HomeMy WebLinkAboutRESOLUTION - 31-21 - 6/15/2021 - Jay and Harry Corporation Real Estate Contract, 1920-32 E. Higgins,RESOLUTION NO.31-21
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A REAL ESTATE SALES CONTRACT BETWEEN THE VILLAGE OF ELK
GROVE VILLAGE AND JAY & HARRY CORPORATION (1920-32 E. HIGGINS ROAD)
BE IT RESOLVED by the Mayor and Board of Trustees of the Village of Elk Grove
Village, Counties of Cook and DuPage, State of Illinois as follows:
Section l: That the Mayor be and is hereby authorized to sign the attached documents
marked:
REAL ESTATE SALES CONTRACT
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village
Clerk is authorized to attest said documents upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its passage
and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 1511 day of June 2021.
APPROVED this 15t' day of June 2021.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Loretta M. Murphy, Village Clerk
05/03/21
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF +1117inis
SE AND SALE (the "Agreement") is made and
entered into as of the � day o021 ("Effective Date"), by and between JAY &
HARRY CORPORATION, acorporation ("Seller"), and the VILLAGE OF ELK
GROVE VILLAGE, an Illinois home -rule municipality located in Cook and DuPage counties,
("Village"). Village and Seller also are sometimes referred to herein as a "party" or "party(ies)".
A. Seller is the legal title holder of a certain parcel of land located at 1920-32
E. Higgins, Elk Grove Township, Cook County, Illinois, being legally described on Exhibit A
attached hereto, along with all improvements, rights and personal property located thereon (the
"Property"). Seller desires to sell, transfer and convey said Property according to the terms and
provisions hereinafter set forth, subject to certain conditions set forth herein.
B. Village desires to purchase the Property subject to Village's investigation of a title
commitment or policy ("Title Report") and an ALTA survey ("Survey") and certain other
conditions. The Title Report and Survey and all other studies and reports listed in Section II are
collectively referred to herein as the "Due Diligence Materials."
C. Seller agrees that as a condition of closing, the Property will be free from leases and
there shall be no remaining residents or occupants.
D. The parties desire to sell and purchase said Property according to the terms and
provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the representations contained herein, and for
other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree
as follows:
I. Purchase Price/Contingency
A. Agreement to Sell. Upon execution of this Agreement and subject to the terms and
conditions contained in this Agreement, Seller agrees to sell, and Village agrees to purchase
from Seller all of Seller's right, title and interest in and to the Property.
B. purchase Price. The "Purchase Price" for the Property shall be Four Million Two Hundred
Fifty Thousand and No/100 Dollars ($4,250,000.00) payable at Closing in cash via wire
transfer of immediately available funds. The "Title Company" shall be Chicago Title
Insurance Company, Illinois. The Title Company shall also act as Escrowee ("Escrowee")
for the Earnest Money Escrow and the Deed and Money Escrow, as hereinafter described.
C. Within five (5) business days after the Effective Date, Village will deposit into escrow with
the Title Company Seventy -Five Thousand Dollars ($75,000.00) into a strict joint order
escrow as "Earnest Money," which will be applied toward the Purchase Price at Closing or
paid to Seller as liquidated damages if this Agreement is terminated as a result of Village's
default or to Village if Village elects to terminate this Agreement prior to the expiration of
the Due Diligence Period.
II. Due Diligence Period
Village shall have sixty (60) days from the Effective Date ("Due Diligence Period") to
investigate the suitability of the Property for Village's intended use, which shall include:
A. Reports and Studies: Within seven days of the Effective Date, Seller shall deliver to Village
any and all tests, reports, municipal ordinances and surveys in Seller's possession. Seller
shall deliver its franchise agreement with Day's Inn by Wyndham, along with a list of all
contracts, leases and agreements in effect as of the Effective Date. Village shall not disclose
Seller's financial information to anyone other than its attorneys and other consultants.
B. Title Policy: A title commitment for the Property issued by the Title Company (which must
include electronic links to those documents listed in Schedule B) naming Village as the
proposed insured in the amount of the Purchase Price with commercial extended coverage.
