HomeMy WebLinkAboutORDINANCE - 3407 - 2/10/2015 - HOOGLAND PARTNERS - 321 BONDORDINANCE NO. 3407
AN ORDINANCE AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A REAL ESTATE SALES CONTRACT BETWEEN THE VILLAGE
OF ELK GROVE VILLAGE AND HOOGLAND PARTNERS, LLC (321 BOND
STREET)
WHEREAS, the Village of Elk Grove Village is the owner of a 1.9 acre parcel of
property located at 321 Bond Street in Elk Grove Village; and
WHEREAS, said property has been utilized by the Village for a temporary police station
during the construction of the new Village Hall Complex; and
WHEREAS, with the completion of the new Village Hall Complex, there is not any
foreseeable need for the utilization of said property for municipal purposes; and
WHEREAS, the Village has conducted negotiations with several parties and has
received an offer to purchase said property for an amount equal to the fair market value of said
property; and
WHEREAS, the Village of Elk Grove Village is a home rule municipality as set forth
and defined by the Constitution of the State of Illinois and in addition is empowered to convey
real estate by private negotiation contract pursuant to Ordinance No. 1214 previously adopted by
the Village on April 25, 1978, provided that such contract is approved by a vote of 2/3rds of the
corporate authorities present and voting at the time such contract is approved.
NOW, THEREFORE BE IT ORDAINED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, Illinois as follows:
Section 1: That the Mayor is authorized to enter into a Real Estate Sales Contract
between the Village of Elk Grove Village and Hoogland Partners, LLC for the sale by the
Village of a parcel of property consisting of approximately 1.9 acres, located at 321 Bond Street
in Elk Grove Village and the Village Clerk is authorized to attest to the signature of the Mayor
on said contract, a copy of said real estate sales contract being attached hereto and incorporated
herein.
Section 2: That this ordinance shall be in full force and effect from and after its passage
by 2/3rds vote and approval according to law.
VOTE: AYES:6 NAYS: 0 ABSENT: 0
PASSED this 101h day of February 2015.
APPROVED this 10`h day of February 2015.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Judith M. Keegan, Village Clerk
Ord 12 i SlItIcunMILLI 10001 and
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into on this
Q_ of February, 2015 (the "Effective Date"), by and between the VILLAGE OF ELK GROVE
VILLAGE ("Seller"), and HOOGLAND PROPERTIES, LLC, an Illinois limited liability
company, its Nominee or Assignee ("Purchaser").
RECITALS:
A. Seller is the owner of the Property (as hereinafter defined) consisting of a 25,673 sq.
ft. industrial building on +/-1.92 acres of land located in Cook County, Illinois, commonly known as
321 Bond Street, Elk Grove Village, Illinois.
B. Purchaser desires to purchase the Property (as hereinafter defined) from Seller, and
Seller desires to sell the Property to Purchaser, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS. The following terms used herein shall have the following meanings:
1.1 Closing: The conveyance, transfer and assignment of the Property by Seller to
Purchaser, in accordance with the provisions set forth in this Agreement.
1.2 Closing Date: The date that is thirty (30) days after the expiration, or
Purchasers' written waiver, of the Investigation Period or the Extended Investigation Period, if
applicable, or such other date as is mutually agreed upon by Purchaser and Seller in writing.
1.3 Deed: A recordable warranty deed conveying to Purchaser, or Purchaser's
Entity, fee simple title to the Land, Improvements and Appurtenant Rights (as those terms are
hereafter defined), subject only to the Permitted Exceptions (as hereafter defined).
1.4 Earnest Money: All sums to be paid by Purchaser as provided in Section 2.1
herein. The Earnest Money shall include all interest accrued on all deposits made into the Escrow, as
hereafter defined. All interest accrued with respect to the Earnest Money shall be for the benefit of
Purchaser and shall be disbursed to Purchaser whenever the Earnest Money is returned to Purchaser
in accordance with the terms of this Agreement. The Earnest Money shall be applied towards the
Purchase Price, as a credit to Purchaser, at the Closing and shall be disbursed in accordance with this
Agreement.
1.5 Escrow: The Earnest Money shall be deposited by Purchaser with the Title
Company or an affiliate of Title Company which shall bold the Earnest Money and act as escrow
agent pursuant to the terms of escrow instructions to be executed by Seller and Purchaser, which
shall be in the form of Title Company's standard strict joint order escrow instructions, except it shall
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provide that until the expiration of the Investigation Period, the Earnest Money shall be released on
the sole order of Purchaser and thereafter only upon the joint written direction of Seller and
Purchaser (the "Escrow"). The cost of the Escrow shall be shared equally by Purchaser and Seller.
1.6 Investigation Period: A period of time commencing on the Effective Date
and expiring at 5:00 p.m. CST on the date that is forty-five (45) days thereafter.
1.7 Leases: There are no leases, tenancies or rights of occupancy or possession
affecting the Property.
1.8 Property: Collectively, the Land, Improvements, Appurtenant Rights and
Intangible Property, and defined as follows:
(a) Land: The real estate which is legally described in Exhibit A attached
hereto;
(b) Improvements: The buildings, structures, equipment and all other
fixtures and other improvements constructed on the Land, including all parking areas,
signage, fencing, curbs, sidewalks, landscaping, sewer and other utility facilities, fixtures and
equipment, including, without limitation, lighting, plumbing, electrical equipment and
systems;
(c) Appurtenant Rights: All right, title and interest of Seller to the use
of all easements of record that are appurtenant to the Land, if any, and all strips and rights of
way, if any, abutting, adjacent to, contiguous to or adjoining the Land;
(d) Intentionally Omitted.
