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HomeMy WebLinkAboutRESOLUTION - 26-22 - 5/24/2022 - Real Estate Sales Agreement Vulcan Lands, Inc, 1520 and 1700 Midway CourtRESOLUTION NO.26-22 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A REAL ESTATE SALES AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND VULCAN LANDS, INC., (1520 AND 1700 MIDWAY COURT) 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 1: That the Mayor be and is hereby authorized to sign the attached document marked: REAL ESTATE SALES AGREEMENT 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 24t' day of May 2022 APPROVED this 24th day of May 2022 APPROVED: Mayor Craig B. Johnson Village of Elk Grove Village ATTEST: Loretta M. Murphy, Village Clerk DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE REAL ESTATE SALES AGREEMENT THIS AGREEMENT is made and entered into as of the day of May, 2022 by and between the Village of Elk Grove Village, an Illinois home rule municipal corporation located in Cook and DuPage Counties, Illinois (the "Village" or "Buyer") and Vulcan Lands, Inc., a New Jersey corporation ("Seller"), and its related entity in possession, Vulcan Construction Materials, LLC, a Delaware limited liability company ("Vulcan"). Seller, Vulcan and the Village are sometimes referred to herein as a "Party" or "Parties." RECITALS A. The Village is in the process of creating the "Midway Court Redevelopment Project Area," ("Midway Court TIF") as that term is defined by the Illinois Tax Increment Reallocation Act (65 ILCS 11-74.1-1 et seq.) (the "Act"). If approved, the Midway Court TIF will be comprised of two parcels of real property located at 1520 and 1700 Midway Court (collectively, the "Vulcan Property"), consisting of 4.89 acres as legally described in Exhibit A attached hereto. B. Vulcan currently operates a concrete recycling business on the Vulcan Property, which the Village is desirous of acquiring and, accordingly, the Village has informed Vulcan that the Village may use its powers of eminent domain to acquire the Vulcan Property. C. The Village, after due and careful consideration, has concluded that the construction and redevelopment of the Vulcan Property will accomplish all of the following public purposes to justify the use of eminent domain: convert the Vulcan Property to its highest and best use, further the growth of the Village, increase the assessed valuation of the real estate within the Village, generate increased utility taxes, enhance ComEd's electrical distribution system infrastructure for the benefit of surrounding properties, enhance the aesthetics and appearance of the Business Park, foster increased DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE economic activity within the Village, and otherwise be in the best interests of the Village by furthering the health, safety, and welfare of its residents and taxpayers. D. The parties have, in lieu of proceeding through the expense and delay of eminent domain proceedings, negotiated this agreement for the sale and conveyance of the Vulcan Property to the Village in lieu of proceeding to litigation. E. The Parties agree that the sale is under threat of eminent domain and therefore an "involuntary conversion" for purposes of Internal Revenue Code Section 1033. F. The Village, as Buyer, is also aware that Seller's intention is to complete a 1031 Exchange through this transaction and the Village agrees to cooperate with Seller to accomplish same, at no additional cost or liability to Buyer." NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: I RECITALS PART OF AGREEMENT The recitations set forth in the foregoing Recitals are material to this Agreement — with particular attention to the recitals concerning the use of eminent domain powers, the 1033 exchange, and the 1031 exchange -- and the Recitals are hereby incorporated into and made a part of this Agreement as though they were fully set forth in this Article I. II MUTUAL ASSISTANCE The Parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications (and, in the Village's case, the adoption by the Village of such ordinances and resolutions), as may be necessary or appropriate to carry out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying out said terms, provisions and intent. The Village further agrees to cooperate 2 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE with Vulcan in identifying possible locations that are eligible or could become eligible for the relocation of Vulcan's operations within the Village. III SALE AND CLOSING ON VULCAN PROPERTY 3.01. Property. Seller is the fee simple owner of those two parcels of real property located at 1520 and 1700 Midway Court (collectively, the "Vulcan Property"), consisting of 4.89 acres as legally described in Exhibit A attached hereto (the "Real Estate"). 