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Ordinance 2016-61 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO.2016-61 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING THE PURCHASE AGREEMENT BY AND AMONG DON HARBECKE AND THE UNITED CITY OF YORKVILLE Passed by the City Council of the United City of Yorkville,Kendall County, Illinois This 25`x'day of October, 2016 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on January 20, 2017. Ordinance No. 2016- Lei AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS,APPROVING THE PURCHASE AGREEMENT BY AND AMONG DON HARBECKE AND THE UNITED CITY OF YORKVILLE 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 one green, white, and yellow 1967, originally CB&Q Caboose, now retired BN Caboose, with a Car Number of BN 10138 (the "Caboose") as pictured in the photograph attached hereto as Exhibit A; and, WHEREAS, in accordance with Section 11-76-4 of the Illinois Municipal Code (65 ILCS 5/1-14-1 et seq.) the City by simple majority of the Mayor and City Council (the "Corporate Authorities") may sell personal property in any way the Corporate Authorities may designate, with or without advertising for sale, when in the opinion of the Corporate Authorities, it is no longer necessary or useful to, or in the best interests of the City to keep said personal property; and, WHEREAS, the City received an offer to purchase the Caboose; and, WHEREAS, the Corporate Authorities have determined that the Caboose is no longer necessary or useful to the City and that it is in the best interests of the City to sell the Caboose pursuant to the offer made. 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. Ordinance No.2016-(q Page 2 Section 2. The Purchase Agreement, attached hereto as Exhibit B and incorporated herein by this reference, for the sale of the Caboose is hereby approved. Section 3. The Mayor and City Clerk are hereby authorized and directed to execute and deliver said Purchase 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 of the Purchase Agreement. 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 O d "✓ , A.D. 2016. G CITY CLERK CARLO COLOSIMO KEN KOCH JACKIE MILSCHEWSKI LARRY KOT CHRIS FUNKHOUSER JOEL FRIEDERS DIANE TEELING \ SEAVER TARULIS Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 31''f day of d C7f)6E , , A.D. 2016. MAY(JR Attest: CITY CLERK Ordinance No.2016-kL Page 3 Exhibit A Photograph of Caboose 3,€ '�I r �^ t • 44, t . Ai 4 h I w M it , 1 1 ko , ^ A 4 u . n , f' 1, a 1 r i d Exhibit B Purchase Agreement PURCHASE AGREEMENT THIS AGREEMENT is made and entered into as of this 3 day of October, 2016 (the "Contract Date") by and among the Don Harbecke, an individual, or his designee ("Purchaser") and the United City of Yorkville, an Illinois Municipal Corporation (the "Seller"). (collectively the"Parties"). RECITALS: WHEREAS, the Seller owns a green, white, and yellow 1967 originally CB&Q Caboose, now retired BN Caboose, with a Car Number of BN 10138 (the"Caboose"). WHEREAS, Purchaser desires to acquire from Seller, and Seller desire to sell to Purchaser the Caboose under the terms provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and on the basis of the respective representations and warranties herein set forth and the covenants, agreements and indemnities herein contained, the Parties hereto agree as follows: ARTICLE 1 ACQUISITION 1.01 The Property. On the terms and subject to the conditions of this Agreement, on the Contract Date, Purchaser shall purchase from Seller, and Seller shall sell, convey, assign, transfer, and deliver all right,title and interest of Seller in and to the Caboose owned by Seller as of the Closing Date. 1.02 Purchase Price. The purchase price for the property described in Section 1.01 shall be$5,000.00 (the"Purchase Price"). 1.03 Payment of Purchase Price. Purchaser shall pay the Purchase Price as follows. On the Contract Date, Purchaser shall pay to Seller $2,500.00 as earnest money ("Earnest Money"). The Purchaser shall then pay to Seller the then unpaid balance of the Purchase Price in readily available funds at the Closing. 1.04 Closin . Subject to the terms and conditions of this Agreement, the transactions contemplated hereunder shall be closed on May 31, 2017 at a mutually agreeable location in Yorkville, Illinois. Upon closing, Seller shall transfer to Purchaser the Caboose by bill of sale and Purchaser, at his sole cost and expense, shall remove the Caboose from its current location near the intersection of Mill Street and Hydraulic Street in Yorkville. ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER 1 Seller represents and warrants to Purchaser that: 2.01 Marketable Title. The Seller has taken all steps necessary for the transfer and sale of the Caboose to Purchaser. Seller has valid and marketable title to the Caboose, free and clear of any claim, lien, encumbrance or other right or interest in any person, and has the absolute and unrestricted right, power, authority, and capacity to transfer and exchange the Caboose as herein provided. Seller will not transfer or encumber or agree to transfer or encumber, in any way, the Caboose between the Contract Date and the Closing. 