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HomeMy WebLinkAbout06-96 Resolution No. 06-96 RESOLUTION RATIFYING THE EXECUTION OF AN AGREEMENT REGARDING DETENTION BASIN EASEMENT WITH ELGIN REALTY PARTNERS LLC FOR PROPERTY AT RANDALL ROAD AND COLLEGE GREEN DRIVE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it hereby ratifies and approves the execution of an Agreement Regarding Detention Basin Easement with Elgin Realty Partners LLC by Ed Schock, Mayor, and Dolonna Mecum, City Clerk, for the property at Randall Road and College Green Drive, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock,Mayor Presented: April 26, 2006 Adopted: April 26, 2006 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk 4/18/06 AGREEMENT REGARDING DETENTION BASIN EASEMENT This Agreement entered into this day of April, 2006 by and between the City of Elgin, a municipal corporation ("City") and Elgin Realty Partners LLC, an Illinois limited liability company("Purchaser"). WHEREAS, the City and Monroe Investment Partners LLC ("Monroe") entered into a certain Purchase and Sale Agreement ("Contract") dated September 22, 2004, relating to certain real property located at the northeast corner of Randall Road and College Green Drive in the City of Elgin, Illinois,which is legally described on Exhibit A hereto (the "Property"). Pursuant to an Assignment and Assumption of Purchase and Sale Agreement dated October 13, 2004, Monroe assigned its interest under the Contract to Purchaser and Purchaser assumed the obligations of the purchaser thereunder; and WHEREAS, the City and Purchaser entered into a First Amendment to the Contract dated March 23, 2005, a Second Amendment to the Contract dated September 14, 2005, and a Third Amendment to the Contract dated December 21, 2005; and WHEREAS, pursuant to the Second Amendment to the Contract, certain additional real estate was added to the transaction, which is depicted on the proposed Plat of Subdivision of Spartan Green Subdivision as Lot 10 (and is hereafter referred to as"Lot 10"); and WHEREAS, Purchaser intends to use Lot 10 for a stormwater detention facility; and WHEREAS, Lot 10 is currently encumbered by a nonexclusive stormwater detention basin easement in favor of the Woodbridge North Townhome Association, as successor in interest to Westfield Homes of Illinois, Inc., an Illinois corporation ("the Condominium Association"), created pursuant to that certain "Agreement Respecting Road Construction, Maintenance and Easements and Drainage Easements" recorded March 15, 1994 as Document No. 94 K 022927 and re-recorded June 14, 1994 as Document No. 94 K 048547 and by that certain Grant of Drainage Easement recorded December 20, 1993 as Document No. 93 K 102924 (such stormwater detention basin easement located in part on Lot 10 is hereinafter referred to as the "Detention Basin D"); and WHEREAS, as part of the City's planned extension of the public street Spartan Drive to the east the City intends to relocate Detention Basin D as depicted in the current draft of the Engineering Plans for the Spartan Drive Extension Project Phase 2, prepared by Crawford, Murphy and Tilly, Inc.; and WHEREAS,a portion of Detention Basin D is located on part of the Lot 10; and WHEREAS, the Purchaser requires the use of Lot 10 for stormwater detention purposes for its proposed development of the Property, and WHEREAS, the current storage volume provided in Detention Basin D is approximately 7.0 to 7.5 acre feet with the storage volume required for the Condominium Association property being approximately 3.4 acre feet; and WHEREAS, Purchaser's proposed development of the Property including Lot 10 would result in the an increase in the total storage volume of Detention Basin D to between 10 and 10.5 acre feet and Purchaser's proposed use of the Property would require the use of approximately 4.4 acre feet of storage in Detention Basin D, leaving approximately 5.6 to 6.1 acre feet available for the Condominium Association property and other property which is tributary thereto; and WHEREAS, Detention Basin D was originally designed to provide stormwater detention for not only the Condominium Association Property but also a portion of other certain surrounding properties including a portion of the Property; and WHEREAS, as a condition of the Closing of the purchase of the Property, Purchaser has required the City enter into this agreement with respect to Detention Basin D. NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The City agrees that the Purchaser may use Lot 10 for a stormwater detention facility as provided in the Final Engineering Plans for the Property as approved by the City Engineer. The parties currently estimate that the Purchaser's development of Lot 10 for a stormwater detention facility will increase the total storage volume of Detention Basin D to between 10 and 10.5 acre feet and Purchaser's proposed use of the Property will require the use of approximately 4.4 acre feet of storage in Detention Basin D, leaving approximately 5.6 to 6.1 acre feet available for the Condominium Association property and other property which is tributary thereto. 2. Following the Closing, the City shall take all reasonable steps to provide for the relocation of Detention Basin D as part of the City's Spartan Drive Extension Project Phase 2. The City shall provide Purchaser with a fully executed copy of the document providing for the relocation of Detention Basin D and the release thereof with respect to Lot 10 in recordable form executed by the Condominium Association or other parties with an interest in Detention Basin D within seven (7) days after the full execution of same and shall provide a copy showing the recording stamp within seven(7)days after the recording thereof. 