3.02. Purchase Price. Subject to the terms and conditions of this Agreement, the aggregate purchase price (the "Purchase Price") to be paid by Buyer to Seller for the Property is Sixteen Million, Five Hundred Thousand Dollars ($16,500,000.00), which Purchase Price shall be paid by Buyer to Seller by wire transfer at Closing (hereinafter defined). Purchaser will deposit $250,000.00 with Chicago Title Insurance Company, ("Escrowee"), as Earnest Money within 5 calendar days after the signing of this Contract, to be applied on the Purchase Price, and agrees to pay or satisfy the balance of the Purchase Price in cash, plus or minus prorations or conditions, as set forth herein, at the time of Closing. 3.03 Annexation of the Vulcan Property. Seller agrees to provide a signed petition for annexation of the Vulcan Property within five days after the conclusion of the Investigation Period. The Village Corporate Authorities shall pass and approve an ordinance annexing the Property to the Village and do all thing necessary or appropriate to cause the Vulcan Property to be validly annexed to the Village, including but not limited to, execution of a plat of annexation no later than June 1, 2022. 3.04 Title. a. Title to the Property shall be good and marketable, free and clear of all liens, encumbrances, restrictions, and other title objections other than easements 3 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE of record as of the date of this Agreement and physical encroachments existing as of the date of this Agreement. Seller shall deliver a commitment for an owner's title insurance policy from Chicago Title Corporation (the "Title Company") in a form acceptable to Buyer (the "Title Policy") insuring title in the Property issued at regular rates. b. Seller shall also deliver a survey of the Property (the "Survey") that was completed no earlier than April 1, 2020. c. In the event Buyer raises any title objections with respect to the Title Commitment and/or any objections with respect to the Survey, Seller shall use its best efforts (except for easements of record or physical encroachments existing as of the date of this Agreement) to remove monetary liens, judgments or encumbrances to (i) correct, at Seller's cost and expense, all such title objections and Survey objections before Closing to Buyer's reasonable satisfaction, and (ii) deliver to Buyer adequate assurances that all monetary liens, judgments or encumbrances will be removed before or at Closing. If Seller is unable to correct such objections and/or provide such assurances before Closing to Buyer's reasonable satisfaction, Buyer may have the option of (a) taking such title as Seller can give without abatement of the Purchase Price, except that any existing liens, judgments or encumbrances which can be removed by the payment of money shall be paid and discharged by Seller at or prior to Closing, or (b) terminating this Agreement. Should Seller violate or fail to fulfill and perform any of the terms and conditions of this Agreement required to be performed by Seller, Buyer shall have all remedies available to it at law and/or in equity, including, without limitation, the right to terminate this Agreement and obtain the immediate return of any deposit or to compel specific performance of Seller's obligations hereunder. 3.05 Acceptance of Environmental Conditions "As -Is". a. Seller has disclosed to Buyer that there are underground petroleum fuel storage tanks, underground utilities, underground foundation structures for a billboard, a well, buildings, and above ground storage containers on the Vulcan Property ("Existing Environmental Conditions"). Buyer is purchasing the property with knowledge of the Existing Environmental Conditions and Buyer agrees to take the Vulcan Property "As -Is" with all faults, including any and all conditions associated with or arising from the Existing Environmental Conditions, including but not limited to any leaks from the underground storage tanks, any contamination in the well, and any hazardous materials (e.g., asbestos) in the buildings or the above ground storage containers. b. Due to Buyer's time requirements, Buyer has agreed to accept all responsibility and liability associated with the Existing Environmental Conditions, including but not limited to the removal and any required 4 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE remediation of any and all conditions resulting from or caused by the Existing Environmental Conditions. C. The Village further covenants and agrees to defend and indemnify Vulcan from any and all claims, actions, judgments, liabilities, liens, lawsuits, damages, penalties, fines, costs, attorneys' fees, or any other expenses, however styled and regardless of theory of law or statute or authority, arising from or related to, directly or indirectly, the Existing Environmental Conditions. d. The obligations of this paragraph 3.04 shall survive the Closing. 