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06-3 Resolution No. 06-3 RESOLUTION AUTHORIZING EXECUTION OF AN EASEMENT AGREEMENT FOR EXTENSION OF SEWER AND WATER LINES IN THE NORTHWEST EXPANSION AREA FROM MB FINANCIAL BANK, N.A. AS SUCCESSOR TRUSTEE UNDER TRUST AGREEMENT DATED FEBRUARY 16, 1970 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an easement agreement.for the extension of sewer and water easements in the northwest expansion area from MB Financial, N.A., as Successor Trustee under Trust Agreement dated February 16, 1970, 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/Ed Schock Ed Schock, Mayor Presented: January 11, 2006 Adopted: January 11, 2006 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk f Agenda Item No. City of Elgin . fiil._ !till Ilfl � u December 16' 2005 � curl TO: Mayor and Members of the City Council 'FINANCIALLY STABLE CITY GOVERNMENT 'F.FFIC.IFNT SE WILES. AND OUALIT YIN FRASTRUCTURE _ FROM: Olufemi Folarin, City Manager William A. Cogley, Corporatio Counsel SUBJECT: Easement Agreement and Agreement to Grant Easement with MB Financial Bank N.A. as Trustee for Extension of Sewer and Water Lines in the Northwest Expansion Area PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information on a proposed easement agreement and agreement to grant an easement with MB • Financial Bank as Trustee for the extension of sewer and water easements in the northwest expansion area. RECOMMENDATION It is recommended that the City Council approve the proposed easement agreement and agreement to grant easement with MB Financial Bank as Trustee. BACKGROUND In 2004 Crown Community Development negotiated an easement agreement and an agreement to grant an easement for sewer and water easements with the property owner of property near Russell Road and Plank Road. The easements relate to the to-be constructed Phases 5A and 5B of the Otter Creek Interceptor Sewer and Water Main. The City Council previously approved the original easement agreement an agreement to grant easement. During the final engineering of the public improvements Crown Community Development realized it needed additional easements from the subject property owner. Crown Community Development has negotiated an additional easement agreement and an agreement to grant an easement with the same property owner. Copies of the proposed easement agreement and agreement to grant an easement are attached. Title to this property is held by MB Financial Bank as Trustee. • Easement Agreement and Agreement to Grant Easement with MB Financial Bank N.A. as Trustee for Extension of Sewer and Water Lines in the Northwest Expansion Area December 16, 2005 • Page 2 The agreement to grant an easement provides that Pingree Creek LLC will pay to the property owner $2,000 for the additional easements. Pingree Creek LLC is Crown's development entity for the Crown Community Development property. The City's annexation agreement for the Crown Community Development.property provides in Section 5 that in the event the developer is required to pay monies to third property owners for the acquisition of off--site easements for the referenced sanitary sewer line or the referenced_water line the City will agree, following the completion of the construction of such improvements, to enact a recapture ordinance which will entitle the developer to recover from other properties benefited by the sewer line and water line their proportionate share of the costs of such easements. Pursuant to such provision in the annexation agreement, the City has agreed to adopt a recapture ordinance as part of the public improvements construction agreement for the construction of the subject public improvements to allow Pingree Creek LLC to.recover the costs of the subject easements. The agreement to grant an easement provides that Pingree Creek LLC is waiving its right to recapture costs for .the subject sanitary sewer line from the owner of the subject property. The agreement to grant an easement has similar terms to the agreement to grant easement that the city approved in 2004. For a period of 36 months from the date of the execution of the subject easement; the city agrees to reserve specified sewer and water capacities within the easement pipes to accommodate future development of grantor's property. The agreement further provides for the city to take all necessary action to include the remainder of grantor's property in the city's • sanitary sewer, service area. The grantor's property consists of