Ordinance 2007-104 STATE OF ILLINOIS )
)ss
COUNTY OF KENDALL )
ORDINANCE NO. 2007- 10`{
ORDINANCE TO ACQUIRE REAL ESTATE FOR THE PURPOSE OF EXPANDING
THE CITY'S RECREATIONAL PARKS AREA
WHEREAS, the United City of Yorkville, Kendall County, Illinois is a municipal
corporation of the State of Illinois authorized to purchase, establish and maintain public parks
for the use and benefit of the inhabitants of the City pursuant to section 11 -98 -1 of the Illinois
Municipal Code; and
WHEREAS, the owners of certain real estate consisting of approximately 6.24 acres,
(desires to convey to the City said Subject Property the "Subject Property ") for use as a public
park at a purchase price substantially less than the appraised value thereof; and
WHEREAS, the City desires to acquire the "Subject Property" for the purpose of
expanding its recreational park area thereby enhancing the wealth, welfare and improvement to
the lifestyle of its citizens.
NOW, THEREFORE, be it resolved by the Mayor and City Council of the United City of
Yorkville, Kendall County, Illinois as follows:
SECTION 1. The Agreement for the Purchase and Sale of Real Estate by and between
the City and Ronald William Clark, Jr., Richard Hopkins Clark and Sharon Clark Gaskill
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(collectively, the "Sellers ") as presented to this meeting of the City Council and attached
hereto as Exhibit A is hereby approved.
SECTION 2. The Mayor and City Cleric are hereby authorized to execute said
Agreement and hereby directed, along with the City Attorney, City Treasurer and City
Administrator, to undertake any and all actions as may be required to implement all of its
terms.
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SECTION 3. The Ordinance shall be effective upon its passage, approval and as
otherwise provided by law.
ROBYN SUTCLIFF JOSEPH BESCO
ARDEN JOE PLOCHER WALLY WERDERICH v,
GARY GOLINSKI MARTY MUNNS�
ROSE SPEARS JASON LESLIE l
Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this
� day of , A.D. 2007.
44 OR V9Q TEv(
Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this
\ day of , A.D. 2007.
ATTEST: 0 � 7"
- DE Pu T Y CITY CLERK
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AGREEMENT FOR PURCHASE AND SALE OF REAL ESTATE
THIS AGREEMENT for the purchase and sale of real estate (the "Agreement "), is
entered into as of aY-i Kra 18 , 2007, by and between Ronald William Clark, Jr., Richard
Hopkins Clark and Sharon Clark Gaskill (the "Sellers ") and the United City of Yorkville, Illinois
(the "Purchaser ").
WITNESSETH
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WHEREAS, Sellers are the owner of the property (as defined below); and
WHEREAS, Purchaser desires to purchase from Sellers and Sellers desire to sell to
Purchaser all of the property on the terms and conditions set forth below.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE 1
AGREEMENT TO PURCHASE AND SELL
1.1 Subject Properly, Subject to Section 1.2 below, Sellers agree to sell and convey
to Purchaser, and Purchaser agrees to purchase from Seller, upon the terms and conditions set
forth in this Agreement, Sellers' rights, title and interest in and to the property legally described
on Exhibit A attached hereto and made a part hereof, without the improvements thereon
(collectively, the "Subject Property"), generally consisting of approximately 4.34 acres of real
property currently improved with a single family residential structure and accessory structure(s)
if any, all being located at the southeast corner of Main Street and Route 47 in the United City of
Yorkville, Illinois. Prior to the transfer of possession to the Purchaser, the Sellers shall demolish
all improvements as provided in Section 2.6 below. The Subject Property consists of three
parcels of land identified by the following tax property index numbers:
Parcel 1: PIN 02 -33- 108 -001;
Parcel 2: PIN 02 -33- 108 -004;
Parcel 3: PIN 02- 33- 108 -005,
In the event of any conflict or discrepancy between the general descriptions of the
Subject Property in this paragraph and the legal description, the legal description shall govern,
1.2 Title. Sellers shall convey to Purchaser upon payment in full of the Purchase
Price as established in Section 2.1 below (the "Closing "), Sellers' rights, title and interest in and
to the Subject Property, together with all privileges, rights, easements, hereditaments, and
appurtenances belonging to the Subject Property, except that a life estate and possession shall be
reserved for the life of Seller, Ronald William Clark, Jr.. Said life estate shall terminate upon the
earlier of (i) the death of Seller, Ronald William Clark, Jr., (ii) Seller, Ronald William Clark, Jr.'s
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written notice to Purchaser of his surrender of the life estate, or (iii) Seller, Ronald William
Clark, Jr.'s abandonment of possession of the Subject Property for at least 60 continuous days,
1.3 Future Uses of the Subject Property. It is intended by the parties that after the
termination or expiration of Ronald William Clark, Jr.'s life estate, the Subject Property will. be
maintained predominantly as open space and be put to recreational, educational, or other public
open space purposes. The Parties agree that the Subject Property shall be known as Hopkins
Park, honoring Sellers' great - grandfather. Sellers shall deliver to Purchaser at Closing, a
warranty deed that will contain a restrictive covenant limiting the use of the Subject Property
after the termination or expiration of Ronald William Clark, Jr.'s life estate, to park use, open
space.