(e) Intangible Property: All intangible property in which Seller has an
interest relating to the operation or maintenance of the Land, or the Improvements, if any; all
warranties and guarantees, if any, relating to the construction, improvement or equipment of
or on the Land, or Improvements; all architectural, engineering and construction plans,
drawings, specifications, trademarks, trade names, licenses, entitlements, certificates
(including, without limitation, certificates of occupancy), franchises, permits, authorizations
and approvals (including without limitation, any of the foregoing issued by any governmental
bodies or authorities) used in connection with or relating to the development, construction,
ownership, occupancy or operation of any part of the Land, Improvements or Appurtenant
Rights, if any.
1.9 Purchase Price: Eight Hundred Twenty Five Thousand and No/100 Dollars
($825,000.00), the amount to be paid by Purchaser to Seller at the Closing, subject to adjustment as
set forth herein.
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1.10 Purchaser Entity: Any partnership, corporation or limited liability company
which Purchaser shall establish to acquire the Property, provided that Purchaser, or its members or
managers, shall hold a controlling ownership interest in any Purchaser Entity.
1.11 Title Company: Chicago Title Insurance Company.
2. TERMS OF PURCHASE. Purchaser shall purchase the Property from Seller and
Seller shall sell the Property to Purchaser for the Purchase Price and on the terms and subject to the
conditions hereinafter set forth:
2.1 Earnest Money Deposit. Within three (3) business days after the Effective
Date, Purchaser shall deposit the sum of Five Thousand and No/100 Dollars ($5,000.00) with the
Title Company to be held in the Escrow, as the Earnest Money.
2.2 Balance of Purchase Price. Purchaser shall pay to Seller at Closing the
balance of the Purchase Price, after deduction of the Earnest Money and adjustment for prorations as
provided in this Agreement, by wire transfer of funds.
3. SELLER'S DELIVERIES, INSPECTION AND CONTINGENCIES.
3.1 Seller's Deliveries. Within five (5) days after the Effective Date, Seller shall
deliver to Purchaser copies of the following documents, to the extent that such are in existence and
are in Seller's possession or control on the Effective Date ("Seller's Deliveries"):
(a) Existing title insurance policies, title commitments, subdivision plats,
documents constituting covenants, conditions, restrictions, easements and/or parking
agreements affecting the Property;
(b) existing surveys and topographical maps of the Property;
(c) All architectural and/or engineering plans of or relating to the
Improvements and/or the Property;
(d) All engineering, geotechnical, soils or boring, hydrological, wetlands
and flood zone reports, studies, tests or related correspondence for the Property;
(e) All environmental assessments or reports and all correspondence or
other documents relating to the environmental condition of the Property;
(f) All notices, correspondence or other documents received by Seller
from any federal, state, county or municipal governmental body, department or authority
relating to the Property;
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(g) All real estate tax bills for the Property for the prior three (3) years, all
documentation regarding any proposed increases in the assessed valuation of the Property for
the 2014 and/or 2015 real estate taxes, and all documents relating to all pending real estate
tax complaints, appeals or protests, including, without limitation, fee agreements between
Seller and its attorneys or advisors;
(h) All service or maintenance contracts for the Property, if any ("Service
Contracts"); and
(i) All warranties, guarantees, licenses, entitlements, certificates
(including, without limitation, certificates of occupancy), permits, authorizations and
approvals (including without limitation, any of the foregoing issued by governmental bodies
or authorities) and all other documents constituting part of or evidencing the Intangible
Property.
3.2 Due Diligence. Purchaser shall have the right, at its sole cost, within the
Investigation Period and thereafter as long as this Agreement remains in effect, to review the Seller's
Deliveries and, upon three (3) business days advance notice (which may be verbal) to have the
Property inspected and to have such tests and feasibility studies performed, including but not limited
to Phase I and Phase II site assessments of the environmental condition of the Property, by
representatives of the Purchaser, including but not limited to engineers, architects, and other
construction professionals, as Purchaser shall deem necessary or appropriate (the "Due Diligence").
3.3 Indemnification. Purchaser shall repair any damage to the Property caused
by Purchaser in the course of conducting its Due Diligence and, in the event of such damage, restore
the Property to at least the same condition as before Purchaser conducted its Due Diligence.
Purchaser agrees to indemnify and hold Seller harmless from and against any claims for personal
injury or property damage proximately caused by the negligence or willful misconduct of Purchaser
in performing any Due Diligence at the Property. The foregoing indemnity shall survive the Closing
or earlier termination of this Agreement.
3.4 Investigation Contingency. If Purchaser shall not approve the Seller's
Deliveries or the results of any Due Diligence or if Purchaser determines that the Property is not
suitable for Purchaser's intended use of the Property or is not satisfactory, for any reason, or no
reason, all as determined by Purchaser in Purchaser's sole and absolute discretion, Purchaser shall
have the option to terminate this Agreement by written notice to Seller on or before the end of the
Investigation Period (the "Investigation Contingency"). Such termination shall be effected by
written notice thereof to Seller given prior to the expiration of the Investigation Period, and shall
have the effect of rendering this Agreement null and void, whereupon the Earnest Money and any
interest accrued thereon shall be delivered to Purchaser, and the parties shall have no further
obligations to one another, other than pursuant to the indemnity obligation provided in Section 3.3
above. Except as provided below, if Purchaser does not advise Seller in writing of its election to
terminate this Agreement on or before the end of the Investigation Period, the Investigation
Contingency shall be deemed waived and this Agreement shall remain in full force and effect.