Such title commitment shall show title to the Property to be in the Seller subject only to
(i) covenants, conditions and restrictions of record acceptable to Village; (ii) public
utility easements of record; and (iii) title 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 Seller shall so remove at that time ("Permitted Exceptions").
C. Testing & Inspection: Village shall have full access, including all existing structures and
buildings, to the subject Property, for purposes of soil boring and testing, surveying,
engineering, examination and planning, and from and after the execution of this Contract
in order to conduct a Phase I Environmental Site Assessment ("Phase I") which shall be
paid for by the Village. Such Phase I shall be conducted and concluded by May 28, 2021
or at such later date as mutually agreed upon by the Parties and as otherwise practicable. If
the Phase I reveals environmental concerns that necessitate a Phase II assessment, Village
shall share such concerns with Seller. Village, at its sole discretion, may order and pay for
said Phase II or give notice of termination of the Contract. If Village proceeds with the
Phase II assessment, Village shall have full access to the subject Property for purposes of
soil testing, surveying, engineering, examination and planning, and from and after the
execution of this Contract in order to conduct Phase II Environmental Site Assessment
("Phase II"). Village shall have until June 18, 2021, or such later date as mutually agreed
upon by the Parties and as otherwise practicable considering the timing and receipt of prior
due diligence requirements, to complete said Phase Il assessment. If the Phase II indicates
no environmental concerns, this contingency shall be satisfied. If the Phase II raises
additional concerns either Party may terminate this Contract. With respect to any and all
assessments/inspections, Village shall save and hold harmless Seller from any costs or
Page 2 of 13
liabilities resulting from such access, and Village shall restore the subject Property to its
original condition after each such inspection including but not limited to filling and
repairing soil borings.
D. Survey. Village shall order an ALTA survey ("Survey") of the Property, in a form
acceptable to the Title Company in order to issue its extended coverage policy. Seller shall
give Village a credit for the cost of the Survey at Closing, in an amount not to exceed Ten
Thousand Dollars ($10,000.00).
If, prior to the expiration of the Due Diligence Period, Village determines that the Property is not
suitable for Village's intended use, Village shall deliver written notice to Seller that it has elected to
terminate this Agreement and the Earnest Money and any interest earned thereon shall be returned
to Village. Unless Village terminates this Agreement at the expiration of the Due Diligence Period,
Village shall have seven (7) calendar days to increase the Earnest Money by Seventy -Five Thousand
Dollars ($75,000) for a total of One Hundred Fifty Thousand ($150,000), which shall be non-
refundable except in the event of a default by Seller.
III. Closing
A. Closin Closing Date. The Closing Date shall be fourteen (14) days after the later of (i)
expiration of the Due Diligence Period; (ii) fourteen (14) days after Seller provides an
affidavit to Village stating that the Property is free of tenancies and occupants or (iii) a
different date as may be mutually agreed to by the Parties in writing, but in no event later
than three (3) months after the Effective Date.
B. Deposit(s) Into Closing Escrow. At Closing for the Property, the parties shall be required
to deposit the following funds and documents into the Deed and Money Escrow:
(i) Seller's Deposit. Seller shall deliver the following documents ("Closing
Documents"):
a. A stamped, recordable Warranty Deed executed by Seller conveying to
Village or its permitted nominee fee simple title to the Property, subject only
to the Permitted Exceptions.
b. Assignment(s) of any insurance policies and other contractual rights
pertaining to the Property which Village has elected in writing to accept.
Village shall elect to accept or reject any such policies and contractual rights
within sixty (60) days after the Effective Date. In the absence of a written
election by Village within such time period, Village will be deemed to have
elected to assume all such items.
d. An ALTA Seller's Affidavit in customary form.