1.4 Possession. Possession of the Property shall be delivered to the Purchaser upon
the earlier of (i) the death of Seller, Ronald William Clark, Jr., (ii) Seller, Ronald William Clark,
Jr.'s written notice to Purchaser of his surrender of the life estate, or (iii) Seller, Ronald William
Clark, Jr.'s abandonment of possession of the Subject Property for at least 60 continuous days
and the demolition of all improvements thereon as provided in Section 2.6 below.
ARTICLE 2
PURCHASE PRICE
2.1 Purchase Price. The purchase price (the "Purchase Price ") to be paid by the
Purchaser to Sellers for the Subject Property described below is $550,000.00. The Parties have
agreed to the following payment schedule as defined in Section 2.5 of this Agreement.
2.2 Earnest Money. None.
2.3 Closing Costs. The Purchaser shall pay all closing costs associated with the
execution of this Agreement including but not limited to the following: Title Policy; Survey (as
defined below); any transfer taxes or stamps; recording charges; Title Endorsement; escrow fees;
and all other fees in connection with the Closing. However, each party shall pay its own legal
fees.
24 Closing Prorations and Adjustments. All items of income or expense, including
taxes and assessments, shall be prorated as of the date of the Closing. Closing prorations and
adjustments shall be payable by credits to Purchaser at Closing.
2.5 Payment of Purchase Price. The Purchase price shall be payable in installments,
as follows:
Installment 1 - Within 30 days of proof of good title: $100,000.00;
Installment 2 - on or before June 1, 2008: $100,000.00;
Installment 3 - on or before June 1, 2009: $100,000.00;
Installment 4 - on or before June 1, 2010: $125,000.00;
Installment 5 - on or before June 1, 2011: $125,000.00,
plus or minus prorations, if possession has been conveyed to the Purchaser or
upon delivery of possession.
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Purchaser may pre -pay, without penalty, all or part of any installment, or the entire unpaid
Purchase Price at any time prior to any due date.
2.6 Demolition of Improvements to Subject Property. Sellers agree to have the
improvements demolished and all foundations removed in accordance with all state and United
City of Yorkville standards, and the site properly graded, at sellers' sole expense, within six (6)
months after the expiration of Ronald William Clark, Jr.'s life estate.
2.7 Charitable Contribution. The parties to this contract agree that the value of the
Subject Property as recently appraised by Sellers is greater than the Purchase Price, and that the
difference between the fair market value of the Subject Property and the Purchase Price will be
claimed by Sellers as a charitable contribution. Purchaser does not guarantee the qualification of
any charitable contribution for purposes of any income tax benefits to Seller under the Internal
Revenue Code of 1986, as amended, but agrees to cooperate with Sellers, and execute any forms
or statements presented by Sellers that memorialize any terms or aspects of this transaction.
ARTICLE 3
TITLE INSURANCE AND SURVEY
3.1 Title Commitment. Within twenty (20) days after the execution of this Agreement
(the "Effective Date "), Seller shall deliver to purchaser: (a) a survey of the Subject Property (the
"Survey "); and, (b) a commitment for Title Insurance in the amount of the Purchase Price.
