Loading...
Ordinance 2016-44 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2016-44 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS, APPROVING THE BRISTOL BAY PARK PURCHASE AND SALE AGREEMENT Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 28`x'day of June, 2016 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on July 12,2016. Ordinance No. 2016-_ff�j AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING THE BRISTOL BAY PARK PURCHASE AND SALE AGREEMENT WHEREAS, the United City of Yorkville, Kendall County, Illinois (the"City") is a duly organized and validly existing non-home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the City owns certain real estate commonly known as Bristol Bay Park consisting of sixty-five (65) acres in total, fifty (50) acres of which are used in part for soccer fields, in part for a baseball field and a portion of which remains to be developed as a park; and, WHEREAS, the balance of the approximately fifteen (15) acres is zoned as OS-2 Open Space (Recreational), is identified as parcel number 02-04-200-015 (the "Recreational Parcel") and remains to be developed on the condition that such development compliments the existing uses as soccer fields, a baseball field and the proposed park and is developed solely for recreational purposes; and, WHEREAS, by Ordinance No. 2016-32 and in accordance with Section 11-76-2 of the Illinois Municipal Code (65 ILCS 5/1-14-1 et seq.) the City found it to be in the best interests of its residents to sell the Recreational Parcel and thereafter published notice for three (3) consecutive weeks in the Kendall County Record requesting proposals for the sale of the Recreational Parcel; and, WHEREAS, Elevation Investments, LLC, an Illinois Limited Liability Corporation (the "Purchaser") has submitted a proposal to the City to purchase the Recreational Parcel for $250,000.00; and, Ordinance No.2016-g4 Page 2 WHEREAS, the Mayor and City Council of the City have determined it to be in the best interest of the City to accept the proposal and authorize the conveyance of the Recreational Parcel to Elevation Investments, LLC pursuant to the terms and conditions set forth in the "Real Estate Purchase and Sale Agreement" which is attached hereto as Exhibit A and made a part hereof. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. Each of the recitals above is incorporated by reference in this Section 1. Section 2. The proposal made by Elevation Investments, LLC to purchase the Recreational Parcel is hereby accepted and the REAL ESTATE PURCHASE AND SALE AGREEMENT, attached hereto as Exhibit A, for the sale of the Recreational Parcel is hereby approved. Section 3. The Mayor and City Clerk are hereby authorized and directed to execute and deliver said Real Estate Purchase and Sale Agreement and the Mayor, City Clerk, and Administrator are hereby authorized to undertake any and all actions as may be required to implement the terms thereof. Section 4. This Ordinance shall be in full force and effect from and after its passage, approval, and publication as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois, this day of < , A.D. 2016. CARLO COLOSIM t Y O KEN KOCH 1 JACKIE MILSCHEWSKI LARRY KOT CHRIS FUNKHOUSER JOEL FRIEDERS l DIANE TEELING –^— SEAVER TARULIS Ordinance No.2016-y q Page 3 APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this S day of J U L-Y ,A.D. 2016. AM4 �XC141- Mayor Attest: City Clerk Ordinance No.2016-yy Page 4 REAL ESTATE PURCHASE AND SALE AGREEMENT This AGREEMENT ("Agreement") is made this a 8 day of June, 2016 between THE UNITED CITY OF YORKVILLE, a municipal corporation ("City"), and ELEVATION INVESTMENTS, LLC, an Illinois Limited Liability Company ("Purchaser"). RECITALS WHEREAS, City owns certain real estate commonly known as Bristol Bay Park consisting of sixty-five (65) acres in total, fifty (50) acres of which are used in part for soccer fields, in part for a baseball field and park area; and WHEREAS, the balance of the approximately fifteen (15) acres is zoned as OS-2 Open Space (Recreational), is identified as parcel number 02-04-200-015 and may be developed on the condition that such development is open to the public, compliments the existing uses as soccer fields, a baseball field and park area and is developed solely for recreational purposes; and WHEREAS, the City advertised and requested bids for the sale of the real estate (PIN 02-04-200-015) depicted