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G53-16 Ordinance No. G53-16 AN ORDINANCE AUTHORIZING EXECUTION OF A CONTRACT FOR PURCHASE AND SALE WITH ST. JOSEPH CHURCH FOR THE SALE OF 115-121 CENTER STREET BE IT ORDAINED 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 Contract for Purchase and Sale on behalf of the City of Elgin with St. Joseph Church regarding the City's sale and conveyance of the property commonly known as 115-121 Center Street for$95,000, a copy of which is attached hereto and made a .art hereof by reference. I/ ( / ./ . David J. K tain,if ayor Presented: December 21, 2016 Passed December 21, 2016 Vote: Yeas: 7 Nays: 1 Abstain: 1 Recorded: December 21, 2016 0 ELC1 ,4 Published: December 21, 2016 .. calMA. Mt!, ' tt st «,1 •Z/r/i/l/t .4�oex ,; r w Kimberly Dewi Clerk ,TWO '' Ordinance No. G53-16 AN ORDINANCE AUTHORIZING EXECUTION OF A CONTRACT FOR PURCHASE AND SALE WITH ST. JOSEPH CHURCH FOR THE SALE OF 115-121 CENTER STREET BE IT ORDAINED 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 Contract for Purchase and Sale on behalf of the City of Elgin with St. Joseph Church regarding the City's sale and conveyance of the property commonly known as 115-121 Center Street for$95,000, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: December 21, 2016 Passed December 21, 2016 Vote: Yeas: 7 Nays: 1 Abstain: 1 Recorded: December 21, 2016 Published: December 21, 2016 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CONTRACT FOR PURCHASE AND SALE BUYER'S ATTORNEY: SELLER'S ATTORNEY: Sherry L. Harlan William A. Cogley Hinshaw& Culbertson LLP Corporation Counsel 100 Park Avenue City of Elgin Rockford, IL 61101 150 Dexter Court Phone: 815-490-4934 Elgin, IL 60120 Email: sharlan(21hinshawlaw.com Phone: 847-931-5655 Email: cogley wcityofelgin.org 1. Seller("Seller"). City of Elgin c/o William A. Cogley Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120 2. Buyer ("Buyer"). St. Joseph Church, an Illinois Religious corporation 272 Division Street Elgin, IL 60120 847-931-2800 Attn: Reverend Jesus Dominguez 3. Premises. Buyer offers to purchase the following described real estate ("Premises") situated in Elgin, Illinois, commonly known as: 115-121 Center Street, Elgin, IL 60120 (consisting of approximately 17,424 sq. ft), Tax ID 06-13-155-011, as legally described on Exhibit A. 4. Purchase Price. Buyer offers to pay Seller NINETY FIVE THOUSAND DOLLARS ($95,000.00) ("Purchase Price") with FIVE THOUSAND DOLLARS ($5,000.00) as earnest money ("Earnest Money") to be tendered by Buyer no later than two business days following the Effective Date. The Effective Date shall be the last date below the signature lines on this Contract ("Effective Date"). 5. Contingencies. Buyer's obligations pursuant to this Contract are expressly contingent upon satisfaction of each of the following conditions precedent to Closing to the satisfaction of Buyer: A. Survey. Buyer securing an ALTA survey of the Premises, at Seller's expense not to exceed the sum of$3,000, by surveyors licensed in Illinois, which survey shall confirm the acreage of the Premises as well as identify and locate all title exceptions, the location of which shall not interfere with Buyer's development plans, in Buyer's sole discretion and which survey is otherwise satisfactory to Buyer, in Buyer's sole discretion. Said survey may also be a part of the survey for the Adjoining Lots. Seller shall be obligated to pay for the survey only if Buyer proceeds to Closing. B. Zoning. Buyer obtaining the required zoning from the City of Elgin to construct a new church ("Project") on the Premises and adjoining tax code parcels 06-13- 155-013, 06-13-155-012 and 06-13-155-014 ("Adjoining Lots") which required zoning may consist of a planned development in a CF or CC2 Zoning District for the Premises and Adjoining Lots, and which includes that the Buyer has until December of 2019 to commence construction of the Project to allow the Buyer to complete its fundraising for the Project. Buyer shall submit a complete zoning application including all required documents associated with such application by April 1, 2017. C. Utilities. Buyer confirming, to Buyer's sole satisfaction, that the Premises are fully improved with all municipal utilities adjacent to the property line of Premises and with capacity to serve Buyer's intended use, including water, sewer, and electrical service, at Buyer's sole expense sufficient for Buyer's development plans. D. Environmental Assessment. Buyer, at its election, obtaining