Page 3 of 13
e. Deed and Money Escrow Instructions as provided for in this Agreement.
f. Any payoff statement(s) to remove any liens or security statements arising
from the acts of Seller and a payoff statement from Day's Inn by Wyndham,
stating the franchise termination amount as of the date of Closing.
g. Copies of Seller's company resolution(s) and other corporate governance
documentation, pertaining to this transaction as required by and in a form
acceptable to the Title Company.
h. Evidence of termination and payment of Seller's agreement with the
reservation system in a form acceptable to Village.
i. A FIRPTA and Bulk Sales affidavit if required by Title Company.
J. Any other documents customarily used in such transaction or otherwise
reasonably required of the Seller by the Title Company or Escrowee in
connection with Closing the transaction and/or issuance of the Title Policy
and to insure title in Village's name at Closing.
k. A bill of sale, conveying title to two shuttle vans and all other personal
property located on the Property as of the Effective Date.
(ii) Village's Deposit. Village shall deliver the following:
a. Purchase Price, subject to any prorations or adjustments expressly provided
for in this Agreement.
b. An ALTA statement and GAP Undertaking in customary form.
C. Copies of Village's resolution(s) and other company governance documents
pertaining to this transaction as may be required by the Title Company.
d. Any other documents customarily used in such transaction or otherwise
reasonably required of the Village by the Title Insurer or Escrowee in
connection with Closing the transaction and/or issuance of the Title Policy.
(iii) Joint Deposits. The parties shall jointly deposit the following:
a. Closing Statement.
b. Transfer Tax Declaration(s) form(s).
C. Any other documents that may be required by this Agreement or by the
Page 4 of 13
Title Company.
C. Possession. At Closing, Village shall be given full, complete and unencumbered possession
of the Property at Closing, free of all tenants, guests and residents.
IV; Title Charges
A. Village shall order a title commitment from the Title Company, for which Seller shall credit
the cost to Village at Closing as well as the standard coverage Owner's Title Insurance
Policy premium. Village shall be responsible for any and all costs associated with any
endorsements which Village requests and Village's lender's title policy.
B. Village shall pay the cost of recording the Deed, if any, and any other documents;
provided that Seller shall pay the cost of recording release documents, if any.
C. Seller shall pay the cost of state, county, and municipal transfer taxes, applicable to the
conveyance of the Property.
D. One-half of the Deed and Money Escrow charges shall be paid by Seller and one-half by
the Village.
V. Tax Prorations
At or prior to Closing, Seller shall pay all ad valorem taxes ("Taxes") due and payable,
including all delinquent taxes and charges, as of the Closing Date and shall credit Seller for
any Taxes not yet due and owing for calendar years 2020 and 2021 at Closing. Said credit
shall be based upon 115% of the last ascertainable tax bill and the credit shall be final.
VI. Deed & Money Escrow
A. Deed and Money. The transaction contemplated herein shall be closed through an escrow
(the "Escrow") with the Title Company, in accordance with the usual form of Deed and
Money Escrow Agreement then in use by the Title Company. The respective attorneys for
Seller and Village are hereby authorized to enter into and execute such Escrow Agreement
and any amendments thereto.
B. Within ten business days of the Effective Date, the attorneys for the parties shall agree on
a form of the Deed and Money Escrow instructions, which shall then be attached hereto as
Exhibit B and made a part hereof. The Escrow instructions shall also include a direction to
the Escrowee to pay-off the amount indicated in the Day's Inn by Wyndham termination
letter, unless Seller has evidence the termination fee was paid prior to Closing.
B. New York Style Escrow. This sale shall be closed by means of a "New York Style Escrow"
whereby the Title Insurer agrees to issue its Owner's Title Policy in favor of Village and
disburse the escrow deposits, including the Purchase Price to Seller upon deposit with the
Page 5 of 13
Title Insurer of the requisite documents. The cost of any New York Style Escrow shall be
shared equally by Seller and Village.
VII. Representations, Warranties and Covenants of Seller
Seller hereby represents warrants and covenants to Village as follows:
A. There is no pending or (to the best of Seller's knowledge) threatened condemnation,
eminent domain, or similar proceeding affecting said Property.
B. Seller represents and warrants that neither Seller, nor any of Seller's agents have entered
into any contract to sell the Property or any portion thereof or any interest therein other than
to the Village pursuant to this Agreement.
