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HomeMy WebLinkAbout98-254 A Resolution No. 98-254 't RESOLUTION AUTHORIZING EXECUTION OF AN EASEMENT AGREEMENT WITH INDUSTRIAL DEVELOPMENTS INTERNATIONAL INC. FOR THE TYLER CREEK INTERCEPTOR SEWER PHASE 5 PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Kevin Kelly, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an Easement Agreement with Industrial Developments International Inc . , for the property legally described on Exhibit 1 for the Tyler Creek Interceptor Sewer Phase 5 Project, a copy of which is attached hereto. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the Easement Agreement to be recorded in the office of the Recorder of Deeds of Kane County, Illinois . s/ Kevin Kelly Kevin Kelly, Mayor Presented: October 14 , 1998 Adopted: October 14 , 1998 Omnibus Vote: Yeas 6 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk EASEMENT AGREEMENT r € ; ; RECORD .. .' ";T Y.ILL. -THIS AGREEMENT, dated as of this 31st 98K 1 1377 1 9 DEC a,9 PM 12: 00 day of July 1998 between INDUSTRIAL DEVELOPMENTS INTERNATIONAL ' ‘'r�7 """! HEtt INC., a Delaware corporation ("Owner") 1Ap ���� and the CITY OF ELGIN, ILLINOIS, an Illinois municipal corporation ("City"). RECITALS A. The Owner is the owner, in fee simple, of the Permanent Easement Parcel and Temporary Easement Parcel, each as hereafter defined. B. The City seeks to construct, maintain and operate within the Permanent Easement Parcel, that sanitary sewer interceptor known as the Tyler Creek Interceptor Sewer, Phase 5 (the "TCIS-5"). C. The Permanent Easement Parcel is a part of a larger parcel of property which is owned by the Owner and which was annexed into the City pursuant to a certain Annexation Agreement dated March 27, 1997, the execution of which was approved by the City's Resolution No. 98-34 (the "Annexation Agreement"). D. The City has requested that Owner grant the Permanent Utility Easement (hereafter defined) to the City for the construction of the TCIS-5 (hereafter defined). In return, the Owner has requested that the City agree to certain amendments to the Annexation Agreement. CONSIDERATION NOW, THEREFORE, in consideration of the execution by the parties of the First Amendment to 0o the Annexation Agreement bearing even date herewith of the mutual observance by the parties of their respective covenants and obligations as set forth herein, and of Ten Dollars and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed as follows: 1!J AGREEMENT 1. Grant of Permanent Utility Easement. On the terms and conditions and subject to the reservations set forth herein, Owner does hereby grant to the City the permanent right and easement ("Permanent Utility Easement") over that portion of Owner's property described as "40 Foot Sanitary Sewer Easement" on the Plat of Easement attached hereto as Exhibit 1 attached hereto (the "Permanent Easement Parcel") for the sole and exclusive purpose of constructing, maintaining, repairing and replacing the TCIS-5. W:\WO 27asz.3 1 _98 K 11377 1 33,00 2. Grant of Temporary Construction Easement. On the terms and conditions set forth herein, Owner hereby grants to the City the right and easement (the "Temporary Construction Easement") to use that portion of Owner's Property described as "150 Foot Temporary Construction Easement" on the Plat of Easement attached hereto as Exhibit 1 (the "Temporary Easement Parcel") exclusively for the activities of access, equipment storage, stockpiling and other construction purposes reasonably related to the initial construction of the TCIS-5 within the Permanent Easement Parcel. 3. Construction Schedule for TCIS-5: Expiration of Easements. The City covenants and agrees to construct and install the TCIS-5 within the Permanent Easement Parcel at the City's expense in accordance with the following schedule: (a) On or before August 31, 1999, the City shall, at its expense, cause to be installed within the Permanent Easement Parcel that portion of the TCIS-5 which, according to the plans of Baxter & Woodman dated January 15, 1998 and captioned "Sanitary Sewer System Improvement: Tyler Creek Interceptor-Phase 5" (the "Baxter Plans") is to be extended from the southeast corner of the Permanent Easement Parcel to that manhole designed as "manhole 37" on the Baxter Plans (such portion of the TCIS-5 to be installed to manhole 37 being hereinafter called the "Primary Extension"). The completion by the City of the Primary Extension by the date aforesaid is of the essence of this Agreement. Additionally, the parties acknowledge that the execution of this Easement Agreement by the parties and the covenants of the City as contained in this paragraph 3(a) shall relieve the Owner of any obligation to construct any portion of the said TCIS-5 as otherwise contemplated or provided for in the Annexation Agreement dated March 27, 1997 between the Owner