3.2 Title and Survey Objections. Within twenty (20) days after Purchaser receives the
Title Commitment, the Title Documents, and the Survey, Purchaser shall deliver to Sellers: (a) a
list of any objections to title and survey matters with respect to the Subject Property (the "Title
Objections "); and the manner in which such Title Objections may be cured to Purchaser's
satisfaction; and (b) a list of those endorsements that Purchaser requires be included as part of
the Title Policy (the "Title Endorsements "). Sellers shall be obligated to cause any Title
Objections relating to financing liens, mechanic's, materialmen's or similar liens, tax liens or
delinquent taxes, and leases or other occupancy rights or agreements to be deleted from the Title
Commitment prior to the Closing, and if Sellers fail to do so, Purchaser may, in addition to all
other rights and remedies, deduct from the Purchase Price any liens or encumbrances of a
definite or ascertainable amount. Within ten (10) days after Sellers receive the Title Objections,
Sellers shall notify Purchaser in writing of any Title Objections which Sellers either refuse to
cure or are unable to cure in the manner specified in Purchaser's notice, provided that Sellers
shall be obligated to cure the Title Objections described in the immediately preceding sentence.
In addition, notwithstanding anything contained herein to the contrary, at the Closing, Sellers
shall pay all Taxes assessed against the Subject Property which are due and payable to the date
of the Closing. Sellers shall be deemed to have agreed to cure, in the manner specified in
Purchaser's notice, any Title Objections which are not described in Sellers' notice, and all such
Title Objections shall be cured by Sellers prior to the Closing in the manner specified in
Purchaser's notice. If Sellers fail to deliver any such notice within said 10 -day period, Sellers
shall be deemed to have agreed to cure all Title Objections in the manner specified in
Purchaser's notice, at or before the Closing. Purchaser shall have the right, by giving notice to
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Sellers within ten (10) Business Days after Purchaser is notified by Sellers of their refusal or
inability to cure any one or more of the Title Objections in the manner specified in Purchaser's
notice, to: (i) terminate this Agreement, or (ii) elect to proceed pursuant to this Agreement,
thereby waiving its objection to such Title Objections described in Sellers' notice, but with the
right to deduct from the Purchase Price any liens or encumbrances of a definite or ascertainable
amount. For purposes of this Agreement, the term "Permitted Exceptions" means Q) title matters
that are disclosed by the Title Commitment and are not identified by Purchaser as Title
Objections, and (ii) any Title Objections waived by Purchaser as provided above. If Purchaser
terminates this Agreement pursuant to this Section 3.2, then neither parry shall have any further
rights or obligations under this Agreement, except for those rights and obligations that expressly,_
survive a termination of this Agreement.
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ARTICLE 4
COVENANTS, REPRESENTATIONS AND WARRANTIES
4.1 Representations. Sellers (and any persons executing this instrument on behalf of
Sellers) represent and warrant that Sellers are the owners in fee simple of the Subject Property,
that Sellers are fully authorized and empowered to execute and deliver this instrument, and that
there is no lien, encumbrance, contract or governmental prohibition against the execution and
delivery of this instrument and the performance by Sellers of all of Sellers' obligations
hereunder. Purchaser (and any persons executing this instrument on behalf of Purchaser)
represents and warrants that Purchaser is fully authorized and empowered to execute and deliver
this instrument, and undertake the performance and enforcement of this instrument and the
obligations hereunder. Purchaser agrees to take all steps necessary to appropriate or budget
funds necessary to make the installment payments under this Agreement.
4.2 Agreements. Neither the execution and the delivery of this Agreement by each
party, nor the consummation of the transactions contemplated hereby will result in any breach or
violation of or default under any judgment, decree, order, law, mortgage, lease, agreement,
indenture or other instrument to which such party is a party or by which the Subject Property or
such party is bound.
4.3 No Conveyances or Further Liens. From and after the execution of this
Agreement, Sellers shall not: (i) cause, suffer or permit any act which results in any additional
exceptions to title affecting the Subject Property or any portion thereof, (ii) sell transfer, alienate,
lease or encumber any part of the Subject Property or any interest therein to or in favor of any
person or entity other than the Purchaser, or (iii) take any action that would alter any of the
matters depicted, or create additionally matters not depicted, on the Survey.