3.06 Prorations; Realty Transfer Tax. a. General taxes, prorated as of the Closing Date at the time of Closing, and other similar items ("Costs") shall be credited at 105% of the last ascertainable full year's real estate tax bill, regardless of any change in real estate tax assessment. b. The parties agree that this transaction is exempt from all state, county and local realty, conveyance and/or documentary transfer taxes. c. All recording charges shall be paid by Buyer, except for recording charges in connection with the clearing of any title issues including, without limitation, mortgage satisfactions/releases, and UCC-3 financing statements, which shall be Seller's responsibility. 3.07 Closing. Provided that all conditions contained herein have been met or waived, the closing of the transactions contemplated hereby (the "Closing") shall occur on or after September 1, 2022 (the "Anticipated Closing Date"), or on such other date as mutually agreed upon in writing by the parties; provided, however, Buyer shall have the right, in its sole discretion, to extend the time period for the Closing until the later of: (a) thirty (30) days after the Anticipated Closing Date, or (b) five (5) business days following all conditions to Closing contained herein having been met or waived (the "Closing Date"). The parties intend to exchange executed documents prior to the Closing, to be held in escrow by the Title Company, with such Closing to be conducted by mail and telephone, together with wire transfer of funds. The parties also anticipate that for purposes of the 5 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE 1031 exchange, the Parties may need to execute an amendment to the escrow agreement and consequently the Closing Statement designating the qualified intermediary as the Seller. 3.08 Deliverables. Purchaser shall have an Investigation Period which shall terminate not later than June 30, 2022 to determine the suitability of the Vulcan Property. Vulcan shall deliver to the Village all reports and studies it has in its possession including copies of surveys, title policies and environmental and soil reports. The Buyer, its agents, and assignees shall have the right to enter onto the Vulcan Property to conduct its inspections and testing, including environmental and soil testing. Before entering onto the Vulcan Property, the Village shall deliver a certificate of insurance naming Vulcan as an additional insured and will indemnify Vulcan for any loss or claim arising from the Village's activities. Prior to Closing, Seller shall terminate all leases pertaining to the Vulcan Property. 3.09 License to Vulcan to Remain in Possession of the Vulcan Property; Escrow. After the Village closes on the Vulcan Property, Vulcan shall have the right to remain in possession of and operate --consistent with its obligations to vacate the Vulcan Property as set forth herein --its business on the Vulcan Property until December 31, 2022. Upon the Village taking title to the Vulcan Property, Vulcan shall deliver to the Village a certificate evidencing insurance for the Village -owned Vulcan Property and for the operation of the Vulcan business in commercially reasonable amounts, naming the Village as an additional insured. The license granted in this paragraph 3.09 shall survive closing. 3.10 Brokers. Each Party warrants and represents to the other that neither Party has retained a broker in connection with this sale and purchase of the Vulcan Property and each Party hereby indemnifies, defends and holds harmless the other against all claims for 6 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE broker's fees or similar commissions from any brokers or finders, claiming by, through or under the indemnifying Party. IV OWNERSHIP AND POSSESSION BY VILLAGE 4.01. Clearing of Vulcan Property. On or before December 31, 2022, Vulcan shall remove the machinery, inventory, and materials listed on Exhibit B that are currently located on the Vulcan Property. The buildings, the well, the underground petroleum storage tanks, the underground utilities, the billboard foundation (but not the billboard), and the above ground storage containers, and all other items not listed on Exhibit B may be left at the Vulcan Property, with no obligation for Vulcan to cause their removal. Any items left on the Vulcan Property after December 31, 2022, shall become the property of the Village. The Parties shall place $250,000 of Seller's proceeds in a strict joint order escrow account with the title company that shall be paid out to Seller upon Seller's delivery of possession to Buyer, on or before December 31, 2022, following Seller's removal of items set forth in Exhibit B. 4.02. Insurance and Utilities. Vulcan agrees to obtain or cause it agents and contractors to obtain workmen's compensation and employer's liability insurance coverage as required by applicable law and in commercially reasonable amounts with respect to operations on the Vulcan Property following the closing. Vulcan shall also be responsible for all utility bills for the Vulcan Property through December 31, 2022 unless earlier surrendered to the Village. The obligations of this paragraph 4.02 shall survive the Closing. 