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Purchaser shall have the right to extend the Investigation Period for an additional period of thirty
(30) days (the "Extended Investigation Period") upon written notice to Seller on or before the
expiration of the Investigation Period. If, at any time prior to the expiration of the Extended
Investigation Period, Purchaser determines that the Property is not satisfactory, this Agreement may,
at Purchaser sole election, be terminated. Such termination shall be effected by written notice
thereof to Seller given prior to the expiration of the Extended Investigation Period, and shall have the
effect of rendering this Agreement null and void, whereupon the Earnest Money and any interest
accrued thereon shall be delivered to Purchaser, and the parties shall have no further obligations to
one another, other than pursuant to the indemnity obligation provided in Section 3.3 above.
3.5 Environmental Assessment. As provided in Section 3.1(e), Seller shall
deliver all environmental assessments or reports and all correspondence or other documents relating
to the environmental condition of the Property to Purchaser. If Purchaser's lender determines that
such disclosures are inadequate in connection with Purchaser's financing of the acquisition of the
Property, Seller and Purchaser shall each pay for one-half of the cost of the new Phase I
Environmental Assessment ("Phase I") of the Property. Seller's contribution toward the cost of the
Phase I shall be capped at $1,500.00. If the new Phase I recommends that a Phase II Environmental
Assessment ("Phase II") be prepared based on specific concerns, Seller and Purchaser shall each pay
for one-half of the cost of the new Phase II Seller's contribution toward the costs of the Phase II shall
be capped at $2,500.00. Purchaser shall provide Seller with copies of the Phase I and Phase II, if
applicable.
4. TITLE COMMITMENT AND SURVEY.
4.1 Title Commitment. Within fifteen (15) days after the Effective Date, Seller,
at Seller's sole cost and expense, shall deliver or cause to be delivered to Purchaser or Purchaser's
attorney a commitment (the "Title Commitment") for an ALTA (2006 Form) owner's title insurance
policy (the "Owner's Policy") issued by the Title Company in the amount of the Purchase Price,
covering title to the Land, Improvements and Appurtenant Rights, along with any easement parcels
which benefit the Property, with an effective date not more than thirty days prior to Effective Date,
showing title in Seller, together with copies of all recorded documents listed as exceptions to the
Title Commitment. The Owner's Policy to be issued by Title Company at Closing shall show title to
the Land, Improvements and Appurtenant Rights, along with any easement parcels which benefit the
Property, in Purchaser, subject only to the Permitted Exceptions (as hereafter defined), with full
extended coverage over all general title exceptions contained in such policies. The Owner's Policy
shall include the following endorsements: access zoning 3.1 and contiguity at Purchaser's expense.
4.2 Survey. Within fifteen (15) days after the Effective Date, Seller, at Seller's
sole cost and expense, shall deliver or cause to be delivered to Purchaser or Purchaser's attorney a
survey of the Land and Improvements meeting the 2011 Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys, including Table A items 1, 2, 3, 4, 6(b), 7(a), 7(b)(1), 8, 9, 11(a)
and 21 (with insurance limits of not less than $1,000,000 per occurrence) prepared by a land surveyor
duly licensed in the State of Illinois , dated after the Effective Date, and certified to Purchaser, the
Title Company and Purchaser's lender, if any (the "Survey").
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4.3 Title Defects. Purchaser shall notify Seller in writing prior to the expiration
of the Investigation Period if the Title Commitment discloses exceptions or the Survey reflects
matters which are unacceptable to Purchaser (each a "Title Defect"). If Purchaser does not so notify
Seller in writing within said time, then Purchaser shall be deemed to have accepted the Title
Commitment and Survey subject to any matters or exceptions contained therein and any exceptions
or matters in the Title Commitment or Survey to which Purchaser does not object shall be the
"Permitted Exceptions". If Purchaser does so notify Seller within said time, Seller shall have five
(5) days from the Seller's receipt of such notice to have such Title Defects removed from the Title
Commitment and/or Survey, as applicable, or to have the Title Company commit to insure against
loss or damage that may be occasioned by such Title Defects, by endorsement in form that is
acceptable to Purchaser. If Seller fails to have the Title Defects removed, or in the alternative, to
obtain title insurance over such Title Defects within the specified time, Purchaser may terminate this
Agreement upon written notice to Seller within five (5) days after the expiration of the above -
referenced five (5) day period, in which case the Earnest Money shall be promptly returned to
Purchaser. If Purchaser fails to terminate this Agreement within said time, Purchaser shall be
deemed to have elected to take title as it then is and any Title Defects which Seller has not removed,
corrected or obtained title insurance over shall be included in the definition of Permitted Exceptions.
Notwithstanding anything contained herein to the contrary, at or before the Closing, Seller shall
cause any and all exceptions listed in Schedule B of the Title Commitment that are mortgages,
judgments, delinquent taxes, mechanic's liens or other liens or encumbrances of a definite, liquidated
or ascertainable amount to be removed from the Title Commitment and the Title Policy, and Seller
shall also furnish all documents, materials and information (such as, but not limited to, authorizing
resolutions, good standing certificates, affidavits, lien waivers, sworn statements, and indemnities)
necessary to satisfy all requirements and cause the removal of all general exceptions and all other
customary exceptions raised in the Title Commitment, as well as any exceptions raised with respect
to "new construction" and similar matters (including, without limitation, any exceptions arising
from or related to construction performed, being performed or to be performed). If necessary, the
Closing Date shall be extended to allow for the expiration of the time periods described in this
Section 4.3.