and legally described on the attached Exhibit A (the "Land") and as a result the Purchaser presents an offer and plan for development; and WHEREAS, City desires to sell, and Purchaser desires to buy, the Real Estate hereafter described, at the price and on the terms and conditions hereinafter set forth. WITNESSETH NOW, THEREFORE, in consideration of mutual covenants hereafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are mutually.acknowledged by City and Purchaser it is agreed by and between the parties as follows: 1. Real Estate. City shall transfer, assign, sell, and convey or cause to be transferred, assigned, sold, and conveyed to Purchaser all of City's interest of the Land and all other improvements on the Land (collectively, the "Improvements") together with all of City's rights, titles, and interests, if any, in and to all easements, party walls, rights of way, privileges, appurtenances, and rights to the same, belonging to or inuring to the benefit of the Land. The Land, the Improvements, and other real property interests to be conveyed as aforesaid are collectively referred to herein as the "Real Estate." The conveyance of the Real Estate shall be by a recordable special warranty deed with release of homestead rights, if any, subject only to Permitted Exceptions as defined in Paragraph 3.C. 2. Purchase Price; Earnest Money. A. The purchase price to be paid by Purchaser to City at Closing for the Real Estate ("the Purchase Price") shall be $250,000, less any and all prorations and adjustments, if any (as defined and described in Paragraph 7 of this Agreement). B. Within 24 hours of the execution of this Agreement, Purchaser will deliver to the Escrow Agent (as hereinafter defined) the sum of$25,000, ("the Earnest Money"). The Escrow Agent shall hold and retain the Earnest Money, in trust, and shall disburse the same in accordance with the terms and conditions contained in this Agreement. If the Real Estate is sold to Purchaser pursuant to this Agreement, then the Earnest Money shall be paid to the City at Closing (as hereinafter defined) and applied against the payment of the Purchase Price. If this Agreement is terminated, the Earnest Money shall be disbursed to City or Purchaser, as applicable, in accordance with the terms hereof. 3. Title Insurance; Permitted Exceptions; Survey. A. Not later than ten (10) days after execution of this Agreement, City shall deliver or cause to be delivered to Purchaser, at City's expense, a commitment ("the Commitment") by Chicago Title (the "Title Insurer" or the "Escrow Agent") to issue a current form ALTA owner's title insurance policy (the "Owner's Title Policy"), in the amount of the Purchase Price, covering title to the Real Estate, subject to the Permitted Exceptions. B. Not later than ten (10) days after execution of this Agreement, City, at its own expense, shall furnish Purchaser with an ALTA survey of the Real Estate, dated after the date of this Agreement, made by an Illinois licensed surveyor, in accordance with ALTA/ACSM land title survey requirements and sufficient to allow the Title Insurer to provide "extended coverage" ("Survey"). Such Survey shall be certified to the Title Insurer, Purchaser, and Purchaser's lender. The Survey shall indicate the total square footage of the Land, location of any improvements upon the Land, and all easements, building lines, set-back requirements and rights-of-way, recorded or visible. C. The following matters shall be permitted exceptions to title insurance coverage ("Permitted Exceptions"): 1) general exceptions set out in the Commitment; 2) any other matter (including encroachments and liens and encumbrances of a definite and ascertainable amount) over which the Title Insurer will issue an endorsement or against which Purchaser will be indemnified by the Title Insurer, provided that the same is acceptable to Purchaser; 3) all reservations, exceptions, covenants, conditions, restrictions, agreements, easements, setback lines and other matters of record which are disclosed in the Title Commitment and to which Purchaser has not objected; 4) zoning regulations and other governmental laws, rules, regulations, codes, orders and directives affecting the Real Estate; 5) unrecorded easements, discrepancies, boundary line disputes, overlaps, shortages in area, encroachments and other matters which are disclosed by City to Purchaser and to which Purchaser has not objected; 6) matters arising as a result of the acts or omissions of Purchaser or any of its Affiliates, agents, employees, contractors or representatives. 