4.4 Litigation. Each party represents to the other that they are aware of no pending
litigation, proceeding, claim or investigation, including, without limitation, any condemnation
proceeding, pending or to the best of their knowledge, threatened, which affects or could
reasonably be expected to affect them, the Subject Property, the transactions contemplated by
this Agreement, or the other party's intended use of the Subject Property.
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4. S Inconsistent Actions. Sellers and Buyer shall not take any actions that are
inconsistent with their obligations under this Agreement, or that may delay or interfere with the
consummation of the transactions contemplated by this Agreement.
4.6 Surviving Agreements. There are no unrecorded leases, contracts, agreements, or
other documents affecting the Subject Property that will survive the closing and be binding upon
Purchaser of the Subject Property.
ARTICLE 5
THE CLOSING
5.1 Closing.
(a) If the title commitment displays good title, subject only to permitted exceptions,
then, within thirty (30) days thereafter or if the provisions of Section 5.1(b) are applicable and
Purchaser is obligated to take title or elects to take title (as the case may be), then Purchaser will
pay to Sellers the payments as specified in Paragraph 2.5.
(b) If the title commitment discloses unpermitted exceptions, Sellers shall have 30
days from the date of delivery of the title commitment to remove, correct or have the title insurer
commit to insure against loss or damage that may be occasioned by the exceptions.
(c) Sellers warrant that no party in possession, no contractor who has furnished labor
or materials, and no other person has any right, title, interest, lien, claim or charge against the
property
(d) This Agreement has been executed in two duplicate originals by the parties. This
Agreement, however, will not confer any legal or equitable estate or interest in the property on
the Purchaser until the Purchaser has fully performed this Agreement.
(e) Sellers warrant that no notice from any city, village or other governmental
authority of a dwelling code violation had been received by the contract seller, or their principal
or agent, within 5 years of the date of this installment contract.
(fl Sellers shall be responsible for all real estate taxes on the subject property until
the final closing.
(g) The Closing shall take place on the earlier of (i) payment in full by the Purchaser
and receipt of possession or (ii) June 1', 2011, if payment of the Purchase Price in full has been
made and possession has been delivered to the Purchaser and pursuant to paragraph 2.5.
5.2 Conveyance to Purchaser. Pursuant to this contract at the Closing, Purchaser will
be entitled to receive a warranty deed to the property.
5.3 Seller Remedies.
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A. If Purchaser fails to discharge or pay any claim which may ripen
mechanic's lien or tax lien against the property, then Sellers may, without any obligation to do
so, discharge any tax lien or mechanic's lien affecting the property without any obligation to
examine or inquire into the legality or validity of any matter. Purchaser agrees to repay Sellers
immediately on demand, together with interest at the rate of 10 %, all of which expenditure and
interest will be added to and become a part of the purchase price. Purchaser will have the right
to contest any lien of this nature, in which event seller will only have the right to require
Purchaser to post reasonable security, and will only pay out against this security on entry or
judgment enforcing the lien.
B. If Purchaser fails to make any part of the payments at the time and in the manner
specified, or to perform any covenant of this contract, and if the failure or default continues for a
period of 30 days after notice of the failure or default to Purchaser, then all payments made by or
on behalf of buyer to payee under this Agreement may be forfeited in satisfaction of the damage
sustained. Sellers will have the right to reenter and take possession of the property. No transferee
of Purchaser's interest will be entitled to notice unless the name and address has been furnished
to Sellers in writing. The notice of forfeiture, addressed to Purchaser or to Purchaser's transferee
entitled to notice, first class postage prepaid, registered or certified mail, return receipt requested,
will take effect on mailing. The affidavit of Sellers, Purchaser or to the Purchaser's City
Attorney, that this notice was mailed will be conclusive evidence of that fact. The affidavit may
be filed in the Recorder's Office of Kendall County, Illinois. If filed, it will be conclusive
evidence in favor of any bona fide purchaser of the property that all of Purchaser's rights under
this Agreement have been properly extinguished. Forfeiture will terminate all rights of Purchaser
in the Subject Property and all rights of persons claiming under Purchaser, including all right to
possession of the Subject Property. Sellers may reenter and take possession of the Subject
Property or may maintain suit for forcible entry and detainer or other suit for possession without
notice or demand under Illinois law. All notices and demands are waived by Purchaser and all
others claiming under Purchaser.