5. CASUALTY AND CONDEMNATION.
5.1 Casualty. If, prior to the Closing, more than 10% of the leaseable square
footage of the Improvements are destroyed or damaged by fire or other casualty, Purchaser shall have
the option (to be exercised in the manner hereinafter provided) to terminate this Agreement, in which
event the Earnest Money shall be promptly returned to Purchaser. Seller agrees to give Purchaser
notice of any fire or other casualty within three (3) business days after any such event, and Purchaser
may exercise such option by delivering written notice to Seller within fifteen (15) days following
such notice. In the event Purchaser does not elect to terminate this Agreement as aforesaid, then
Purchaser shall be deemed to have elected to close the transaction contemplated hereby as scheduled
(except that if the Closing Date is less than fifteen (15) days following such notice, closing shall be
delayed until said fifteen (15) day period expires). If Purchaser elects not to terminate, or if the
damage is as to less than 10% of the leaseable square footage of the Improvements, then Purchaser
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shall close this transaction as scheduled and Seller shall assign and/or pay or credit to Purchaser at
Closing all insurance proceeds (and other related choses in action, if any) collected or claimed with
respect to said loss or damage plus any deductible or self-insured amount.
5.2 Condemnation. If, prior to the Closing, any judicial, administrative or other
proceeding relating to the proposed taking of all or any part of the Land or Improvements by
condemnation or eminent domain or any act in the nature of eminent domain is instituted or
threatened, Seller hereby agrees to furnish Purchaser written notification with respect to any such
proceeding or threatened proceeding within three (3) business days of Seller's learning of same, and
Purchaser shall have the option to terminate this Agreement by giving Seller written notice of such
termination within fifteen (15) days after receipt of written notification of any such proceeding or
threatened proceeding (except that if the Closing Date is less than fifteen (15) days following such
notice, Closing shall be delayed until said fifteen (15) day period expires). Purchaser's failure to
give such notice in such time shall be conclusive evidence that Purchaser has waived such option to
terminate. If such option to terminate is waived, Purchaser shall be credited (against the Purchase
Price) or assigned, at Closing, all Seller's rights to any proceeds or award for such taking. If
Purchaser elects to terminate this Agreement due to the institution of such proceeding, the Earnest
Money shall be returned to Purchaser.
6. CLOSING. The Closing shall occur at the Rolling Meadows office of the Title
Company on the Closing Date. On that date:
6.1 Possession. Seller shall deliver sole and exclusive possession of the Property
to the Purchaser, subject only to the rights of Tenants under the Leases.
6.2 Seller's Closing Documents. Seller shall execute and deliver the following
documents to Purchaser:
(a) the Deed, containing a legal description that coincides with the Title
Policy and Survey;
(b) Intentionally Omitted;
(c) an assignment of the Intangible Property, to the extent that such
Intangible Property is assignable, containing a warranty of Seller's title thereto, together with
the original warranties, guarantees and other documents constituting or evidencing the
Intangible Property;
(d) an ALTA Statement;
(e) a certification that Seller is not a "foreign person" as such term is
defined in the Internal Revenue Code and the Treasury Regulations promulgated thereunder;
(I) a closing statement;
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(g) applicable transfer tax declarations;
(h) A certificate certifying that as of the Closing, the representations and
warranties of Seller set forth in this Agreement are true and correct in all material respects;
and
(i) such other documents, instruments, certifications and confirmations
which Seller is specifically required to deliver to Purchaser pursuant to this Agreement or as
may be otherwise reasonably required in order to consummate this transaction.
6.3 Purchaser's Closing Documents. Purchaser shall execute and deliver the
following documents to Seller:
(a) a closing statement;
(b) an ALTA Statement;
(c) applicable transfer tax declarations; and
(d) such other documents, instruments, certifications and confirmations
which Purchaser is specifically required to deliver to Seller pursuant to this Agreement or as
may be otherwise reasonably required in order to consummate this transaction.
6.4 New York Style Closing. The transaction shall be closed by means of a
"New York Style" closing and Seller and Purchaser shall each provide any undertaking (the "Gap
Undertaking") to the Title Company necessary to effect the "New York Style" closing. Seller and
Purchaser shall each pay one half of the charges of the Title Company for such New York Style
Closing.
6.5 Seller's Closing Costs. Seller shall pay (a) all real estate transfer taxes which
are imposed by the State of Illinois, Cook County and Elk Grove Village, if any, (b) the premium for
the Owner's Policy, including the cost of extended coverage and any encroachment endorsements, if
applicable, (c) the charges for the Survey, and (d) one-half of the escrow closing fee charged by the
Title Company, and (e) one-half (1/2) of the cost of a new Phase I (contribution not to exceed
$1,500.00) and one-half (1/2) of the cost of new Phase II (contribution not to exceed $2,500.00), if
required pursuant to Section 3.5.
6.6 Purchaser's Closing Costs. Purchaser shall pay (a) the balance of the
Purchase Price, plus or minus prorations, due at Closing, (b) the cost to record the Deed, (c) one-half
of the escrow closing fee charged by the Title Company, (d) the cost of access, zoning 3.1 and
contiguity endorsements, and (e) the cost of a new Phase I (less the Seller's contribution) and the
cost of a new Phase II, if required (less the Seller's contribution).
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PRORATIONS AND ADJUSTMENTS.
7.1 Real Estate Taxes. Seller shall pay all taxes and assessments on the Property
due prior to the Closing Date, if any, including, without limitation, all special assessments. Unpaid
taxes and assessments on the Property, if any, shall be prorated on an accrual basis as of the Closing
Date based upon 105% of the most recent ascertainable full year tax bill.