2 D. If the Commitment discloses exceptions (including disclosure that City is not in title to the Real Estate), if the legal description on the Survey does not match that on the Commitment, or if the Survey discloses encroachments, boundary line disputes, or other matters which do or may render title to the Real Estate unmarketable (herein referred to as "survey defects"), Purchaser shall have 10 days from the date of delivery thereof to provide City with a written notice (the "Purchaser's Objections Notice") of any matters on the Commitment or the Survey to which Purchaser objects (the "Purchaser's Objections"). If Purchaser fails to deliver Purchaser's Objections Notice within such 10- day period, Purchaser shall be deemed to have waived any objections to and accepted the Commitment and the Survey. Within seven (7) days after City's receipt of the Purchaser's Objections Notice (the "City Objection Response Period"), City shall provide written notice to Purchaser as to whether City will cure any of the Purchaser's Objections or refuse to cure the Purchaser's Objections (the "City's Response Notice"). In no event shall City be obligated to cure any of the Purchaser's Objections. If City fails to deliver the City's Response Notice within the City Objection Response Period, City shall be deemed to have elected not to cure the Purchaser's Objections. In the event City elects, or is deemed to have elected, not to cure any of Purchaser's Objections, then Purchaser shall have the right, by written notice delivered to City within seven (7) days after the expiration of the City's Objection Response Period (the "Purchaser's Election Notice"), to either (i) waive the Purchaser's Objections which City shall not cure and proceed to Closing, in which event each of such Purchaser's Objections shall be deemed a Permitted Exception, or (ii) terminate this Agreement, in which event the Earnest Money shall be refunded to Purchaser and the parties shall have no further rights or objections hereunder. In the event Purchaser fails to deliver the Purchaser's Election Notice to City within seven (7) days after the expiration of the City's Objection Response Period, then Purchaser shall be deemed to have elected to waive the Purchaser's Objections and proceed to Closing. All of Purchaser's Objections that are waived, or deemed to be waived by Purchaser shall become Permitted Exceptions. In the event City elects to cure any of Purchaser's Objections, City shall complete the cure of such Purchaser's Objections on or before the Closing Date. E. At the Closing, City shall deliver to Purchaser evidence that Purchaser will receive from the Title Insurer, at City's expense, a current form ALTA owner's title insurance policy insuring the fee simple interest of Purchaser in the Real Estate in the amount of the Purchase Price. 4. Escrow Closing. The Closing on this transaction shall be on or before July 31, 2016, or as agreed to by the attorneys for City and Purchaser; or at such earlier, or later date, as agreed upon in writing by the Purchaser and City, or by their attorneys (the "Closing Date"), provided all conditions hereof have been fulfilled, and this Agreement has not been terminated pursuant to City's default, or by Purchaser pursuant to the provisions hereof. A. Closing. Unless agreed to by the attorneys, this transaction shall be closed through an Escrow with the Title Insurer, in accordance with the general provisions of the usual form of deed and money escrow agreement then in use by the Title Insurer, with such special provisions inserted in the Escrow Agreement as may be required to conform with this Agreement. On the creation of such escrow, anything herein to the contrary notwithstanding, payment of the Purchase Price and delivery of Deed shall be made through the 3 Escrow and this Agreement and the Earnest Money shall be deposited in the Escrow. The cost of the Escrow shall be divided by Purchaser and by City. B. Possession. City shall deliver possession of the Real Estate to Purchaser as of the Closing Date, provided there is no delay in the disbursement of closing proceeds. In the event that there is a delay in the disbursement of closing proceeds, City shall deliver possession of the Real Estate to Purchaser at such time as the closing proceeds