3. If the City cannot obtain the consent of the Condominium Association or other parties with an interest in Detention Basin D to relocate Detention Basin D and to execute a document providing for such relocation and the release thereof from title to Lot 10 within one(1) year after the Closing, as defined in the Contract, the City agrees, as determined by the City, to either: (1) modify the remaining portion of Detention Basin D which does not include Lot 10 or the Spartan Drive right-of-way so as to accommodate all of the offsite detention rights of the Condominium Association property and the property of other persons with an interest in Detention Basin D in and to Detention Basin D; or(2) to the full extent permitted by law, to use its eminent domain power to acquire and/or relocate that portion of Detention Basin D which is located on Lot 10. Upon completion of any such eminent domain proceedings, the City shall either terminate that portion the stormwater detention basin easement rights of Detention Basin D which is located on Lot 10 or deliver an assignment thereof to Purchaser in return for consideration of$10.00. 4. The City agrees that in the event the City proceeds with the construction of Phase 2 of the City's Spartan Drive Extension Project prior to having completed any of the 2 undertakings regarding Detention Basin D as described in the preceding Sections 2 and 3 hereof, the City agrees to allow the Purchaser (and Lowe's Home Centers, Inc. as to Lot 2) to nonetheless continue with the proposed development and intended use of the Property, including Lot 10, (and including development of Lot 2 pursuant to the approvals granted by the City) as long as such activities are conducted in accordance with the final engineering plans for the Property as approved by the City Engineer and in accordance with other applicable requirements of law. The City also agrees that in the event the City proceeds with the construction of Phase 2 of the City's Spartan Drive Extension Project prior to having completed any of the undertakings regarding Detention Basin D as described in the preceding Section 2 and 3 hereof, concurrently with the construction of that portion of Phase 2 of the Spartan Drive Extension Project located within Detention Basin D to modify if and as necessary the remaining portion of Detention Basin D which does not include Lot 10 or the Spartan Drive right-of-way so that said remaining portion of Detention Basin D shall at all times have sufficient capacity to accommodate all of the off- site detention rights of the Condominium Association and the property of other persons with an interest in Detention Basin D . The City further agrees that in the event the City proceeds with the construction of Phase 2 of the City's Spartan Drive Extension Project prior to having completed any of the undertakings regarding Detention Basin D as described in the preceding Sections 2 and 3 hereof, and the Condominium Association files any legal action attempting to enjoin or restrain the Purchaser's development of Lot 10 that the City will proceed as soon as is reasonably practicable and to the full extent permitted by law to use its eminent domain power to acquire and/or relocate that portion of Detention Basin D which is located on Lot 10. 5. Purchaser hereby grants to the City a temporary construction easement on Lot 10 to allow the City, its employees, agents and contractors to enter upon, grade and fill that portion of Lot 10 as is necessary for the construction of the extension of Spartan Drive, including the north road embankment thereof. The term of this temporary construction easement shall expire within twelve (12) months from the date the City commences construction on Phase 2 of the Spartan Drive Extension Project, unless further extended by the parties hereto. 6. This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and the Purchaser and, as such, this Agreement shall not be construed against any party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict in the terms or provisions, if any, contained herein. 7. The provisions of this Agreement shall survive the Closing of the sale of the Property from the City to Purchaser and shall not be merged or expunged by the Closing or the recording of the deed for the Property. This Agreement shall be construed under the laws of the State of Illinois. The parties agree that venue shall be proper only in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. This Agreement shall be enforceable in the. Circuit Court of Kane County (by Lowe's Home Centers, Inc., as a third party beneficiary, as well as by Purchaser) by appropriate action to secure the performance of the agreements herein contained. Notwithstanding the foregoing or anything to the contrary in this Agreement, no action may or shall be commenced by the Purchaser and/or by Lowe's Homes Centers, Inc. and/or any of their successors and/or assigns against the City for monetary damages. 8. This Agreement may be executed in counterparts, each of which shall be deemed an original,but both of which together shall constitute one and the same instrument. 3 IN WITNESS WHEREOF, the parties have executed this Agreement effective the date and day first written above. SIGNATURE PAGE FOLLOWS 4 CITY OF ELGIN ELGIN REALTY PARTNERS LLC, an Illinois limited liability company By its Manager, Monroe Asset Management Mayor — LLC, an Illinois limited liability company Attest: i91,^-12 h By: City Clerk Thomas R. Brashler, its Manager F•\Legal Dept\Agreement\ElginRealtyPariners-DetentionBasinEasement-clean 4-18-06 doc 5