4.03. Delay. For the purposes of any of the provisions of this Agreement, neither the Village nor Vulcan, nor any successor in interest, shall be considered in breach of, or default in, its obligations under this Agreement in the event of any delay caused by events or conditions beyond the reasonable control of the party which in fact prevents the party 7 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE from discharging its respective obligations hereunder and the timeframes for performance of those obligations shall be extended accordingly. 4.04. Assistance to Vulcan. If Vulcan is able to relocate within the Village, the Village agrees to provide Vulcan with assistance with respect to obtaining building permits from the Village, and any permits or approvals required from any governmental agency, whenever reasonably requested to do so; provided, however, that all requests for assistance are in compliance with approved building plans and specifications, and all applicable codes. Vulcan shall notify Village staff of all meetings scheduled with other government agencies to which Vulcan shall have the right to send a Village representative. V DISCLAIMERS AND WAIVERS 5.1 No Reliance on Documents. Except as expressly stated herein, Seller makes no representation or warranty as to the truth, accuracy or completeness of any materials, data or information delivered by Seller to Purchaser in connection with the transaction contemplated hereby. Purchaser acknowledges and agrees that all materials, data and information delivered by Seller to Purchaser in connection with the transaction contemplated hereby are provided to Purchaser as a convenience only and that any reliance on or use of such materials, data or information by Purchaser shall be at the sole risk of Purchaser, except as otherwise expressly stated herein. Without limiting the generality of the foregoing provisions, Purchaser acknowledges and agrees that (a) any environmental or other report with respect to the Property which is delivered by Sellers to Purchaser shall be for general informational purposes only, (b) Purchaser shall not have any right to rely on any such report delivered by Sellers to Purchaser, but rather will rely on its own inspections and 8 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE investigations of the Property and any reports commissioned by Purchaser with respect thereto, (c) neither Sellers, any affiliate of Sellers nor the person or entity which prepared any such report delivered by Sellers to Purchaser shall have any liability to Purchaser for any inaccuracy in or omission from any such report or in verbal communication. Purchaser hereby releases Sellers from any claims Purchaser has or may have arising out of the materials provided by Sellers to Purchaser. 5.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLERS ARE NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLERS' LIMITED WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF SELLERS TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLERS SHALL SELL AND CONVEY DocuSign Envelope ID: 6382E961-5A56-4BB0-970E-A05BF72C78CE TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT. 5.3 Effect and Survival of Disclaimers. Sellers and Purchaser acknowledge that the Property being sold subject to the provisions of this Article V is a material condition of the transaction contemplated by this Agreement. Sellers and Purchaser agree that the provisions of this Article V shall survive Closing. VI GENERAL PROVISIONS 6.01. Powers. The Village hereby represents and warrants that the Village has full constitutional and lawful right, power and authority, under currently applicable law, to execute and deliver and perform the terms and obligations of this Agreement. 6.02 Remedies and Limitation of Liability. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the Party claiming such failure shall notify, in writing, the Party alleged to have failed to perform of the alleged failure and shall demand performance by serving written notice to other. No breach of this Agreement may be found to have occurred if performance has commenced to the reasonable satisfaction of the complaining party within thirty (30) days of the receipt of such notice. If necessary, the Closing may be delayed per the number of business days necessary for the performance to correct any alleged breach of this Agreement. Each party shall have as its sole and exclusive remedy the right to seek an order of specific performance. Notwithstanding anything to the contrary contained herein, Seller's liability for any breach of this Agreement shall be limited to Buyer's actual 10 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE out-of-pocket damages, inclusive of reasonable attorneys' fees, in no event to exceed Fifty Thousand and 00/100 Dollars ($50,000.00). 