and the City. (b) Until December 31, 2002 the City, at its election, may at its expense extend the TCIS-5 beyond manhole 37 within the Permanent Easement Parcel, but shall not be required to do so. (c) It is hereby agreed that: (i) As of January 1, 2000 the Temporary Construction Easement shall expire. The parties acknowledge that the City's right to continue to install additional sanitary sewer line within the Permanent Easement Parcel may continue until January 1, 2003 (as provided in paragraph 3(c) below), but such installation work after such date shall be done by the City without the benefit of the Temporary Construction .Easement; and (ii) The Permanent Utility Easement shall expire and shall be deemed to be released, as to any portion of such Easement Parcel in which no part of the TCIS-5 has been installed as of January 1, 2003 (such portion being hereinafter called the "Unused Easement Parcel"). The City agrees to promptly deliver to Owner such certifications, releases of the like as Owner may reasonably require in order to release of record the City's Permanent Utility Easement rights as to any Unused Easement Parcel. W:\WORK\27445\2.3 2 t.r_98 K 113 7 71 . " s (d) All portions of the Permanent Easement Parcel (other than Unused Easement Parcel, if any) shall be permanent in nature and shall continue until such time, if any, as it may be released in writing by the City Board or its successors. 4. Further Covenants and Agreements Pertaining to the Permanent Utility Easement and Temporary Construction Easement. The Permanent Utility Easement and Temporary Construction Easement are subject to the following additional covenants, agreements and restrictions: (a) The City shall not cause any above-ground structures to be constructed on the Permanent Easement Parcel or Temporary Easement Parcel; provided, however, that ground-level manholes and water "buffalo boxes" may be so installed on the Permanent Easement Parcel to the extent reasonably required by good engineering practices. (b) In connection with the construction of the TCIS-5, the City shall, at its expense: (i) install two drop-manholes so as to permit connection to the said TCIS-5 from the sanitary sewer mains and/or laterals otherwise serving the adjacent industrial park of the Owner commonly known as the Elgin Corporate Center. The location and elevation of these two manholes shall be as mutually agreed between the City and Owner; and (ii) install, at not more than two (2) locations specified by the Owner to the City on or before October 31, 1998 upgrades (such as sleeves and/or reinforced pipe) appropriate to protect the underground sewer pipe from damage as a result of the installation and use of rail crossings at such locations. (c) The City shall not undertake any activity on the Permanent Easement Parcel or the Temporary Easement Parcel which (i) violates any law, regulation, code or ordinance, (ii) constitutes a public or private nuisance, or (iii) otherwise is contrary to or in excess of the easement rights granted herein. (d) The City shall at all times indemnify, defend and hold Owner and Owner's successors, assigns and grantees harmless from and against any and all claims, demands, damages, liabilities, costs and expenses (including reasonable attorney's fees) arising out of or in connection with (i) any work now or hereafter performed by the City (whether directly or through contractors or subcontractors) in connection with the construction, maintenance, replacement and/or repair, from time to time, of the TCIS-5, (ii) any act or omission taken by the City or its employees, agents, contractors or subcontractors with respect to the Permanent Easement Parcel and/or the Temporary Easement Parcel, (iii) any damage which may occur as a result of the failure by the City to properly construct or maintain the TCIS-5, or (iv) the breach by the City of any of its covenants or obligations hereunder. In connection therewith, the City shall, before commencement of any construction activities on the Permanent Easement Parcel or Temporary Easement Parcel, deliver to Owner a certificate of insurance showing that Owner is named as an additional W:\WORK\274452.3 3 3 98KI1377I . c insured under a policy of insurance insuring against liability arising out of bodily injury, death or property damage in a combined single limit of not less than $3,000,000.00, and such insurance coverage shall be kept in force by the City for the duration of such construction activities by the City. 5. Reservations in Favor of Owner: City's Repair Obligations. (a) It is acknowledged and agreed that Owner shall have the right to commence development activities and the construction of buildings (collectively "Development Activities") within the Elgin Corporate Center Subdivision. (b) In connection with Owner's Development Activities, and subject to paragraph 5(c) below, the Owner reserves