are disbursed to City. 5. Broker's Commission. A. Purchaser represents that Purchaser has not contacted any broker and has not engaged a real estate broker in the connection with the execution of this Agreement, or in connection with the acquisition of the Real Estate. Purchaser represents that, as a consequence of Purchaser's execution of this Agreement, and as a consequence of the intended Purchase, no broker shall be entitled to a commission at the Closing, or otherwise, as a consequence of Purchaser's actions. B. City represents that City has not contacted any broker and has not engaged a real estate broker in the connection with the execution of this Agreement, or in connection with the sale of the Real Estate. City represents that, as a consequence of City's execution of this Agreement, and as a consequence of the intended sale, no broker shall be entitled to a commission at the Closing, or otherwise, as a consequence of City's actions. 6. Representations, Warranties and Covenants of City. City hereby makes the following representations, warranties and covenants to and with Purchaser, each of which representations, warranties and covenants are material and true as of the date hereof and which shall continue to be true at the Closing and shall where applicable survive the Closing: A. There is not pending or, to the best of City's knowledge any threatened, litigation or proceedings before any court, tribunal or other governmental agency respecting the Real Estate, or the ownership of the Real Estate by City. City will advise Purchaser of any notice or summons or complaint City receives of the commencement of any litigation or like proceeding respecting the Real Estate or City's ownership of the Real Estate. B. City's execution of and performance under this Agreement is pursuant to authority validly and duly conferred upon City. City has the right and authority to perform all of its obligations hereunder without obtaining any further consents from any partners, creditors, investors, judicial bodies, administrative agencies, governmental authorities or others. City is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended. C. There are no leases affecting any portion of the Real Estate and there exists no contracts, verbal or written, including without limitation, service contracts or maintenance contracts, affecting the Real Estate, which will survive the Closing. 4 D. City shall file any necessary application for exemption from Property Taxes for which City is entitled by way of its ownership of the Real Estate for a portion of the year 2016. Said obligation shall survive Closing. 7. Representations, Warranties and Covenants of Purchaser. Purchaser hereby makes the following representations, warranties and covenants to and with City, each of which representations, warranties and covenants are material and true as of the date hereof and which shall continue to be true at the Closing and shall where applicable survive the Closing: A. (i) Purchaser is a limited liability company, duly organized, validly existing and in good standing under the laws of the state of its formation, (ii) to the extent required by law, Purchaser is, or will be by Closing, duly qualified to do business in the state where the Real Estate is located, (iii) Purchaser has all power and authority necessary for it to execute and deliver this Agreement and perform its obligations hereunder, and (iv) the execution, delivery and performance of this Agreement by Purchaser does not conflict with or constitute a breach of any contract, agreement or other instrument by which Purchaser is bound. B. (i) the execution and delivery of this Agreement by Purchaser and Purchaser's performance of its obligations under this Agreement does not conflict with or result in a breach of any order, judgment, writ, injunction or decree of any court, arbiter or governmental instrumentality in any action to which Purchaser is a party as of the Effective Date, (ii) the individual executing this Agreement on behalf of Purchaser has the authorization and direction of Purchaser to so execute and deliver this Agreement and bind Purchaser to the provisions thereof and covenants and agreements contained herein, and (iii) this Agreement and any documents executed by Purchaser pursuant to this Agreement are binding and enforceable against Purchaser. C. Purchaser is not a party to any pending lawsuits or governmental proceedings that could have a material adverse effect on Purchaser's ability to perform its obligations under this Agreement. D. Purchaser has not (i) filed any voluntary petition in bankruptcy or sought to reorganize its affairs under the Bankruptcy Code of the United States or any other federal, state or local law related to bankruptcy, insolvency or relief for debtors, (ii) been adjudicated as bankrupt or insolvent, or (iii) had an involuntary petition filed against it under the Bankruptcy Code of the United States or any other federal, state or local law related to bankruptcy, insolvency or relief for debtors. 