7.2 Utilities. All charges for utility services (including electricity, natural gas,
water and sanitary sewer), shall be prorated as of the Closing Date. Seller shall be responsible for all
such expenses that accrue prior to the Closing Date and Purchaser shall be responsible for all such
expenses accruing on and after the Closing Date. To the extent reasonably possible, Seller and
Purchaser shall obtain billings and meter readings as of the Closing Date to aid in such prorations,
but if not possible, then such prorations shall be based upon estimates using the most recent actual
invoices.
7.3 Non -prorated Items. Seller shall terminate as of the Closing all insurance
policies, property management agreements, and any Service Contracts relating to the Property which
the parties have agreed will not be the obligation of Purchaser after Closing, and there shall be no
proration with respect to said items.
7.4 Other Items. All other items that are customarily prorated in transactions
similar to the transaction contemplated by this Agreement and that were not covered above will be
prorated as of midnight on the Closing Date, so that the Closing Date is a day of income and expense
to Purchaser. All prorations or computations made under this Section 7 at Closing shall be final.
8. REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS
PRECEDENT.
8.1 Seller's Representations and Warranties. Seller represents, warrants and
agrees, as of the Effective Date and as of the Closing that:
(a) Seller is duly organized and in good standing under the laws of the
state of its formation and is authorized to execute this Agreement and has full power and
authority to perform all of its obligations under this Agreement, including to execute and
deliver all required closing documents and the execution and delivery of this Agreement and
the consummation of the transactions contemplated do not violate any agreement to which
Seller is a party, and no other proceedings on Seller's part are necessary in order to permit
Seller to consummate the transaction contemplated hereby.
(b) This Agreement and all other documents delivered prior to or at the
Closing have been duly authorized, executed, and delivered by Seller, are binding obligations
of Seller and do not violate the provisions of any agreement to which Seller is a party or
which affects the Property.
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(c) There are no third party leases, tenancies or rights of occupancy or
possession affecting the Property.
(d) There are no existing, pending or threatened condemnations or sales in
lieu thereof involving the Seller or otherwise involving any aspect of the Property.
(e) There are no attachments, executions, assignments for the benefit of
creditors or voluntary or involuntary proceedings in bankruptcy pending against or
contemplated by Seller, and no such actions have been threatened against Seller.
(f) All of the Seller Deliveries are true and complete copies of those same
documents that are in Seller's possession or control and Seller has delivered all of the
documents comprising the Seller's Deliveries to Purchaser that are in Seller's possession or
control.
(g) There are no special assessments, special tax districts, special service
areas, or outstanding obligations (contingent or otherwise) to governmental entities
(including, without limitation, any portion payable with the current tax bill), being levied or
assessed against or otherwise affecting the Property or any part thereof, and, to the best of
Seller's knowledge, none of the foregoing are being contemplated.
(h) Neither Seller nor all or any portion of the Property are the subject of
any pending or threatened claim, or judicial or administrative proceeding, action or litigation.
(i) There are no service contracts, management agreements or other
contracts or agreements of any kind relating to the Property that will be binding on Purchaser
after the Closing and all the Service Contracts, if any, shall be canceled or otherwise
terminated by Seller at or before Closing, so that Purchaser shall have no liability for any
amounts due under the Service Contracts after the Closing Date,
0) Seller owns fee simple title to the Property and there are no conditions,
covenants, restrictions, laws, easements, servitudes or other encumbrances upon the Property
that will in any way limit, restrict or prohibit Purchaser's use of the Property for its current
use.
(k) Seller has no knowledge of and has received no notice that the
Property, the Improvements or the use thereof is in violation of any applicable laws, codes,
ordinances or government rules or regulations.
(1) No work has been performed or is in progress at the Property, and no
materials will have been delivered to the Property, that might provide the basis for a
mechanic's, materialmen's or other lien against the Property or any portion thereof, for which
effective title insurance will not at Closing be issued to Purchaser, and all amounts due for
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such work and material shall have been paid and all discharged to Purchaser's satisfaction as
of the Closing.
8.2 Environmental.
(a) Definitions:
(i) The term "Hazardous Materials" shall mean any substance,
material, waste, gas or particulate matter which is regulated by any local governmental
authority, the State of Illinois, or the United States Government, including, but not limited to,
any material or substance which is (i) defined as a "hazardous waste," "hazardous material,"
"hazardous substance," "extremely hazardous waste," or "restricted hazardous waste" under
any provision of Illinois law, (ii) petroleum, (iii) asbestos, (iv) polychlorinated biphenyl, (v)
radioactive material, (vi) designated as a "hazardous substance" pursuant to the Clean Water
Act ("CWA"), 33 USC § 1251, et seq, (vii) defined as a "hazardous waste" pursuant to the
Resource Conservation and Recovery Act ("RCRA"), 42 ILCS §6991, et seq.; or (viii)
defined as a defined as a "hazardous substance" pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 USC §
9601, el seq. The term "Environmental Laws" shall mean all statutes specifically described
in the foregoing grammatical sentence and all federal, state and local environmental, health
and safety statutes, ordinances, codes, rules, regulations, orders and decrees regulating,
relating to or imposing liability or standards concerning or in connection with Hazardous
Materials.
(ii) The term "Underground Storage Tank" shall mean, underground
storage tank as that term is defined in, plus all farm and residential tanks of any volume used
or formerly used for any purpose, heating oil tanks used for any purpose, septic tanks,
pipeline facilities, surface water impoundments, pits, ponds, lagoons, storm water and waste
water collection systems, flow-through process tanks, liquefied traps and associated
gathering lines used for any purpose, storage tanks in an underground area at or above the
surface of the ground, and those tanks used to contact listed or characteristics waste or solid
waste (as those terms are defined in RCRA).
