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Home My WebLink About09-277 Resolution No. 09-277 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH NORTHSTAR TRUST COMPANY, AS TRUSTEE UNDER TRUST NO. HTB 1866, FOR WATER SERVICE AT 1100 BRANDT DRIVE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute an Agreement with Northstar Trust Company, as Trustee under Trust No. HTB 1866 on behalf of the City of Elgin for water service at 1100 Brandt Drive,a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: December 16, 2009 Adopted: December 16, 2009 Vote: Yeas: 7 Nays: 0 Attest: s/ Diane Robertson Diane Robertson, City Clerk I 12/3/09 AGREEMENT THIS AGREEMENT made and entered into this,,,i_14/day of December, 2009, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City") and Northstar Trust CompanyCs Trustee under Trust No. HTB 1866 (hereinafter referred to as the"Owner"); and d (�� $ 3-7 / %/72:1 /( WHEREAS, the Owner is the owner of the property commonly known as 1100 Brandt Drive, Hoffman Estates, Illinois 60192, such property being depicted and legally described on the plat of survey of such property attached hereto as Exhibit A (hereinafter referred to as the "Subject Property"); and WHEREAS,the Subject Property is not located within the corporate limits of the City but is located nearby the eastern boundary of the corporate limits of the City; and WHEREAS, a City water main is located in Brandt Drive in Elgin approximately 900 feet west of the Subject Property, such water main being depicted on the Water Main Atlas attached hereto as Exhibit B (such City water main is hereinafter referred to as the "Subject City Water Main"); and WHEREAS, the Owner has requested that the City allow the Owner at the Owner's expense to connect to the Subject City Water Main to provide City water service for the buildings located on the Subject Property; and WHEREAS, the City has requested that the Owner lease to the City another one of Owner's properties located on Brandt Drive to allow for use of such property by the City as a salt storage facility. NOW, THEREFORE, for and in consideration of the mutual undertakings as set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The Owner is hereby granted permission by the City to connect to the Subject City Water Main so as to provide City water service to the buildings on the Subject Property. The Owner's connection to the Subject City Water Main shall be performed in conformance with all applicable City ordinance requirements and other applicable requirements of law as determined by the City's Water Director and shall be at the sole cost and expense of the Owner without any cost or expense to the City. With the exception of the City's water meter, the improvements to be installed by the Owner east of the Subject City Water Main extending to the Subject Property shall be considered private service improvements to be owned and maintained by the Owner and to be installed in easements to be obtained by the Owner at Owner's expense. Prior to the connection by the Owner to the Subject City Water Main the Owner shall submit plans and specifications regarding such proposed connection to the City's Water Director for approval. Prior to such connection the Owner shall also pay all applicable charges and fees to the City as provided by City ordinances or otherwise provided by law. 2. The City water service as authorized herein shall be solely and only for the buildings on the Subject Property. It is the intention of the parties that the water service for the buildings on the Subject Property shall be only for the existing buildings on the Subject Property consisting of an office building, two mechanical shops and a security trailer and such buildings which replace such existing buildings, provided, however, the parties agree that the water service as authorized herein is not intended and shall not be utilized for a redevelopment of the Subject Property. The City water service to be provided by the City to the Owner for the buildings on the Subject Property pursuant to this Agreement shall be on a basis comparable to other applicable areas of the City bearing similar characteristics to the Subject Property it being agreed and understood that the water service referred to