8. Conditions to Purchaser's Obligation to Close. Purchaser shall not be obligated to proceed with the Closing unless and until each of the following conditions has been either fulfilled or waived by Purchaser: A. There shall have been no uncured breach of any material representation, warranty or covenant given by City herein which was untrue as of the date hereof or as of Closing. City shall have a period of fifteen (15) days to cure a breach under this subparagraph (a), such cure period to commence upon the date of City's receipt of written notice from Purchaser that such breach exists. 5 B. This Agreement shall not have been previously terminated pursuant to any other provision hereof or by reason of any default by City. C. City shall be prepared to deliver to Purchaser all instruments and docu- ments to be delivered to the Title Insurer and Purchaser, at the Closing, pursuant to Paragraph 11 or any other provision of this Agreement. D. There shall not exist any environmental contamination of the Real Estate or other environmental condition of the Real Estate unacceptable to Purchaser whereby Purchaser has terminated this Agreement. E. City shall have agreed to and executed the Land Use Agreement attached hereto as Exhibit B and incorporated herein by this reference. 9. Conditions to City's Obligation to Close. City shall not be obligated to proceed with the Closing unless and until each of the following conditions has been fulfilled or waived by City: A. Purchaser or the Title Insurer shall be prepared to pay to City the Net Purchase Price to be paid to City at the Closing pursuant to the provisions of this Agreement and the Closing documents; B. This Agreement shall not have been previously terminated pursuant to any other provision hereof or by reason of any Purchaser default; C. Purchaser shall have agreed to and executed the Land Use Agreement attached hereto as Exhibit B and incorporated herein by this reference. 10. Closing Deliveries. A. At the Closing, City shall deliver or cause to be delivered to Purchaser, through the escrow each of the following: (i) The Deed to the Real Estate provided for in Paragraph 3 hereof, (ii) A certificate in the form approved by the United States Internal Revenue Service relating to City's representation contained in Paragraph 8(c) that it is not a "foreign person;" (iii) An Affidavit of Title to Purchaser, and an ALTA Statement to Purchaser and to the Title Insurer, certifying that there are no tenants or manager of the Real Estate and that City has not performed any work on the Real Estate or ordered any materials therefor which would give rise to a mechanic's lien against the Real Estate; (iv) Such other documents and instruments as may be specifically required by any other provision of this Agreement or as may reasonably be required to carry out the terms and intent of this Agreement. B. At the Closing, Purchaser shall deliver or cause to be delivered to City, through the escrow each of the following: 6 (i) The Net Purchase Price due to City per the Closing Statement as approved by the City's and Purchaser's attorneys, which Closing Statement will contain all prorations for recording releases of City's liens, and other credits to Purchaser for the payment of City's Closing expenses, if any, which are to be paid via the Closing; and (ii) Such other documents and instruments as may be specifically required by any other provision of this Agreement or as may reasonably be required to carry out the terms and intent of this Agreement. 