(b) Environmental Representations. Seller represents, warrants and
agrees, as of the Effective Date and as of the Closing, that: (i) there are no known violations
of any Environmental Laws relating to the Property, including, but not limited to, failure to
possess necessary and required permits, approvals and governmental authorizations; (ii)
Seller has not generated, stored, treated, handled, processed or disposed of Hazardous
Materials on the Property; (iii) the Property is free of any Hazardous Materials that would
trigger a response or remedial action under any Environmental Laws or any existing common
law theory based on nuisance or strict liability; (iv) there are no Underground Storage Tanks
on the Property; (v) there has been no known release of Hazardous Materials on the Property;
(vi) there has been no known disposal of Hazardous Materials from the Property to an offsite
location; (vii) no notices relating to the Property have been received from any governmental
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agency relating to any way to the Environmental Laws; (viii) there have been no complaints
or threatened enforcement actions seeking reimbursement or damages involving claims of
personal injury, property damage and/or environmental clean-up liability under the
Environmental Laws, or similar notices under any health and safety statute code or ordinance
associated with lead paint, mold, asbestos or sick building syndrome relating to the Property;
(ix) Seller has disclosed all.documents, writings and relevant information within Seller's
knowledge, possession and control involving the environmental condition of the Property
and its compliance with the Environmental Laws.
(c) Effect of Breach. If any representation set forth in Section 8.2(b)
above is in any manner inaccurate or any such warranty is in any manner breached
(collectively, a "Breach"), and if such Breach gives rise to or results in liability (including,
but not limited to, a response action, remedial action or removal action) under any
Environmental Laws or any existing common law theory base on nuisance or strict liability,
or causes a significant effect on public health, Seller shall promptly take any and all remedial
and removal action as required by law to clean up the Property, mitigate exposure to liability
arising from, and keep the Property free of any lien imposed pursuant to, any Environmental
Laws as a result of such Breach. The foregoing representations and warranties shall survive
the closing and shall not be merged with or into the delivery of the Deed and other
instruments of conveyance and transfer.
(d) Indemnification. Additionally, but not in lieu of Seller's affirmative
undertakings set forth in Section 8.2(c) above, Seller agrees to and shall indemnify, protect,
defend (with counsel, acceptable to Purchaser), and hold harmless Purchaser, and its
successors and assigns, from and against any and all debts, liens, causes of action,
administrative orders and notices, costs (including, without limitation, response and/or
remedial costs), personal injuries, losses, damages, liabilities, demands, interest, fines,
penalties and expenses, including reasonable attorney's fees and expenses, consultants' fee
and expenses, court costs and all other out-of-pocket expenses, suffered or incurred by
Purchaser and its grantees as a result of (a) any Breach, or (b) any matter, condition or state
of fact involving Environmental Laws or Hazardous Materials which existed on or arose
prior to the Closing date and which failed to comply with (i) the Environmental Laws in
effect as of the Closing date or (ii) any existing common law theory based on nuisance or
strict liability in existence as of the Closing date, regardless of whether or not Seller had
knowledge of same as of the Closing date. The foregoing indemnity shall survive the closing
and shall not be merged with or into the delivery of the Deed and other instruments of
conveyance and transfer.
8.3 Survival. The representations, warranties, covenants and indemnifications set
forth in this Section 8 shall survive the Closing and shall not be merged with or into the delivery or
recording of the Deed and other instruments of conveyance and transfer for a period of twelve (12)
months after the Closing Date.
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8.4 Seller's Covenants. From the Effective Date until the earlier to occur of the
Closing or a termination of this Agreement:
(a) Seller shall not enter into any leases, licenses or other occupancy
agreements affecting the Property.
(b) Seller shall maintain the Land, Improvements and Personal Property in
substantially the same condition as of the Effective Date and in compliance with all
applicable laws, codes, statutes and governmental rules, regulations and requirements.
Except as necessary to comply with the preceding sentence, to effect restoration in cases of
emergency, to protect against personal injury or property damage, or to restore or repair any
casualty as provided in Section 5.1 hereof, Seller shall not make or permit any material
alterations to the Property without Purchaser's prior written consent, which consent shall not
be unreasonably withheld.
(c) Seller shall maintain in existence all permits, and shall not do or
permit anything to be done that will terminate or create any defenses to the performance
under any warranties or guarantees included as part of the Intangible Property.
(d) Seller shall not solicit offers, or negotiate the sale or refinancing of any
of the Property with any other party, provided, however, that Seller may continue to list the
Property for sale so long as such listing indicates that the Property is under contract.
(e) Seller shall not enter into any contracts affecting the Property, unless
the contract can be terminated by Purchaser at Closing without penalty.
(f) After the Effective Date, Seller shall promptly advise Purchaser in
writing of any facts known to Seller indicating any material inaccuracy of any of the
representations and warranties contained in Section 8 of this Agreement and shall promptly
give to Purchaser copies of any written notices which Seller receives concerning the
Property.
8.5 Conditions Precedent. Purchaser's obligation to close on the purchase of the
Property is conditioned on the following:
(a) Seller shall have performed all of the covenants and obligations to be
performed by Seller under this Agreement at or before the Closing.
(b) The representations and warranties of Seller set forth in this
Agreement shall be true as of the Closing Date.
(c) Title Company being prepared to issue the Title Policy on the Closing
Date, subject only to the Permitted Exceptions.