a written Phase I environmental site assessment report conducted pursuant to current U.S. EPA, Illinois EPA and ASTM 1528-13 standards, at Buyer's expense, which show no Recognized Environmental Conditions affecting the Premises and which will permit Buyer's planned development in Buyer's sole discretion. E. Soil Borings. Buyer performing standard soil borings by a qualified soil engineering or environmental firm of Buyer's choice, at Buyer's expense, the results of which show the development suitable for Buyer's planned development. Buyer shall supply one copy of the report to Seller within five days of its receipt. F. Certificate of Appropriateness. Buyer obtaining a Certificate of Appropriateness ("COA") from the City of Elgin for the Project pursuant to Title 20 of the Elgin Municipal Code, 1976, as amended, entitled "Historic Preservation". Buyer shall submit an application for a Certificate of Appropriateness including required documents in connection with same prior to or in conjunction with the zoning application for the Project. Notwithstanding any term, condition or provision hereof to the contrary, in the event Buyer has not satisfied any contingency set forth in this Paragraph 5 by July 30, 2017 ("Due Diligence Period"), then Buyer may, by giving written notice to Seller prior to the end of the Due Diligence Period, extend the period of time for satisfying such contingencies for an additional 60 days ("Extended Due Diligence Period") and the period for satisfying the same shall be correspondingly extended and Buyer shall deposit an additional $2,000.00 of earnest money (the "Additional Earnest Money") applicable to the Purchase Price at Closing. At the end of the Due Diligence Period if Buyer does not 2 exercise the Extended Due Diligence Period and has terminated the Contract by written notice to Seller or at the end of the Extended Due Diligence Period, if Buyer has terminated the Contract by written notice to Seller, all of the Earnest Money including the Additional Earnest Money shall be refundable to Buyer, and this Agreement shall be deemed canceled and null and void with no further liability of either party hereunder. If Buyer provides notice to Seller on or before termination of the Due Diligence Period or Extended Due Diligence Period that it is satisfying or waiving the respective Due Diligence Period, the parties shall proceed to Closing and all Earnest Money shall be applied to the Purchase Price. In addition to the foregoing conditions, it shall be a condition precedent to the Closing that no material change take place in the condition of the Premises, title to the Premises, the zoning or subdivision of the Premises other than has been requested by Buyer between the Effective Date and the Closing Date. The foregoing conditions to Closing are for the sole benefit of Buyer and may be waived by Buyer, at Buyer's sole option, by giving written notice to Seller at any time prior to the Closing Date. 6. Closing. Closing shall occur on the next business day, fourteen days after the expiration of the later of the Due Diligence Period or Extended Due Diligence Period (the "Closing"). 7. Prorations and Credits. The Premises are exempt from real property taxes. Seller shall pay all installments due thru closing of any special assessments, special service area taxes, or fees or other similar items charged against the Premises approved, enacted or confirmed prior to date of closing. 8. Earnest Money. The Earnest Money and any Additional Earnest Money shall be held by Chicago Title and Trust Company, 1795 West State Street, Geneva, IL ("Title Company"), also referred as "Escrowee," for the mutual benefit of the parties in a non- interest bearing account. If an earnest money dispute arises, Escrowee shall be authorized to release the Earnest Money and any Additional Earnest Money ONLY upon written direction executed by all parties or order of Court. 