11. Expenses. At the Closing the expenses shall be paid as follows: A. One half(1/2) of escrow fees, all Title charges for an Owner's Policy and all other City's closing costs, charges and expenses, shall be borne and paid by City. Purchaser represents that the conveyance provided for herein is an Exempt transaction pursuant to 35 ILCS 200/31-45 (b)(1) and that no real estate transfer taxes shall be payable to the State of Illinois, the County of Kendall, or the Purchaser as a consequence of this conveyance. B. One half (1/2) of escrow fees, and charges for recording fees for the Deed, shall be paid by Purchaser. C. City shall pay any recording charges for release documentation or title clearance matters caused by City lien/s or City's Title Defects. D. Each party shall pay its own respective attorneys' fees and costs. 12. Miscellaneous Provisions. A. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous written or oral agreements, undertakings, promises, representations, warranties or covenants not contained herein, all of which prior agreements are hereby terminated and of no force or effect. B. This Agreement may be amended only by a writing executed by both Purchaser and City. C. This Agreement may not be assigned by Purchaser or City, nor shall City assign its interest in this Agreement or the net proceeds, unless City utilizes such assignments in connection with a Like-Kind Exchange pursuant to Sections 1031 of the Internal Revenue Service Code. D. No waiver of any provision or condition of this Agreement by either party shall be valid unless in writing signed by such party. No such waiver shall be taken as a waiver of any other or similar provision or of any future event, act, or default. 7 E. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a Saturday, Sunday, or legal holiday. F. In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, or shall be excised from this Agreement, as circum- stances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision had not been included herein, as the case may be. G. Headings of paragraphs are for convenience of reference only, and shall not be construed as a part of this agreement. H. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective lawful successors. I. Whenever a written notice is required or permitted pursuant to this Agreement notice shall be delivered pursuant to this clause, with telecopy facsimile sent to the indicated telecopy numbers when notice is delivered to the courier, or deposited for delivery by the U.S. Postal Service. All notices required or desired to be given hereunder shall be deemed given if and when delivered personally, or on the day of being deposited with a national overnight courier service, or on the day of being deposited in the Untied States certified or registered mail, return receipt requested, postage prepaid, addressed to a party at its address set forth below, or such other address as the party to receive such notice may have designated to all other parties by notice in accordance herewith: If to Purchaser: Elevation Investments, LLC 12565 Fox Road Yorkville, Illinois 60560 With a copy to: Kelly A. Helland Law Offices of Daniel J. Kramer I I 07 South Bridge St. Yorkville, Illinois 60560 630-553-9500 kkramer@dankramerlaw.com If to City: United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 With a copy to: Kathleen Field Orr Kathleen Field Orr & Associates 53 West Jackson Blvd. Suite 964 Chicago, Illinois 60604 8 Telephone: 312-382-2113 FAX: 312-382-2127 (J) 1031 Exchange: Purchaser hereunder desires to exchange other property of like kind and qualifying use within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder, for fee title in the property which is the subject of this contract. Purchaser expressly reserves the right to assign its rights, but not its obligations, hereunder to a Qualified Intermediary as provided in IRC Reg. 1.1031 (k)-1(g)(4) on or before the closing date. (K) Time is of the essence of this Agreement. CITY: OWNER OF RECORD, or Owner of Record's duly authorized Agent. By: its: M Date: J uLy 5� , 2016 PURCHASER: Elevation Investments, LLC Its: A#4er Date: L�GL/e� o� 2016 9 EXHIBIT A Property Index Number 02-04-200-015 Legal Description: 10 LEGAL DESCRIPTION THAT PART OF LOT 2052 IN BRISTOL BAY P.U.D. UNIT 8, IN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 2052; THENCE NORTHWESTERLY,ON THE SOUTH LINE OF SAID LOT 2052, 223.27 FEET ON A CURVE TO THE LEFT WITH RADIUS OF 11520.00 FEET, CHORD BEARING NORTH 71 DEGREES 20 MINUTES 31 SECONDS WEST,AND CHORD OF 223.26 FEET FOR POINT OF BEGINNING; THENCE NORTHWESTERLY, ON SAID SOUTH LINE, 799.51 FEET ON A CURVE TO THE LEFT WITH RADIUS OF 11520.00 FEET,CHORD BEARING NORTH 73 DEGREES 53 MINUTES 08 SECONDS