C. Seller represents and warrants that neither Seller, nor any of Seller's agents have received
a notice from any governmental authority that the Property is in violation of any code or
law. If Seller or its agents have received such notice, Seller shall deliver a copy along with
the Due Diligence Materials.
D. Seller hereby represents and warrants that it will terminate all employees, including contract
employees in accordance with Illinois law prior to the Closing.
E. As of the date of Closing, there will be no leases, occupancy agreements, management
agreements, or maintenance agreements relating to the subject Property that will effect any
of the terms or conditions of this contract, and Seller agrees not to enter into any such
agreements relating to the subject Property without the written consent of Purchaser. Seller
will take all actions necessary to terminate said Lease(s) and Agreement(s) prior to the
closing of the Property
F. All representations, warranties and covenants made by Seller and Village in this
Agreement shall be deemed to be remade as of the Closing and shall survive the Closing
for a period of one (1) year following the date of Closing. Each party hereby agrees to save,
defend, indemnify and hold the other party harmless from any cost, expenses (including
reasonable attorney's fees), suits, liens, damages and/or liabilities sustained by as a result of
a breach of any of the representations, warranties or covenants contained herein.
VIII. Environmental Matters
Seller has no actual knowledge as to any Hazardous Materials or toxic contaminants or substances
located in, on, under or about the Property, or in any buildings or structures currently located on the
Property, which are or could be or could become detrimental to the Property or otherwise to human
health or the environment generally or which are or could become a violation of any applicable laws
or regulations, provided, however, that as to existence of any latent or otherwise not readily visible
Hazardous Material (if any) as may exist within existing building structures, the foregoing
Page 6of13
representation is made only to the best of Seller's actual knowledge as of this date. For purposes
herein, the term "Hazardous Material" means and includes asbestos, PCB's and any hazardous, toxic
or dangerous waste, substance or material defined as such in (or for purposes of) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9610 et seq.,
any so-called "Superf ind" or "Superlien" law, or any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, related to, or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material as
now or at any time hereafter in effect.
IX. Additional Agreements of Seller
Between the date of this Agreement and the Closing, Seller shall:
A. Not use the Property other than for the same uses and purposes such Property has been
used by Seller during Seller's ownership.
B. Not create, incur or suffer any mortgage, lien, pledge, encumbrance or security interest
in any way affecting the Property, unless such mortgage lien, encumbrance or security
instrument shall be removed by the payment of money at Closing.
C. Not commit any waste or nuisance upon the Property.
D. Not, without first obtaining the written consent of Village, enter into any contracts or
agreements pertaining to the Property, amend or cause to be amended any local laws or
ordinances.
E. Seller shall maintain fire and liability insurance coverage for the Property up and until
the Closing Date, and the risk of loss due to fire, other casualty, or condemnation
remains with Seller. Seller shall provide Village with copies of said policies, which
Village shall have the right to continue at its sole cost and expense.
X. Additional Agreements of Village
Village will grant Seller a total of ten (10) days after the Closing, the opportunity for the
Seller at their own cost to remove possessions from within the buildings. Only material
items may be removed (TVs, mattresses, furniture, telephone system, etc.), but there will be
no structural items removed (windows, doors, locks, A/C units, etc.).
XI Warranties and Representations of Village
Village warrants and represents to Seller that Village has taken all requisite action to
approve this Agreement and the transactions contemplated hereby and to authorize the
execution, delivery and performance hereof. Village further represents and warrants that it
has the financial wherewithal to close on the Property as set forth herein.
Page 7 of 13
XII Default
A. Seller's Default: If Seller shall default in the performance of any of its obligations hereunder
prior to Closing, and if such default is not cured within Five (5) Business Days after notice
to Seller specifying such default, Village shall have the election of the following: the return
of Earnest Money and any interest earned thereon; or, the right of specific performance.