9. Seller Warranties. Seller warrants as of the Effective Date and as of Closing that: A. Condition of the Premises. Seller agrees to deliver possession of the Premises in the same condition as it is at the Effective Date of this Contract, ordinary wear and tear excepted, provided, however, Seller shall by Closing (1) remove all debris stored or located on the Premises and (2) have the electrical service shut off for the light poles on the Premises. B. Flood Plain. The Premises are not in a flood plain; C. Litigation. There is no threatened or pending litigation affecting the Premises nor any condemnation proceeding threatened or pending affecting the Premises; and 3 • • D. Hazardous Substances. Seller warrants that (1) Seller, to the best of its knowledge, has not conducted, authorized or permitted the generation, transportation, storage, treatment or disposal at or from the premises of any hazardous substance as defined by the Federal Emergency Planning and Community Right to Know Act of 1986, and to the best of its knowledge during the period it has owned the Premises it has complied with all environmental laws regarding the Premises, (2) Seller, to the best of its knowledge, is not aware of and has not caused or allowed the release of any petroleum products on or from the premises prior to closing, (3) to the best of Seller's knowledge, the Premises have not been used for any dumping of trash, debris or other materials. 10. Title Insurance. Seller has furnished a current title insurance commitment No. 16021946GV from Chicago Title Insurance Agency and will issue a final policy thereafter in the full amount of the Purchase Price, at Seller's expense, from the Title Company, showing marketable title subject only to the following permitted exceptions: a) general real estate taxes not yet due and payable as of the closing; b) public utility easements; c) zoning laws, statutes and ordinances, including, but not limited to, matters relating to the Tax Increment Allocation Redevelopment Act and the Elgin Central Area Tax Increment Financing Redevelopment Act and Project, the City of Elgin Historic Preservation Ordinance and notice of ordinance designating the Premises within a historic district or landmark recorded as document 96K87424; d) building setbacks, use and occupancy restrictions, conditions and covenants of record which were approved by Buyer during the Due Diligence Period as a part of the zoning process; and (e) Seller's option to repurchase the Premises as provided in Paragraph 23 hereof (collectively the "Permitted Exceptions"). If Seller cannot deliver marketable title to Buyer at closing subject only to the Permitted Exceptions, this Contract shall be voidable at Buyer's option and the Earnest Money, and any Additional Earnest Money, shall be returned to Buyer, and this Agreement shall be deemed cancelled and null and void with no further liability of either party hereunder. Seller shall provide extended coverage over general exceptions 1-5 and insure over the GAP at its expense, 11. Liquidated Damages; Default. SHOULD BUYER FAIL TO PERFORM THIS CONTRACT PROMPTLY IN THE TIME AND MANNER SPECIFIED, THE EARNEST MONEY SHALL BE FORFEITED BY BUYER AS LIQUIDATED DAMAGES AS SELLER'S EXCLUSIVE REMEDY, AND THIS CONTRACT SHALL BE VOID. IN THE EVENT OF ANY DEFAULT BY SELLER UNDER THIS AGREEMENT, BUYER SHALL BE ENTITLED TO THE IMMEDIATE RETURN OF ALL EARNEST MONEY AND ADDITIONAL EARNEST MONEY AND MAY PURSUE THE REMEDY OF SPECIFIC PERFORMANCE AS ITS SOLE AND EXCLUSIVE REMEDY. 12. Time of the Essence. Time is of the essence of the terms and conditions of this Contract. 13. Closing Documents and Funds. At Closing Seller shall convey fee simple title to the Premises, subject only to the Permitted Exceptions, to Buyer or whomever Buyer may direct by stamped recordable warranty deed. Seller shall execute and deliver a Seller's 4 Affidavit and FIRPTA Affidavit in customary form and such other documents as the Title Company shall reasonably request. The Title Company closing fee shall be divided equally between the parties . The remainder of the Purchase Price shall be paid and all documents required by the transaction shall be signed and delivered. Seller shall provide all ordinances or other corporate documents to satisfy Title Company concerning the authority to convey. 14. Governmental Compliance. The parties agree to comply with the following federal or state acts when applicable: A. Illinois Real Estate Transfer Tax Act with Seller to pay all transfer taxes due at Closing including any Elgin requirements or proof of exemption; B. Federal Real Estate Settlement Procedures Act (RESPA); and C. Illinois Good Funds Act. 15. Notices. All required notices shall be in writing and shall be served directly upon the Seller, Buyer and their respective attorneys and in the case of the Buyer with a copy to the Catholic Diocese of Rockford, attention, Ellen Lynch, General Counsel, 555 Colman Center Drive, Rockford, Illinois, P.O. Box 7044, 61125 (e-mail to ELynchga rockforddioces.org) by (a) personal delivery, (b) regular or express mail, (c) FAX machine, or (d) e-mail if an e-mail address has been furnished by the recipient or is shown on this Contract, and delivery of such e-mail has been confirmed. Notices shall be deemed satisfactorily delivered at the time of personal delivery, mailing, FAX, or e-mail transmission regardless of the time of actual receipt by the other party, or their attorney. For purposes of execution of this Contract and providing subsequent notices, including contingency removals, any electronically signed document or document transmitted by FAX or e-mail shall be treated as an original document. Business days are defined as Monday through Friday excluding federal holidays. 