2.02 Agreement Binding. The Seller has taken any and all actions that may be necessary to enter into this transaction, and this Agreement constitutes the valid and binding agreement of the Seller. This Agreement will not conflict, result in a breach of the terms and conditions of, accelerate any provision of, or constitute a default under any contract or agreement to which Seller`or Seller is now or may become a party. 2.03 Disclaimer of Implied Warranties. SELLER OFFERS NO WARRANTY AND PURCHASER ACCEPTS THE CABOOSE "AS IS" AND "WHERE IS" IN ITS PRESENT STATE AND CONDITION. SELLER DISCLAIMS ALL IMPLIED WARRANTIES AND SIMILAR OBLIGATIONS INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY, WHETHER ARISING BY LAW, CUSTOM, USAGE, TRADE PRACTICE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. There are no warranties which extend beyond those express warranties contained in the Agreement. Purchaser affirms that it has not relied upon Seller's skill nor judgment to select or furnish the Caboose for any particular purpose beyond the specific express warranties in the Agreement. Seller does not warrant that the Caboose will comply with the requirements of any safety or environmental code or regulation of any federal, state,municipality or other jurisdiction beyond the specific express warranties in the Agreement. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to Seller that: 3.01 Agreement Binding. This Agreement is a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, except as limited by bankruptcy, insolvency, moratorium or similar laws of general application affecting enforcement of creditors' rights generally. 3.02 Other Agreements. Purchaser shall not commit any act or suffer or permit the occurrence of any transaction, event or action which will prohibit or in any way impede or hinder the complete performance by Purchaser of all its duties and obligations required of them by, under, or pursuant to this Agreement in accordance with all of its terns and conditions. 2 ARTICLE 4 GOVERNING LAW; ENTIRE AGREEMENT This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements. This Agreement may not be changed except in a writing executed by all Parties. This Agreement shall be construed and interpreted in accordance with Illinois law. ARTICLE 5 EXPENSES Except as otherwise specifically provided in this Agreement, the Parties shall each bear their own respective expenses (including, but not limited to, all compensation and expenses of counsel, financial advisors, consultants, actuaries and independent accountants) incurred in connection with this Agreement and consummation of the transactions contemplated hereby. In any action between any of the parties seeking enforcement of any of the provisions of this Agreement or in connection with the rights and obligations of any party hereunder, the prevailing party in such action shall be awarded, in addition to any other relief to which it may be entitled, its reasonable costs and expenses (not limited to taxable costs)and reasonable attorneys' fees. ARTICLE 6 WAIVER No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. ARTICLE 7 NOTICES Any notice or other communication required or permitted to be given under this Agreement, or necessary or convenient in connection herewith, shall be in writing and shall be deemed to have been duly given to the parties hereto if delivered personally on the day of such delivery, or, if mailed by first class mail,postage prepaid, registered or certified mail, then on the date which is five(5)days after deposit of such mailing, addressed as follows: If to the Purchaser: with a copy to: 3 If to Seller: U P4 177 D C t-f\( o� `(o P Kv t LLr <600 C-)flmC fAp,M RT> . Y09 4V t l-L-E, l L . (005�O ARTICLE 8 MISCELLANEOUS 8.01 Construction&Amendment. When the context so requires in this Agreement, the use of one gender includes either or both of the other genders and the singular number includes the plural. This Agreement, including the Exhibits hereto, constitutes the entire understanding of the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written. The Parties hereto, by mutual written agreement, may amend,modify and supplement this Agreement. 8.02 Severability. In case any provision of this Agreement not material to the benefits intended to be conferred hereby is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby. 8.03 Entire Agreement; Modifications. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations,prior discussions and preliminary agreements. This Agreement may not be changed except in writing executed by the Purchaser, Seller and the Shareholders. 8.05 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [Remainder of Page Intentionally Left Blank] 4 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. PURCHASER: DON HARBECKE t�'Cz SELLER UNITED CITY OF YORKVILLE ' > �ryr n Itsayo , 5