6.03. Authorized Parties. Whenever under the provisions of this Agreement and other related documents and instruments or any supplemental agreement, request, demand, approval, notice or consent of the Village or Vulcan is required, the Village's approval shall be granted by the Mayor or his designee; and for Vulcan, by any officer or managing member as designated in writing from time to time (in any event, the officers or managing member executing this Agreement are so authorized). 6.04. Time of Essence. Time is of the essence of this Agreement. The Parties will make every reasonable effort to expedite the subject matters hereof and acknowledge that the successful performance of this Agreement requires their continued cooperation. 6.05. Amendment. This Agreement, and any exhibits attached hereto, may be amended only by the mutual consent of the Parties, by the adoption of an ordinance or resolution of the Village approving said amendment, as provided by law, and by the execution of said amendment by the Parties or their successors in interest. 6.06. Assigns. This Agreement shall be binding upon the Parties and their respective successors and assigns. 6.07. Severability. If any provision, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants or portions of this Agreement and, to that end, any provisions, covenants, agreements or portions of this Agreement are declared to be severable. 6.08. Illinois Law. This Agreement shall be construed in accordance with the laws of the State of Illinois. 6.09. Notice. All notices and requests required pursuant to this Agreement shall be sent as follows: DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE To Vulcan: Vulcan Lands, Inc. 1200 Urban Center Drive P.O. Box 385014 Birmingham, AL 35242-5014 Attn: President With copies to: Derke Price, Attorney Ancel Glink 1779 N. Mill Street Naperville, IL 60563 To the Village: Office of the Village Manager Village of Elk Grove Village 901 Wellington Elk Grove Village, Illinois 60007 With copies to: Office of the Village Clerk 901 Wellington Elk Grove Village, Illinois 60007 Or at such other addresses as the Parties may indicate in writing to the other either by electronic mail, personal delivery, courier, or by registered mail, return receipt requested, with proof of delivery thereof. Mailed notices shall be deemed effective on the third day after mailing; all other notices shall be effective when delivered. 6.10 Partnership; No Third Party Beneficiaries. Nothing contained herein shall be construed as creating a partnership between the Village and Vulcan or as creating or conferring any interest or benefit upon any third party. 6.11. Counterparts. This Agreement may be executed in several counterparts, and may be executed through use of electronic signatures, each of which shall be an original and all of which shall constitute but one and the same agreement. 6.12 Exhibits. The exhibits attached to this agreement are hereby incorporated into and made a part of this Agreement. WN DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE 6.13 Survival of Closing. The provisions of the following Sections of this Agreement shall survive Closing and shall not be merged into the execution and delivery of the Deed: 3.04, 3.08, 4.02 and Article V. /signature page to follow/ 13 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE IN WITNESS WHEREOF, the Parties have duly executed this Agreement pursuant to all requisite authorizations as of the date first above written. VILLAGE OF ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS, An Illinois municipal corporation C• Mayor Craig B. Johnson ATTEST: Village Clerk, Loretta M. Murphy VULCAN LANDS, INC. DocuSigned by: ( .488 Its: VULCAN CONSTRUCTION MATERIALS, LLC Fv DocuSign(u�•erd''b/Iy�{� lx"tA4 Its: 14 DocuSign Envelope ID: 63B2E961-5A56-4BB0-970E-A05BF72C78CE Exhibit A Legal Description of the Vulcan Property 15 DocuSign Envelope ID: 63B2E961-5A56-48B0-970E-A05BF72C78CE Exhibit B List of Items to Be Removed from Vulcan Property by Vulcan On or Before 12/31 /22 Elk Grove Equipment Removal List • All crushing and processing equipment (excluding concrete foundations) o Jaw Crusher o Jaw Feeder o HSI Crusher o Cone Crusher o Horizontal Screens (2) o All Conveyors o Steel Structures o Motor Control Centers (2) o Parts Storage Trailers (2) o Magnets and magnet stands o Plant Sump Pump o Well pump o Water Tank • Mobile Equipment o Loaders o Excavators o Skid Steers o Service Trucks o Water Truck o Pick-up Trucks • Truck Scale (excluding concrete foundation) • All spare parts located in various lay -down locations inside the facility • Various parts, supplies, tools, and equipment from offices and shops • Inbound concrete rubble stockpiles used for feed stock • Finished product stockpiles • All free-standing concrete blocks • All scrap metal generated from the crushing and processing operations • Signs, gates, and north block wall