET, AN ARC DISTANCE OF 67.50 FEET FOR THE
POINT OF BEGINNING (THE CHORD OF THE LAST DESCRIBED CURVE BEARING NORTH 27
DEGREES 56 MINUTES 49 SECONDS EAST, 67.50 FEET); THENCE NORTH 78 DEGREES 34
MINUTES 04 SECONDS WEST 326.01 FEET; THENCE SOUTH 44 DEGREES 30 MINUTES 53
SECONDS EAST 542.30 FEET; FOR THE POINT OF BEGINNING: THENCE NORTH 44 DEGREES 36
MINUTES 27 SECONDS WEST 15.19 FEET; THENCE NORTH 44 DEGREES 25 MINUTES 37 SECONDS
WEST 72.90 FEET; THENCE 48 DEGREES 51 MINUTES 23 SECONDS WEST 82.96 FEET; THENCE
NORTH 63 DEGREES 04 MINUTES 16 SECONDS WEST 63.23 FEET; THENCE NORTH 78 DEGREES
11 MINUTES 24 SECONDS WEST 221.12 FEET: THENCE NORTH 67 DEGREES 22 MINUTES 44
SECONDS WEST 92.23 FEET: THENCE NORTH 55 DEGREES 55 MINUTES 01 SECONDS WEST 2125
FEET; THENCE NORTH 54 DEGREES 23 MINUTES 12 SECONDS WEST 80.33 FEET: THENCE NORTH
88 DEGREES 27 MINUTES 03 SECONDS EAST 33.43 FEET; THENCE SOUTH 60 DEGREES 56
MINUTES 55 SECONDS EAST 138.49 FEET: THENCE SOUTH 76 DEGREES 50 MINUTES 53
SECONDS EAST 288.42 FEET; THENCE SOUTH 44 DEGREES 30 MINUTES 53 SECONDS EAST
184.99 FEET TO THE POINT OF BEGINNING),IN KANE COUNTY,ILLINOIS.
Pin #03-35-300-016; 03-35-300-017; 03-35-400-001; 03-35-400-008
Commonly known as 1600 Dundee Ave. Elgin, IL 60120
23
EXHIBIT B
Property to be retained by McGraw as set out in Paragraph B
OF PROPERTY DESCRIBED AS FOLLOWS:
That part of the South Half of Section35,Township 42 North, Range 8 East
of the Third Principal Meridian, described as follows: commencing at the
intersection of the South line of the Southwest Quarter of said Section 35
with the East line of Duncan Avenue,(per dedication by Document No.
804859, recorded June 1, 1944);thence Northerly and Northwesterly along
said Easterly right of way, being on a curve to the left, having a radius of
3581.20 feet, an arc distance of 839.08 feet to a point of tangency,(the
chord of the last described curve bearing North 06 degrees 49 minutes 19
seconds West, 837.16 feet),thence North 13 degrees 32 minutes 03
seconds West along said Easterly right of way line,67.88 feet to the Point
of Beginning;thence continuing North 13 degrees 32 minutes 03 seconds
West along said Easterly right of way line, 509.32 feet; thence North 88
degrees 36 minutes 57 seconds East,684.91-feet to the North and South
centerline of said Section 35;thence North 88 degrees 27 minutes 03
seconds East, 268.82 feet;thence South 54 degrees 23 minutes 12
seconds East,80.33 feet;thence South 55 degrees 55 minutes 01 seconds
East, 21.25 feet;thence South 67 degrees 22 minutes 44 seconds East,
92.23 feet;thence South 78 degrees 11 minutes 24 seconds East,221.12
feet; thence South 18 degrees 12 minutes 47 seconds West, 50.24 feet;
thence North 84 degrees 41 minutes 21 seconds West, 81.73 feet;thence
North 74 degrees 23 minutes 22 seconds West,234.22 feet;thence South
62 degrees 21 minutes 11 seconds West, 130.23 feet;thence North 66
degrees 20 minutes 52 seconds West, 131.64 feet;thence South 54
degrees 49 minutes 17 seconds West,76.54 feet thence South 88
degrees 20 minutes 11 seconds West,61.62 feet thence South 48
degrees 22 minutes 34 seconds West, 343.23 feet;thence South 52
degrees 03 minutes 20 seconds West, 176.22 feet;thence South 84
degrees 52 minutes 29 seconds West, 140.97 feet to the Point of
Beginning containing 6.8812 acres, in Kane County, Illinois.
to ew cwmm
weds fora boundwy sorvOY.
L LAND SURVEYORS
West Dundee,11- 60M
24
EXHIBIT C
Additional Permitted Title Exceptions
1. General Real Estate Taxes, if any,not yet due and payable
2. Exceptions D, E, G, H, I, J, K, L, N, O, O, 1 , S, T, W, X, Y, Z and AA from Schedule B
of Chicago Title Insurance Company policy number 1410-008834823 KA;
25
EXHIBIT D
Contract dated March 14th, 2013 between the City of Elgin, an Illinois municipal corporation
(hereinafter referred to as "Purchaser") and Max McGraw Wildlife Foundation. an Illinois not-
for-profit corporation (hereinafter referred to as "Seller").
CLOSING DATE: Per paragraph 4 of above agreement.
Definition of closing date between McGraw Wildlife Foundation and American Real Estate
Investments NO. 7, LLC, an Illinois limited liability company
CLOSING DATE.
The consummation of the transaction herein described (hereinafter referred to as the "Closing")
shall be on the ninth (9`h) day following the expiration of the Inspection
Period (or on the first business day thereafter if said 9`h day is not, itself, a
business day), or on the date to which such time is extended by reason of
Paragraph 8, unless subsequently mutually agreed otherwise, at the office of
the Title Insurer in Elgin, Illinois or at such other location as is acceptable to
Purchaser and Seller. At the Closing, the parties shall deliver all documents
required by this Agreement.
26