16. Entire Agreement. Following the Effective Date, this Contract shall be deemed effective only upon delivery to the other party, at the address as provided for notices in the preceding paragraph. This document represents the entire agreement and shall be binding upon the parties, their heirs, successors, and assigns. 17. Affirmative Covenants. Seller shall cause the Premises to be maintained in its present condition and shall not knowingly allow the dumping on the Premises of any wastes or substances of any kind whatsoever. Without the prior written consent of Buyer, Seller shall not (i) enter into any transaction in respect to or affecting the Premises, including, without limitation, leases or service, which will survive the Closing, (ii) further encumber the Premises in any form or manner whatsoever, (iii) knowingly create or allow to be created any additional exceptions to title to the Premises, or (iv) enter into any agreement which would prohibit negotiations between Seller and Buyer of extensions of the Due Diligence Period. 18. Entrance of Real Estate. Upon acceptance of this Contract, Buyer and its agent(s) shall have the right to enter upon the Real Estate that will become its Real Estate after the 5 Closing, at its sole risk and cost, for the purpose of inspecting, surveying, testing and otherwise examining the subject Real Estate. Buyer shall indemnify and save Sellers harmless from and against any and all loss, cost or expenses (including without limitation reasonable attorneys' fees) from any claim for death, bodily injury or damage arising from its entry upon the Real Estate that will become its after Closing. Any party performing work on or to the Real Estate, such as soil borings shall provide evidence of liability insurance naming the Seller as additional insured. 19. As Is: Covenant Not To Sue. Except as otherwise expressly provided herein: A. The Seller agrees and shall deliver to the Buyer at Closing possession of the Premises including but not limited to all improvements thereon and appurtenances thereto in"AS IS" condition, subject to the provisions of Paragraph 9A hereof B. The parties hereto further understand and agree that the Seller 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 Premises and that the Buyer hereby waives and releases any claim for contribution against, and covenants not to sue the Seller, or the Seller'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 Premises or its migration to any other site or location or arising out of or in connection with any Environmental Law(as hereinafter defined). C. The Buyer hereby acknowledges and agrees that it is purchasing the Premises in its "as is" and "where is" condition and that, as of the Closing, the Buyer will be purchasing the Premises with no direct recourse or direct rights of action against the Seller or the Seller's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors or assigns. D. The Buyer for itself and its successors, assigns and grantees, hereby covenants and agrees that in consideration of this Agreement, neither the Buyer nor its successors or assigns shall directly or indirectly sue the Seller or the Seller'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 Premises or any Environmental Law (as hereinafter defined). The covenant and Agreement of the Buyer as set forth in the preceding sentence shall hereinafter be called the "Covenant Not to Sue". The parties hereto understand and agree that The Buyer's 6 Covenant Not to Sue the Seller as stated herein does not apply to any action taken by the Buyer to enforce any contractual obligations of the Seller as may be specifically set forth in this Agreement and does not constitute an indemnity Agreement between the parties and that the Seller retains any liability it may have for claims brought by third parties including but not limited to any governmental