approximately 576 acres. The city's earlier FPA expansion for the northwest area utilized Plank Road as the south boundary thereby leaving approximately 190 acres of the grantor's property south of Plank Road out of the approved FPA. The city is proceeding with an application to the Northeastern Illinois Planning Commission requesting the inclusion of the remainder subject property within the city's sanitary sewer service area. Pingree Creek has also agreed to pay.to the property owner payments totaling an estimated $29,200 to reimburse the property owner for professional services related to the review and approval of the FPA expansion. In the.event the owners of the grantor's property seek annexation into the City, the agreement to grant an easement requires compliance with all pre-annexation, annexation and zoning requirements as may be established from time to time by the City and the Fox River Water Reclamation District. The agreement includes a further disclaimer that the execution of the agreement to grant easement or the easement agreement shall not obligate either the City or the Fox River Water Reclamation District to consent to the future annexation of grantor's property nor to approve any utility service, zoning or land use categories or entitlements of any kind whatsoever related to the future development of grantor's property. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. • Easement Agreement and Agreement to Grant Easement with MB Financial Bank N.A. as Trustee for Extension of Sewer and Water Lines in the Northwest Expansion Area December. 16, 2005 • Page 3 FINANCIAL IMPACT None. -LELLIMPACT N�O<one. ALTERNATIVES 1. Approval of the easement agreement and agreement to grant easement. 2. Do not approve the easement agreement and agreement to grant easement. Respectfully submitted for Council consideration. WAC/mg Attachment • c This Instrument Prepared By and Return After Recording to: William A. Cogley City of Elgin Legal Department 150 Dexter Court Elgin, IL 60120-5555 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made and entered into this day of ,L��'r�-f_ y 2004p, by and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the "City") , and MB FINANCIAL BANK, N.A. , as Successor Trustee under the provisions of a Trust Agreement dated February 16, 1970 (hereinafter referred to as the "Grantor") . WITNESSETH WHEREAS, Grantor owns the real property legally described on Exhibit "A" attached hereto and depicted as Tracts F, G and H on the Plat of Easement prepared by Cemcon, ltd. , of Aurora, Illinois, dated March 8, 2004 , last revised August 25, 2005, attached hereto as Exhibit "D", in Kane County, Illinois (the "Grantor ' s Parcels") ; and WHEREAS, the City of Elgin desires to obtain easements from Grantor for the purpose of installing, constructing, operating, using, maintaining, locating, upgrading, repairing, replacing or removing sanitary sewer lines and water main improvements and other appurtenances related thereto over a portion or portions of the Grantor ' s Parcels; and WHEREAS, Grantor has agreed to grant such easements for such purposes pursuant to the terms and conditions of this Easement Agreement . NOW, THEREFORE, for and in consideration of Ten Dollars ($10 . 00) - in hand paid to Grantor, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows : 1 . Sewer and Water Easements . That Grantor, being the owner of the Grantor ' s Parcels referenced herein, does hereby grant to the City of Elgin, an Illinois municipal corporation (the "City") , permanent and exclusive (except as set forth in Paragraph 5 hereof) easements (the "Sewer and Water Easements") to install, construct, operate, use, maintain, locate, upgrade, repair, service, remove, or replace sanitary sewer lines and water mains, and other appurtenances relating to sanitary sewer lines and water mains in, upon, and under those portions of the Grantor' s Parcels identified as Tract F and Tract G being legally described on Exhibit A attached hereto and being depicted on Exhibit D attached hereto (hereinafter referred to as the "Easement Premises" ) . 