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(d) Purchaser's receipt of the Seller's duly authorized and board approved
resolutions permitting the addition of one (1) additional truck dock parallel to the current
dock accessing Criss Circle. The construction of the dock shall be permitted at any time after
Closing and shall be grandfathered into any future changes in the Village Code. The board
approved resolution may be contingent upon Purchaser closing on the Property
(e) Purchaser's receipt of Seller's duly authorized and board approved
resolution approving a Class 6b tax incentive for the Property along with all other required
approvals for such incentive. All such approvals must be satisfactory to Purchaser. The
board approved resolution may be contingent upon Purchaser closing on the Property.
If one or more of the conditions set forth above in this Section 8.5 has not been satisfied as of the
Closing Date, then Purchaser may, in its sole discretion, terminate this Agreement by delivering
written notice of such termination to Seller at any time on or before the Closing Date, in which case,
the Earnest Money shall be promptly returned to Purchaser and neither party shall have any further
rights or obligations hereunder, except that if the failure to satisfy any such condition is due to a
breach or default by Seller of any of its covenants, agreements, representations, warranties or other
obligations hereunder, then the provisions of Section 9.1 shall apply. At any time or times,
Purchaser may elect to waive in writing the benefit of any of the conditions set forth in this Section
8.5. Purchaser shall not be deemed to have waived any such condition, unless such waiver is set
forth in a written document signed by Purchaser or its agent, and then only to the extent expressly set
forth in such writing.
9. DEFAULT AND REMEDIES.
9.1 Seller Default. If Seller, before the Closing, breaches any of its
representations or warranties under this Agreement, or defaults in the performance of any of its
obligations under this Agreement and said default is not cured within ten (10) days of Seller's receipt
of written notice from Purchaser, Purchaser may elect to: (a) terminate this Agreement by giving
written notice of same to Seller, in which case the Earnest Money shall be returned to Purchaser, and
this Agreement shall become null and void and neither party shall have any further liability to the
other; (b) proceed to close this transaction notwithstanding such breach, default or nonperformance,
thereby waiving any and all claims arising as a result of such breach, default or nonperformance; or
(c) elect to enforce the terms of this Agreement by an action for specific performance. The foregoing
shall be Purchaser's sole and exclusive remedies at law and in equity; provided that if the remedy of
specific performance is not available to Purchaser due to the actions of Seller, Purchaser's rights and
remedies shall not be limited in any way. If Purchaser is entitled to a return of the Earnest Money
pursuant to any provision of this Agreement, then Seller shall promptly execute and deliver to the
Title Company a written notice authorizing and directing the Title Company to immediately disburse
the Earnest Money to or as directed by Purchaser or its representative. Seller's obligations under the
immediately preceding sentence shall survive any termination of this Agreement.
9.2 Purchaser Default. If Purchaser defaults in the performance of any of its
obligations under this Agreement and said default is not cured within ten (10) days of Purchaser's
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receipt of written notice from Seller, Seller, as its sole and exclusive remedy at law and in equity,
shall be entitled to terminate this Agreement and retain the Earnest Money as liquidated damages, the
parties being in agreement that Seller's actual damages will be difficult to ascertain.
9.3 Breach of Obligations, Warranties or Representations. Notwithstanding
anything contained herein to the contrary: (a) in the event of any breach by Seller of a covenant or
obligation to be performed or observed after the Closing, or a breach or default by Seller of a
representation, warranty, covenant or obligation that survives the Closing, Purchaser shall be entitled
to any and all rights and remedies available at law or in equity; and (b) in the event of any default by
Purchaser of a covenant or obligation to be performed or observed after the Closing, or a breach or
default by Purchaser of a representation, warranty, covenant or obligation that survives the Closing,
Seller shall be entitled to any and all rights and remedies available at law or in equity.
10. ASSIGNMENT. This Agreement and the terms and provisions hereof shall inure to
the benefit of and be binding upon the parties hereto and their successors and assigns. Purchaser
may transfer or assign its rights and obligations under this Agreement without the prior written
consent of the Seller and assign at any time and from time to time, in whole or in part, the rights and
obligations of Purchaser under this Agreement to a Purchaser's Entity or any other non-affiliated
Purchaser's Entity and upon any such assignment, the original Purchaser shall be released from all
liabilities and obligations under this Agreement. Seller may not transfer or assign its rights and
obligations under this Agreement without the prior written consent of the Purchaser, which may be
withheld in its sole discretion.
11. BROKERAGE. Seller hereby represents and warrants to Purchaser that Seller has
not dealt with any broker or finder in respect to the transaction contemplated hereby except for Tom
Curtis of Avison Young ("Broker") whose commission shall be paid by Seller pursuant to a separate
agreement between Seller and Broker. Seller hereby agrees to indemnify Purchaser for any claim for
brokerage commission or finder's fee asserted by any person, firm or corporation claiming to have
been engaged by Seller, including without limitation Broker. Purchaser hereby represents and
warrants to Seller that Purchaser has not dealt with any broker or finder in respect to the transaction
contemplated hereby except for Broker. Purchaser hereby agrees to indemnify Seller for any claim
for brokerage commission or finder's fee asserted by any person, firm or corporation claiming to
have been engaged by Purchaser, other than Broker.
12. MISCELLANEOUS.
12.1 Entire Agreement. This Agreement contains the entire agreement between
the parties respecting the matters herein set forth and supersedes all prior agreements, oral or written,
between the parties hereto respecting such matters.
12.2 Headings. The headings in this Agreement are for convenience only and shall
not be used in interpreting any of the provisions of this Agreement.
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12.3 Construction. This Agreement shall not be construed more strictly against
one party than against the other party merely by virtue of the fact that it may have been prepared
primarily by counsel for one of the parties, it being recognized that both Purchaser and Seller have
contributed substantially and materially to the preparation of this Agreement.