agencies, provided, however, that the Buyer agrees not to assign any claims against the Seller or the Seller's former, current and future officials, officers, employees, agents, attorneys, heirs, personal representatives, successors and assigns to any third parties. E. "Environmental Condition" shall mean any condition or situations existing on, under, at or about the Premises, any improvements thereon, the groundwater, subsurface water, and/or the underground soil and geologic conditions thereunder, as of the date of the 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, 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 Seller to the Buyer or in any report generated by the Buyer's Environmental Investigations of the Premises. F. "Premises" 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. G. "Environmental Law" shall mean any federal or state law, statute, regulation, rule, order, decree, judgment or direction concerning environmental protection or environmental health and safety including, without limitation, common law, 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. H. "The Seller" 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. The provisions of this Section 19 shall be deemed remade as of the Closing and shall survive the Closing and shall not be merged into the closing documents. 7 20. Destruction. If prior to delivery of the Deed the improvements on the Premises are destroyed or materially damaged by casualty, Buyer shall have the option of declaring this Agreement void and receiving a refund of its Earnest Money, or of accepting the Real Estate as damaged or destroyed together with the proceeds of any insurance payable as a result of the destruction or damage, which proceeds Seller shall assign to Buyer. 21. Agreement Execution. This Agreement may be executed in multiple counterparts, each of which shall be regarded as an original hereof, but all of which together shall constitute one and the same instrument. 22. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Venue shall be in Kane County. 23. Seller's Option to Repurchase the Premises. In the event the Buyer has not commenced with the construction of the Project by five (5) years after the date of the Closing ("Construction Commencement Date"), the Seller shall have the option of repurchasing the Premises from the Buyer. In order to exercise such option, Seller shall provide Buyer written notice thereof within one hundred and eighty (180) days after the Construction Commencement Date. In the event Seller elects to exercise such option and provides Buyer such notice, Seller's repurchase of the Premises from the Buyer shall be for the same Purchase Price as provided for in this Agreement and pursuant to the other terms and conditions of this Agreement. Closing on any such repurchase by the Seller from the Buyer shall occur within sixty (60) days of the notice from the Seller to the Buyer that Seller is exercising its option to repurchase the Premises. In the event the Seller does not provide Buyer written notice to exercise the option to repurchase the Premises within one hundred and eighty (180) days after the Construction Commencement Date, Seller's option to repurchase the Premises shall be deemed terminated. Buyer agrees not to demolish or alter the parking lot improvements on the Premises until Buyer otherwise commences with the construction of the Project, provided, however, Buyer may perform routine maintenance and repairs on the parking lot improvements on the Premises prior to the Construction Commencement Date. 24. Entire Agreement. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. This Agreement shall not be altered, modified or changed unless in writing and executed by all parties hereto. This Agreement shall be binding upon the parties, their heirs, executors, administrators, personal representatives, successors and assigns. 25. Real Estate Commissions. The parties represent and warrant to one another that neither has engaged the services of a real estate broker. 8 • Dated: November i 1/"- , 2016 BUYER: SELLER: ST. JOSEPH CHURCH CITY OF ELGIN an Illinois Religious corporation BY: Q By: /( "/ t - - Glen L. Nelson David ap in Its: Vice-President Its: Mayor ATTEST: By: wLA fi‘d Its: City Clerk Date: December 21, 2016 C:\Users\elynch\AppData\Local\Microsoft\Windows\INet Cache\Content.Outlook\AAORI8LA\RE Contract-115-121 Center-St Joseph clean 11- 9-16.docx 9 EXHIBIT A LEGAL DESCRIPTION LOT 8 OF P. J. KIMBALL JRS. ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. 10