unto itself, its successors, grantees and assigns the right to make grade changes to the easement parcels and/or to erect upon or under the surface of the Permanent Easement Parcel and/or Temporary Easement Parcel such facilities and improvements which (i) do not unreasonably interfere with the City's easement rights hereunder and (ii) the Owner, in its sole discretion, deems necessary or appropriate in connection with the development of the Elgin Corporate Center Subdivision, including, without limitation, utility pipes and lines, rail crossings, 'streets, vehicular parking areas, outside storage areas, fencing, storm water detention/retention facilities and other improvements(collectively "Permitted Improvements"). Notwithstanding the foregoing, the Owner shall not erect any buildings upon the Permanent Easement Parcel. (c) The Owner covenants and agrees that until January 1, 2000, Owner's Development Activities and any Permitted Improvements erected or installed by Owner on the Permanent Easement Parcel and/or Temporary Easement Parcel shall be done in such a way as to not unreasonably interfere with the easement rights herein granted to the City for the original installation of the TCIS-5 on the Permanent Easement Parcel. (d) The City and its contractors and agents shall at all times exercise the easement rights herein granted in good faith and in such a manner as to reasonably accommodate Owner's Development Activities and the installation by the Owner of Permitted Improvements. (e) The City at its expense, shall repair or replace any Permitted Improvements located on the Permanent Easement Parcel or the Temporary Easement Parcel which City may damage in the course of the installation, maintenance, replacement or repair of the TCIS-5, and shall otherwise restore the ground to its original grade and compaction. 6. Miscellaneous. (a) This Agreement together with the Annexation Agreement, as amended, constitutes the entire agreement of the parties with respect to the grant to the City of the W:\WORIC\274452.3 4 Lf L- :98K 1 13771 • . • r Permanent Utility Easement and the Temporary Construction Easement. (b) This Agreement shall be governed and construed in accordance with the laws of the State of Illinois. (c) This Agreement shall be binding upon, and shall inure to the benefit of the parties hereto and their respective successors, assigns and grantees. (d) This Agreement is and shall be deemed and construed to be the joint and collective work product of City and Owner and, as such, this Agreement shall not be •construed against either party, as the otherwise purported drafter 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. IN WITNESS WHEREOF, the parties hereto have executed this Easement Agreement as of the date first set forth above. INDUSTRIAL DEVELOPMENTS INTERNATIONAL INC. CITY OF ELGIN, ILLINOIS 111111 By: A . IL , i mon/ By: Its f Mayor TIMAThVJ.CUNTER EGRET Y Attest: idh-yvv-47 City Clerk • W:\WORK\n445\2 3 5 98 377 . _ 62%-00-140/4 STATE OF 44444048, ) c4L43 ) ss. COUNTY OF HJPACE ) BEFORE ME, the undersigned Notary Public, duly commissigned and qualified in and for said County and State, personally came and appeared MINN JT. wearot , to me known, who declared and acknowledged to me, that he is the k of INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC., that as such a duly authorized officer and with full authority, he signed and executed the foregoing instrument as the free and voluntary act and deed of said INDUSTRIAL DEVELOPMENTS INTERNATIONAL, INC., and for the objects and purposes therein set forth. ti ''fit,43y hand and notarial seal this /( day of 0GO Q��G , 1998. `.?.;A1/4 ..•••..y ti(�ld� ,•rte. V .•vIOTAF , . a 5 eatae: A/ ▪rn• •, "Us00 .�• NOTARY PUBLIC °17.17-- N s ` Nay public,DeKaib County,Georgia My Commission Expires Sept.24,2002 STATE OF ILLINOIS ) ss. COUNTY OF KANE ) BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in and for said County and State, personally came and appeared KEVIN KELLY, MAYOR OF THE CITY OF ELGIN AND DELONNA MECUM, CLERK OF THE CITY OF ELGIN, each known to me to be the Mayor and City Clerk, respectively, and acknowledged to me, that they with the authority of the City Council of the City of Elgin, signed and executed the foregoing Easement Agreement as the free and voluntary act and deed of the City of Elgin, and for the objects and purposes therein set forth. Given under my hand and notarial seal this tq day of o -e 998. 4 NANCY ROLL '4 NOTARY PUBLIC, STATE OF ILLINOIS \--- 4),..we,L.Le. y CommisAu r®�Ir sIr XY r� 41,N/P2,1111P)11 NOTARY PUBLIC THIS DOCUMENT PREPARED BY: AFTER RECORDING RETURN TO: Attorney Peter C. Bazos f� William A. Cogley SCHNELL, BAZOS, FREEMAN & KRAMERAttorney at Law 1250 Larkin Ave. g City of Elgin Elgin, IL 60123 �'5•� 150 Dexter Court Elgin, Illinois 60120-5555 (847) 742-8800 l0 W:\WORK\27445\2.3 6 .se K Ilk t1►3 7 i i1