herein is intended as a general service only and that no special duty or obligation is intended nor shall be deemed to be created by this Agreement. The water service to be provided to the buildings on the Subject Property shall be subject to all applicable city ordinances and other regulations including, but not limited to, Title 14 of the Elgin Municipal Code, 1976, as amended. Water rates and fees for all water furnished by the City to the Owner shall be at the rates and fees in such amounts for properties located within the corporate limits of the City notwithstanding the Subject Property is not within the corporate limits of the City. Such water rates and fees shall be in the amounts as established from time to time by the City. Owner shall pay all charges and associated fees to the City when due for the water service provided by the City pursuant to this Agreement. 3. The City shall not be liable for damages, breach of contract or otherwise for failure, suspension, diminution, or other variation of water service occasioned by any cause beyond the control and without the fault or negligence of the City or its operating plant personnel. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the state or federal government in either its sovereign or contractual capacity, fires, flood, epidemics, quarantine restrictions, strikes or failure or breakdown of transmission or other facilities. The Owner agrees to hold and save the City harmless from any and all claims, damages, suits, causes of action and the like which may arise by virtue of this Agreement for any water sold pursuant to this Agreement. 4. In the event the providing of City water service to the buildings on the Subject Property requires amendments to facility planning areas, Owner shall at its cost apply for and obtain and such facility planning area amendments and the City agrees to reasonably cooperate in such efforts. 5. Concurrently with the entry into and execution of this Agreement the City and the Owner shall enter into and execute the Lease Agreement attached hereto as Exhibit C providing for the Owner's lease to the City of Owner's property on Brandt Drive described in the Lease Agreement for the use by the City as a salt storage facility. 6. The term of this Agreement shall be for twenty(20) years from the date and year first written above. Notwithstanding the foregoing, the Owner may teiiiiinate this Agreement, but not including the Lease Agreement attached hereto as Exhibit C, at any time upon thirty(30) days advance written notice to the City whereupon City water service to the Subject Property shall terminate. 2 7. Any notices which may be or are required to be given under this Agreement shall be sent by overnight courier or United States certified mail/return receipt requested, postage prepaid, and shall be addressed to the addresses and persons as set forth hereunder: If to the City: City Manager City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 With a Copy to: Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 If to Owner: Daniel R. Plote, President Plote Construction, Inc. P.O. Box 957825 Hoffman Estates, Illinois 60195 With a Copy to: Plote Properties, LLC 1141 East Main Street, Suite 100 East Dundee, Illinois 60018 Attention: Daniel L. Shepard 8. This Agreement shall not be deemed or construed to create an employment,joint venture,partnership, or other agency relationship between the parties hereto. 9. That the failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. 10. This Agreement may be modified or amended only in writing signed by both parties hereto,or their permitted successors or assigns, as the case may be. 11. This Agreement, and its exhibits, contains the entire Agreement and understanding of the parties hereto with respect to the subject matter as set forth herein. All prior Agreements and understandings have been merged herein and extinguish hereby. 12. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Owner, and, as such, this Agreement shall not be construed against the other party, as the otherwise purported draft of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 3 13. This Agreement is subject to and shall be governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 14. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto which consent may be withheld at the sole discretion of either of the parties hereto. 15. If either party fails or refuses to carry out any of the material covenants or obligations herein, the other party shall be entitled to pursue any and all available remedies as specified herein or as otherwise available at law, equity or otherwise. Notwithstanding the foregoing or anything else to the contrary in this Agreement, no action shall be commenced by the Owner or any other person or entity against the City or any of its officials, officers, employees, agents or any other related person or entity for monetary damages. IN WITNESS WHEREOF, the parties have entered into and executed this Agreement on the date and year first written above. CITY OF ELGIN, an Illinois NORTHSTAR TRUST COMPANY municipal corporation AS TRUSTEE UNDER TRUST NO. HTB1866 B3 BY41;e44-1.17A, It Mayor Its: (tat Officer rrf fficer Attest: tent%ler& Heretailnd Pk&A Partlivido City Clerk Mega!Dept\Agreement\Plote Construction-Water Service-Clean 12-3-09.docx 4 GENERAL DOCUMENT EXONERATION RIDER THIS DOCUMENT IS EXECUTED BY NORTH STAR TRUST COMPANY,NOT PERSONALLY BUT AS TRUSTEE UNDER TRUST NO.HTB 1866 AS AFORESAID,IN THE EXERCISE OF POWER AND AUTHORITY CONFERRED UPON AND VESTED IN SAID TRUSTEE,AND IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT NOTHING IN SAID DOCUMENT CONTAINED SHALL BE CONSTRUED AS CREATING ANY LIABILITY ON SAID TRUSTEE PERSONALLY TO PAY ANY INDEBTEDNESS ACCRUING THEREUNDER OR TO PERFORM ANY COVENANTS, EITHER EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO WARRANTIES, INDEMNIFICATION AND HOLD HARMLESS REPRESENTATIONS IN SAID DOCUMENT(ALL LIABILITY, IF ANY,BEING EXPRESSLY WAIVED BY THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS)AND THAT SO FAR AS SAID TRUSTEE IS CONCERNED,THE OWNER OF ANY INDEBTEDNESS OR RIGHT ACCRUING UNDER SAID DOCUMENT SHALL LOOK SOLELY TO THE PREMISES DESCRIBED THEREIN FOR THE PAYMENT OF ENFORCEMENT THEREOF,IT BEING UNDERSTOOD THAT SAID TRUSTEE MERELY HOLDS LEGAL TITLE TO THE PREMISES DESCRIBED THEREIN AND HAS NO CONTROL OVER THE MANAGEMENT THEREOF OR THE INCOME THEREFROM,AND HAS NO KNOWLEDGE RESPECTING ANY FACTUAL MATTER WITH RESPECT TO SAID PREMISES, EXCEPT AS REPRESENTED TO IT BY THE BENEFICIARY OR BENEFICIARIES OF SAID TRUST. IN EVENT OF CONFLICT BETWEEN THE TERMS OF THIS RIDER AND OF THE AGREEMENT TO WHICH IT IS ATTACHED,ON ANY QUESTIONS OF APPARENT LIABILITY OR OBLIGATION RESTING UPON SAID TRUSTEE,THE PROVISIONS OF THIS RIDER SHALL BE CONTROLLING. • • • PAGE OE LEGEND 11 u"u.s 0 151,11 MIIN .jf 4.1614!RISC am.un... 0In, 4 M1,/,.511.1, Mara z........17.7-r.= u O[IK• VI"PWi o• POVCR P0.[ e 4 SOIL WO. m GO ..01tr[.'r"r".,T,'i.27Z,`�41Z ;CAR= g Ina[i Lal • SIC. x • KIle s 1$I .nor meer...nau.."...r.Rr., rswr.a }.11041SCVS F3 Malan �..$.0.11•40.Sear.V[R V 4* 04004)10044 p 00..48 Sute.0..... m"4MIVi1.1 I SC1 neve,4R.C11 [4[41540 0 11010wSrNs ....!MS e' MKS-POS _Ov4R NC.S VIN. 0 1111S 0CI1411US w-N-E ,, 4+ I I a' fi �� I ..,. _. by I! LOCATION MAP hq 4 d s A • ��1ii { N 1# C 174" {wP/ a1�.�`tAl Vp a 3i e ri 452c j7� Dail a 1111 . ` � ^•..•i ii.�..0 S_� 1. .:..I.�T.. l `l I��%% —___S„�r E iErK4Ja.r., , . —..sem= R.Nusam sm F .tt ^m=:��r.'�d'? �MCHT�..r. 41.77• —zsr= .. LIR1..o L'EI.N,tz..ur. 1 BENCHMARKS SURVEY'NOTES UTILITY INFORMATION > B. Oa-ecru , " •••.sw r. e r n.sne ann.. 1109 DRR.WDT DRIVE Msa m iAm elsemr Jr.40,401.11,10 rorPOO.mrPaa.I...mK.w ��..r.,..K�...�..w.r�R �� ELGIN ILLINOIS 400120 .,"r ..•.,... oare .r., m _ `r.." ,«.e°,i Vies . ..... :rove 4.r." 1 N Of ...,.;w r rla n.,.e,r o .0 ..,ar Aitil.""°K..fi.' ;`+a'CUMIN ..: .".,.r w ,,...ti=P"" �.::?s".g'',"wr"v krlI.er """"..[r...,2.":.r ....Yr.Vita. .K.....Y*v. ,.. ... a ...Nit� :u w•era. Aantr.ma m(,,,P,,5.4,1 ... . ., r....r.w.,. v....R.4....,......_«._.,.... y-=11,t!^-:-hnua--r"^�P`'.SVti ALT.AjAC.S.K LAND TITLE SURVEY EXHIBIT A Watermain Atlas N �'EI • W ,`rsvi S I ,,. ,,, 1 .1 Legend WMw.uN Imong MOH W ,n, a __ BRA DT DR _ H 84 c4 14 w 8 Plote o - Administrative .- .° f Approx. 900' Offices _ , „o,,,,, t2 � _ � 0 R,�ZSc. E - 190EB 190WB CD — I- RV'S EN M— o. I I in ICIIMILIV •r•,,..'; — 0 0 -0 0 190 EB EXIT r /ow /LT- ii y -' ,,..� alm z . • sin o :,• '•tt'�++�'ri .5901.' 4 - Z