WEST,AND CHORD OF 799.35 FEET; THENCE NORTH 13 DEGREES 40 MINUTES 20 SECONDS EAST, 915.67 FEET; THENCE NORTH 88 DEGREES 34 MINUTES O1 SECOND EAST, 528.28 FEET TO THE WEST LINE OF A STORMWATER MANAGEMENT EASEMENT AS SHOWN ON PLAT OF SAID UNIT 8; THENCE SOUTH O1 DEGREE 1 I MINUTES 29 SECONDS EAST,ON SAID WEST LINE, 1125.05 FEET TO THE POINT OF BEGINNING. EXHIBIT THAT PART OF LOT 2052 IN BRISTOL BAY P.U.D. UNIT 8, IN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID LOT 2052; THENCE NORTHWESTERLY, ON THE SOUTH LINE OF SAID LOT 2052, 223.27 FEET ON A CURVE TO THE LEFT WITH RADIUS OF 11520.00 FEET, CHORD BEARING NORTH 71 DEGREES 20 MINUTES 31 SECONDS WEST, AND CHORD OF 223.26 FEET FOR POINT OF BEGINNING; THENCE NORTHWESTERLY, ON SAID SOUTH LINE, 799.51 FEET ON A CURVE TO THE LEFT WITH RADIUS OF 11520.00 FEET, CHORD BEARING NORTH 73 DEGREES 53 MINUTES 08 SECONDS WEST, AND CHORD OF 799.35 FEET; THENCE NORTH 13 DEGREES 40 MINUTES 20 SECONDS EAST, 915.67 FEET; THENCE NORTH 88 DEGREES 34 MINUTES 01 SECOND EAST, 528.28 FEET TO THE WEST LINE OF A STORMWATER MANAGEMENT EASEMENT AS SHOWN ON PLAT OF SAID UNIT 8; THENCE SOUTH 01 DEGREE 11 MINUTES 29 SECONDS EAST, ON SAID WEST LINE, 1125.05 FEET TO THE POINT OF BEGINNING. 30.00'—� / I NS8'34'01"E J I ----- 528.28'---------- / / --- ------------� EXISTING 30'P.U. &D.E. I PART OF j LOT 2052 BRISTOL BAY P.U.D. 0. /.Cy I UNIT 8 I l'C� l n DOCf 200800020564 1 /ern / $ I U! a, ma / H la ON <R l 15.13 ACRES I R �2 o g: N= / 30.00• I � 30.00' I / / / I / 210.00' C a NORTH LINE OF GALENA ROAD 1 7`4.57 ACCORDING TO PLAT OF 1 BRISTOL BAY P.U.D. UNIT 8, Eb$ ` _\ DOC#200800020564 30 Pu. I c520 • ����_ I q�ENA M040 `� P.O.C. I P.O.B. Ca R.11 2`.� Engineering Enterprises, Inc. 0 100 200 j CONSULTING ENGINEERS SCALE FEET 52 Wheeler Road Sugar Grove, Illinois 60554 PROJECT NO: Y01609 630.466.6700 / www.eeiweb.com FILE NO: Y01609 SURVEY BASE Exhibit B LAND USE AGREEMENT This AGREEMENT ("Agreement") is made this day of June, 2016 between THE UNITED CITY OF YORKVILLE, a municipal corporation ("City"), and ELEVATION INVESTMENTS, LLC, an Illinois Limited Liability Company ("Purchaser")(collectively, the "Parties"). RECITALS WHEREAS, City owns certain real estate commonly known as Bristol Bay Park consisting of sixty-five (65) acres in total, fifty (50) acres of which are used in part for soccer fields, in part for a baseball field and park area; and WHEREAS, the balance of the approximately fifteen (15) acres is zoned as OS-2 Open Space (Recreational), is identified as parcel number 02-04-200-015 (the "Recreational Parcel") and may be developed on the condition that such development is open to the public, compliments the existing uses as soccer fields, a baseball field and park area and is developed solely for recreational purposes; and WHEREAS, Purchaser submitted a proposal to purchase the Recreational Parcel as requested by the City and the City has accepted said proposal; and WHEREAS, the Parties desire to memorialize the terms and conditions of use, as presented in Purchaser's proposal, of the Recreational Parcel by this Agreement which will be incorporated as part of the Purchase and Sale Agreement between the Parties. WITNESSETH NOW, THEREFORE, in consideration of mutual covenants hereafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged by City and Purchaser it is agreed by and between the parties as follows: 1. Term. All of the responsibilities and obligations of City and Purchaser, as outlined in Paragraphs 2 and 3 below shall continue until and unless waived by the City. The duties of the respective Parties under this Agreement shall continue in full force and effect and survive the closing contemplated by the Purchase and Sale Agreement in which this Agreement is incorporated. 2. City's Responsibilities and Obligations. A. The City will provide Purchaser with full access to utilities and the City will provide certification that there are no recapture agreements relating to the Recreational Parcel. B. The conveyance of the Recreational Parcel will include access to the City's drainage ditch to the east of the property. Such access shall remain unfettered; provided however, the City shall have no responsibility to provide water storage for the Recreational Parcel. C. The City will grant Purchaser both onsite and offsite drainage and utility easements. The City shall only be responsible for granting an easement to offsite drainage to the extent that the City has control over offsite drainage. 