12.4 No Waivers. The waiver by either party hereto of any condition or the breach
of any term, covenant or condition herein contained shall not be deemed to be a waiver of any other
condition or of any subsequent breach of the same or of any other term, covenant or condition herein
contained. Either party, in its sole discretion may waive any right conferred upon such party by this
Agreement, provided that such waiver shall only be made by giving the other party written notice
specifically describing the right waived.
12.5 Attorney's Fees. If either party obtains a judgment against the other party by
reason of a breach of this Agreement, a reasonable attorney's fee as fixed by the court shall be
included in such judgment.
12.6 Time of the Essence. The parties hereto agree that time is of the essence of
this Agreement.
12.7 Governing Law. This Agreement is made and executed under and in all
respects to be governed and construed by the laws of the State of Illinois and the parties hereto
hereby agree and consent and submit themselves to any court of competent jurisdiction situated in
the City of Chicago, Illinois.
12.8 Severability. Any provision of this Agreement which is unenforceable or is
invalid or contrary to the law of the State of Illinois shall be of no effect and in such case, all the
remaining terms and provisions of this Agreement shall be fully effective according to the tenor of
this Agreement, the same as though no such invalid portion had ever been included.
12.9 Section 1031 Exchange. Seller or Purchaser, at any time prior to the Closing
Date, may elect to effect a simultaneous or non -simultaneous tax-deferred exchange pursuant to
Section 1031, and the regulations pertaining thereto, of the Internal Revenue Code, as amended.
Seller and Purchaser expressly agree to cooperate with each other in connection with any such
exchange in any manner which shall not impose any additional cost or liability upon the other party,
including without limitation by executing any and all reasonable and customary documents,
including escrow instructions or agreements consenting to the assignment of the rights and
obligations of Seller or Purchaser hereunder to an exchange entity, which may be necessary to carry
out such an exchange; provided, however, that Purchaser shall not be required to take title to any
property in order to accommodate Seller in effecting the exchange; and provided further, however,
that such election to effect such an exchange shall not delay the Closing Date.
12.10 Counterparts; Electronic Signatures. This Agreement maybe executed in
multiple counterparts, each of which shall be deemed to be an original and all of which shall
constitute one and the same instrument. Also, the parties hereto acknowledge and agree that they
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shall be bound to the terms and conditions of this Agreement by facsimile or emails signatures,
which shall have the same force and effect as original signatures.
12.11 Time For Performance. Whenever under the terms of this Agreement the
time for performance falls on a Saturday, Sunday, or Legal Holiday (as defined in 205 ILCS 630/17)
such time for performance will be on the next day that is not a Saturday, Sunday or Legal Holiday.
In counting any period of time pursuant to this Agreement, the day of the act or event from which the
designated period of time begins to run will not be included.
12.12 OFAC. Each of Seller and Purchaser represents to the other that, to the best
of their knowledge, it is not named on any list of persons, entities and governments issued by the
Office of Foreign Assets Control of the United States Department of Treasury ("OFAC") pursuant to
Executive Order 13224 — Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten To Commit or Support Terrorism, as in effect on the date hereof, or any similar
list issued by OFAC or any other department or agency of the United States (collectively, "OFAC
Lists"), or included in, owned by, controlled by, acting for or on behalf of, providing assistance,
support, sponsorship, or services of any kind to; or otherwise associated with any persons or entities
referred to or described in any OFAC Lists.
12.13 Notices. Any notice or demand which either party hereto is required or may
desire to give or deliver to or make upon the other party shall be in writing and may be given by: (a)
personal delivery, (b) overnight courier such as Federal Express, (c) United States registered or
certified mail, return receipt requested, (d) facsimile transmission, or (e) email transmission,
addressed as follows (subject to the right of either party to designate a different address for itself by
notice similarly given):
To Seller: Village of Elk Grove Village
901 Wellington Avenue
Elk Grove Village, IL 60007
Attn: Matt Roan, Deputy Village Manager
Fax: 847.357.4022
Email: mroan@elkgrove.org
with a copy to: Elk Grove Village
901 Wellington Avenue
Elk Grove Village, Illinois 60007
Attn: George Knickerbocker, Village Attorney
Fax: 847.357.4022
Email: gknickerbocker@elkgrove.org
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To Purchaser: c/o Hoogland Properties, LLC
225 S. Bond Street
Elk Grove Village, Illinois 60007
Attn: Radoslaw Zukowski
Email: roddy@diamondscreen.net
with a copy to: Arnstein & Lehr LLP
120 South Riverside Plaza, Suite 1200
Chicago, Illinois 60606
Attn: Robert J. Taylor
Email: rjtaylor@amstein.com
Attn: Jeremy T. Waitzman
Email: jtwaitzman@amstein.com
Any notice or demand so given shall be deemed to be delivered or made on the next business day if
sent by overnight courier, on the third business day after the same is deposited in the United States
Mail as registered or certified matter, with postage thereon fully prepaid, or on the date of
transmission if given by personal delivery or sent by fax or email.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the Effective Date.
SELLER:
VILLAGE OF ELK GROVE VILLAGE
By: Craig B. Johnson
Name: Crai> B. Johnson
Its: Mayor
PURCHASER:
HOOGLAND PROPERTIES, LLC
an Illinois limited liability company
By: �<
Name:�L���S�
Title:
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EXHIBIT A
LEGAL DESCRIPTION
(TO COME)
Permanent Index Numbers: 08-22-102-153-0000
08-22-102-154-0000
08-22-102-155-0000
Common Address: 321 Bond Street, Elk Grove Village, Illinois
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