2 - 2 . Temporary Construction Easements . That Grantor does hereby further grant to the City a temporary construction easement over that portion of Grantor ' s Parcels identified as Tract H being legally described in Exhibit A attached hereto and being depicted on Exhibit D attached hereto (hereinafter referred to as the "Temporary Construction Easement Premises") allowing access over and use of said Temporary Construction Easement Premises for the purpose of constructing the sanitary sewer and water main improvements on the above-described Easement Premises . The Temporary Construction Easement hereby granted shall be deemed terminated upon the completion of the original construction of the sanitary sewer line and water main improvements in the Easement Premises but in any event shall automatically expire five (5) years from the date and year first written above . 3 . - Restoration of Easement Premises and Temporary Construction Easement Premises . That following the exercise by the City of any easement rights granted herein, the City shall promptly repair and restore the Easement Premises or the Temporary Construction Easement Premises to the same condition as existed immediately prior to the existence of such rights as is reasonably practicable and shall leave the Easement Premises 3 - and the Temporary Construction Easement Premises and surrounding premises free from debris . 4 . Indemnification . That the City for itself, its agents and independent contractors, hereby agrees to indemnify and hold Grantor and its successors harmless from any and all third party claims for personal injuries or property damage arising directly as a result of the City' s work in the Easement Premises and the Temporary Construction Easement Premises during construction or during any subsequent maintenance or repair thereof . The City further agrees to indemnify and hold harmless Grantor from any and all liens placed against the Easement Premises or the Temporary Construction Easement Premises arising from said construction activities . 5 . Restrictions : Reservations . That the Grantor and the Grantor' s successors shall not construct any buildings on the Easement Premises nor undertake any other activities on the Easement Premises which unreasonably interfere with the City' s intended use of the Easement Premises . Anything contained in this Agreement to the contrary notwithstanding, it is understood that the Grantor shall have (and hereby reserves) the right to (i) construct or otherwise install surface improvements other than buildings consisting of parking lot improvements, private or publicly dedicated streets, sidewalks, bicycle and pedestrian 4 - paths and landscaping and (ii) install utility lines which cross perpendicularly through the Easement Premises as reasonably required to service the development on the Grantor ' s Parcel, provided that such is done in manner which does not unreasonably interfere with the City' s intended use of the Easement Premises . 6 . Time and Notices . Except in the event of an emergency, City shall give Grantor reasonable prior notice of their intention to perform work on the "Temporary Construction Easement" and/or "Permanent Easement" . In those cases where the City needs access to the Easement Premises through portions of Grantor ' s adjacent property that is outside the Easement Premises, City shall notify Grantor of such need not less than three (3) business days prior to such entry, such entry shall be subject to Grantor ' s prior consent, which consent shall not be unreasonably withheld and/or delayed, and such entry shall be at such reasonable times as agreed by Grantor and the City. 7 . Amendment . That no amendment, revisions, or modification hereof shall be effective unless it is in writing and signed by all parties hereto. 8 . Entire Agreement . The parties hereto acknowledge that they have entered into an Agreement to Grant Easement of even date . Except as set forth in said Agreement to Grant Easement, this Easement Agreement constitutes the entire agreement between 5 - the parties and is intended as a complete and exclusive statement of the terms of the parties agreement, and it supersedes all prior and concurrent promises, representations, proposals, negotiations, discussions, and agreements that may have been made in connection with the subject matter hereof . 9 . Applicable Law. That this Easement Agreement shall be governed by and construed in accordance with the laws of the State of Illinois . 10 . Contractors . That it is understood and agreed that the City may utilize the services of third party contractors, employees, or other agents to perform work in either the Easement Premises or the Temporary Construction Easement Premises . 11 . Warranty of Title . That the Grantor hereby represents and warrants to the City that it is the fee simple title holder of the Easement Premises and the Temporary Construction Easement Premises and that it has the full power and authority to enter into and make the grant of easement as provide herein. 