3. Purchaser's Responsibilities and Obligations. A. Purchaser will build a year round facility (the "Facility") designed to provide members of the community, the Yorkville Parks and Recreation Department, the Yorkville School District, and private organizations with opportunities to take part in adaptive sport programs tailored to persons of all different ability levels. B. At the option of the City, Purchaser will coordinate with the City to connect Purchaser's outdoor perimeter path to the City's outdoor perimeter path. C. Purchaser will offer the Yorkville Parks and Recreation Department a 20% discount off all published rental prices for the first three years of operation of the Facility. D. The Facility and its programs and activities shall remain open to the public during open gym hours and Purchaser shall create specified open gym, turf, and track access for members only. E. Purchaser shall allow patrons of the neighboring park to park in the parking lot located along the northern portion of the Recreational Parcel. F. Prior to commencing any construction on the Recreational Parcel, Purchaser shall have delivered to City engineering plans created by a duly qualified engineer in a form acceptable to City showing the Proposed Development Plan for the Recreational Parcel. City shall have the sole discretion to approve or deny any such plan, said approval to not be unreasonably withheld. Under no circumstances shall construction commence without the City's approval of the Proposed Development Plan. G. Prior to commencing any construction on the Recreational Parcel, Purchaser shall have delivered to City plans prepared by the Kendall County Highway Department showing the proper entrance and, if necessary, deceleration lanes on Galena Road providing access to the Proposed Development Plan. 4. Miscellaneous Provisions. A. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous written or oral agreements, undertakings, promises, representations, warranties or covenants not contained herein, all of which prior agreements are hereby terminated and of no force or effect. B. This Agreement may be amended only by a writing executed by both Purchaser and City. 2 D. No waiver of any provision or condition of this Agreement by either party shall be valid unless in writing signed by such party. No such waiver shall be taken as a waiver of any other or similar provision or of any future event, act, or default. E. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a Saturday, Sunday, or legal holiday. F. In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, or shall be excised from this Agreement, as circum- stances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision had not been included herein, as the case may be. G. Headings of paragraphs are for convenience of reference only, and shall not be construed as a part of this Agreement. H. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective lawful successors. 1. Whenever a written notice is required or permitted pursuant to this Agreement notice shall be delivered pursuant to this clause, with telecopy facsimile sent to the indicated telecopy numbers when notice is delivered to the courier, or deposited for delivery by the U.S. Postal Service. All notices required or desired to be given hereunder shall be deemed given if and when delivered personally, or on the day of being deposited with a national overnight courier service, or on the day of being deposited in the Untied States certified or registered mail, return receipt requested, postage prepaid, addressed to a party at its address set forth below, or such other address as the party to receive such notice may have designated to all other parties by notice in accordance herewith: If to Purchaser: Elevation Investments, LLC 12565 Fox Road Yorkville, Illinois 60560 With a copy to: Kelly A. Helland Law Offices of Daniel J. Kramer 1107A South Bridge St. Yorkville, Illinois 60560 630-553-9500 kkramer@dankramerlaw.com 3 If to City: United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 With a copy to: Kathleen Field Orr Kathleen Field Orr& Associates 53 West Jackson Blvd. Suite 964 Chicago, Illinois 60604 Telephone: 312-382-2113 FAX: 312-382-2127 (j) Time is of the essence of this Agreement. CITY: By: —_Xa4A4 i/W Its: M AYok- Date: J u LY 5 12016 PURCHASER: Elevation Investments, LLC Its: Date: �/,�.� o�� 52016 4