If it appears Purchaser has given up possession of the Subject Property, either voluntarily
or pursuant to a judgment in forcible detainer, any bona fide Purchaser of the Subject Property
may conclusively presume that all right, title and interest of Purchaser has ceased. All
improvements erected by Purchaser on the Subject Property will remain on the property as the
Subject Property of Sellers without compensation for it on forfeiture. The remedy of forfeiture
will not be exclusive and Sellers may pursue any other legal or equitable remedy.
5.4 Purchaser's Deliverables. At the Closing, Purchaser shall deliver or cause to be
delivered to Sellers directly or, if either party elects, through an Escrow, the following, each of
which shall be in a form reasonably satisfactory to Seller and (if applicable) the Title Insurer:
(a) A certified copy of Purchaser's ordinance (if required) authorizing this
Agreement.
(b) Such other certificates and documents as may be required by the Title Insurer;
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(c) Final Installment of Purchase Price as defined in Article 2.5 of this Agreement.
5.5 Documents to Be Jointly Delivered By Sellers and Purchaser At Closing, At the
closing, Sellers and Purchaser shall each execute and deliver, directly, or if either parry elects,
through the Escrow, the following, each of which shall be in the form reasonably satisfactory to
both parties and (if applicable) the Title insurer.
(a) Applicable transfer tax declarations for the State of Illinois, Kendall county and
necessary municipal transfer declarations;
(b) A Closing Statement;
(c) ALTA Statements as required by the Title Insurer; and
(d) All other instruments and documents as may be reasonably required in order to
carry out the purposes of this Agreement and to consummate the Closing under this Agreement.
ARTICLE 6
DEFAULTS AND REMEDIES
61 Default. In addition to the remedies for Sellers set forth in Section 5.3, If the
transaction contemplated hereby does not close by reason of a default by either party in any of
the terms hereof, and any such default is not cured within thirty (30) days after written notice of
said default is given by the other party, then the non-breaching party may: (a) terminate this
Agreement and (b) pursue an action against the breaching party for all remedies available in law
and/or equity, including specific performance of the Agreement.
62 Costs Of Enforcement. In the event any action or proceeding is brought by either
party to enforce or interpret the terms of this Agreement, the prevailing party in such action or
proceeding shall be entitled to have all costs, fees (including, without limitation, reasonable
attorneys' fees) and expenses, paid or reimbursed by the non - prevailing party.
ARTICLE 7
MISCELLANEOUS
73 Entire Agreement; Construction. This Agreement embodies the entire
understanding of the parties and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter hereof except as may
be set forth in writing executed by both parties contemporaneously with or subsequent to this
Agreement. This Agreement may not be construed more strictly against one party hereto 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 is understood and recognized that both parties have contributed
substantially and materially to the preparation of this Agreement.
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72 Severability. If any term of this Agreement or any application thereof shall be
invalid or unenforceable, the remainder of this Agreement and other applications thereof shall
not be affected thereby.
7.3 Governing Law. This Agreement has been executed and delivered, and is to be
performed, in the State of Illinois, and this Agreement and all rights, obligations, liabilities
hereunder shall be governed by, and construed in accordance with, the internal laws of the State
of Illinois. Venue, for purposed of this Agreement, shall be Kendall County, Illinois.
7.4 Time Is Of The Essence. Time is of the essence of this Agreement.
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7.5 Waiver. No waiver by a party of any breach of this Agreement or any warranty or
representation hereunder by the other party shall be deemed to be a waiver of any other breach
by such other party and no acceptance of payment or performance by a party after any breach by
the other party shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder by such other party whether or not the first party knows of
such breach at the time it accepts such payment or development.
7.6 Condemnation. The parties agree that in the event any portion of the subject
property is taken for eminent domain, all proceeds derived from the condemnation action shall
belong to the Sellers.
IN THE WITNESS HEREOF, the parties have executed this Agreement as of the date
first written above.
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SELLERS PURCHASER
RONALD WILLIAM CLARK JR. THE UNI TY OF Y LLE
B
Signature
Name:
RICHARD HOPKINS CLARK
Z_ 1' D Title: — Mavor R o TSAA
Signature Date: Date: /off - / $ , 2007
S N CLARK GA LL
Signature Date:
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