B. Village's Default: If Village shall default in the performance of any of its obligations
hereunder and if such default is not cured within Five (5) Business Days after written notice
to Village specifying such default, Village shall have thirty (30) days to cure and if it fails
to do so, Seller, as its sole and exclusive remedy, shall have the right to terminate this
Agreement and retain the Earnest Money any interest earned thereon.
X11I Notices
Any communication, notice or demand of any kind whatsoever which either party may be
required or may desire to give to or serve upon the other shall be in writing and delivered
registered or certified mail, postage prepaid, return receipt requested, addressed as
follows:
Village: Village of Elk Grove
Attn: George Knickerbocker, Village Attorney
901 Wellington Avenue
Elk Grove, IL 60007
Tele: 847-357-4032
Fax: 847-357-4044
Email: gknickerbocker@clkgroye.org
With a copy to: William J. Payne
Attorney at Law
1100 W. Northwest Hwy., #103
Mount Prospect, IL 60056
Tele: 847-483-5027
Fax: 847-483-5029
Email: williamipayne7(-7a,aol.com
With a copy to: Matthew J. Roan
Deputy Village Manager
901 Wellington Avenue
Elk Grove Village, IL 60007
Tele: 847-357-4004
Email: mroan(a),elk rog ve.org
Page 8 of 13
Seller: JAY & HARRY CORPORATION
With a copy to: Charles Mack
Mack Law Group
1363 Shermer Road, Suite 210
Northbrook Illinois 60062
Phone: 847.239.7212
Any party may change its address for notice by written notice given to the other in the manner
provided in this Section. Any such communication, notice or demand shall be deemed to have
been duly given or served on the date personally served, if by personal service, on the date of
confirmed dispatch, if by electronic communication, or two (2) days after being placed in the U.S.
Mail, if mailed.
XIV. Miscellaneous Terms
A. Waiver. Village reserves the right to waive any of the condition precedents to its obligations
hereunder. No such waiver, and no modification, amendment, discharge or change of this
Agreement, except as otherwise provided herein, shall be valid unless the same is in writing
and signed by the party against which the enforcement of such waiver, modification,
amendment, discharge or change is sought.
B. Controlling Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of Illinois. Venue for any disputes or enforcement hereof shall be in
the Illinois Circuit Court for Cook County, Illinois.
C. Time of Essence. Time shall in all respects be of the essence hereof.
D. Merger. It is understood and agreed that all representations and warranties contained herein
shall not merge into this Agreement and shall be valid and enforceable for a period of one
(1) year from the Closing Date.
E. Assignment. This Agreement and the terms and provisions hereof shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and assignees.
G. Attorneys' Fees. Should either party employ attorneys to enforce any of the provisions
hereof, the party not prevailing in any final judgment agrees to pay the prevailing party all
reasonable costs, charges and expenses, including reasonable attorney's fees, expended or
incurred in connection thereof.
I. Severability. In case any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof and this Agreement
Page 9of13
shall be construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
J. Recordation. Either party shall have the right to record a copy of this Agreement against
the Property or a memorandum thereof.
K. Broker(sjINo Brokers). Each Party hereby represents and warrants to the other that no
broker[s] was involved in his transaction, and hereby indemnifies the other in the event of
a breach of this representation.
L. Counterparts. This Agreement may be signed in counterparts, each of which shall be
deemed originals, and all of which, when taken together shall be deemed a single
instrument. E-mailed or faxed signatures or signatures by DocuSign will be regarded as
originals.
(SIGNATURE PAGES TO FOLLOW)
Page 10 of 13
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above
written.
ATTESTED:
By: Loretta Murphy
Its: Village Clerk
SELLER
JAY & HARRY CORP.
By: !�t� - v , ('<�-A
NAYA ABEN V. PATEL
Its: President
Dated (35 - O %-k - a N
BUYER:
VILLAGE OF ELK GROVE VILLAGE
By: Craig B. Johnson
Its: Mayor
Dated
Page 11 of 13
Tax ID Number: 08-26-101-014-0000
EXHIBIT A
[Legal Description]
Page 12 of 13
EXHIBIT B
(Agreed upon Escrow Instructions)
Page 13 of 13