12 . Binding . That this Easement Agreement shall be binding on the parties hereto, their successors and permitted assigns and shall run with the land. - 6 - 13 . Recording. That this Easement Agreement shall be recorded by the City at the City' s cost with the Kane County Recorder. 14 . Joint Preparation. This Easement Agreement is and shall be deemed and construed to be the joint and collective work product of the Grantor and the City and, as such, this Easement 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 . 15 . Release of Easement . The City may terminate this instrument by recording a release in recordable form with directions for delivery of same, whereupon all rights, duties, and liabilities hereby created shall cease and be of no further force or effect . In the event of discontinuance by the City of the use of the Easement Premises for the purposes granted herein and the failure of the City to reinstate such use within three (3) years of the initial discontinuance thereof, the City shall terminate this instrument by recording a release in recordable form with directions for delivery of same, whereupon all rights, duties, and liabilities hereby created shall cease and be of no further force or effect . For convenience, such instrument may - 7 - run in favor of "the owner or owners and parties interested in the Grantor' s Parcel . " IN WITNESS WHEREOF, the parties have entered into and executed this Easement Agreement on the date and year first written above . CITY OF ELGIN, an Illinois MB FINANCIAL BANK, N.A. , municipal corporation as Successor Trustee aforesaid By By ayor Its Vice-President Attest: Attest: City Clerk Its Vice-President STATE OF ILLINOIS ) SS . COUNTY OF K A N E ) I, the undersigned, a Notary Public, in and for said County, in the State aforesaid, do hereby certify that Ed Schock, Mayor, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his free and voluntary act of the uses and purposes therein set forth. Given under my hand an official seal, this day Of FATUA�Z j 2006 tary blic — 8 — .!FNNIF`_ Qt-JN 7 O My coin,nissc, 0860/08 ' A STATE OF ILLINOIS ) SS . COUNTY OF K A N E ) I, the undersigned, a Notary Public, in and for said County, in the State aforesaid, do hereby certify that F-rumeS A , Foto , , and �l n ` tjk,(C,- k2 Cy-c,0\,) , are personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their free and voluntary act of the uses and purposes therein set forth. r Given under my hand an official seal, this "J}� day of 2005 . T " OFFICIAL SEAL" AA SARAH F. SCHMIDT N ary Publi NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 6/18/2007 F:\Legal Dept\Agreement\Easement-MB Financial.doc 9 - EXHIBIT A PERMANENT EASEMENT TRACT F THAT PART OF THE NORTHEAST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS : COMMENCING. AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 . AND THE WEST RIGHT OF WAY LINE OF RUSSELL ROAD, SAID LINE BEING 30 . 00 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE NORTHERLY 369 . 80 FEET ALONG SAID WEST LINE, BEING ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 788 . 64 FEET AND A CENTRAL ANGLE OF 26 DEGREES 52 MINUTES AND 00 SECONDS; THENCE NORTHERLY 513 . 18 FEET TANGENT TO THE LAST DESCRIBED COURSE, ALONG SAID WEST LINE, TO THE POINT OF BEGINNING; THENCE WESTERLY 30 . 00 FEET, PERPENDICULAR TO THE LAST DESCRIBED COURSE; THENCE NORTHERLY 30 . 00 FEET, ALONG A LINE THAT IS 60 . 00 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE EASTERLY 30 . 00 FEET, PERPENDICULAR TO THE LAST DESCRIBED COURSE, TO THE AFORESAID WEST LINE OF RUSSELL ROAD; THENCE SOUTHERLY 30 . 00 FEET ALONG SAID WEST LINE TO THE POINT OF BEGINNING, IN KANE COUNTY, ILLINOIS . DISTANCE FROM POINT OF COMMENCING TO POINT OF BEGINNING IS APPROXIMATE AND EASEMENT PREMISES SHOULD ULTIMATELY BE CENTERED ON SANITARY SEWER LINE AS CONSTRUCTED. PERMANENT EASEMENT TRACT G THAT PART OF THE NORTHEAST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS : COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 AND THE WEST RIGHT OF WAY LINE OF RUSSELL ROAD, SAID LINE BEING 30 . 00 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE NORTHERLY 239 . 80 FEET ALONG SAID WEST LINE, BEING ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 788 . 64 FEET AND A CENTRAL ANGLE OF 17 DEGREES 25 MINUTES AND 17 SECONDS TO THE POINT OF BEGINNING; THENCE WESTERLY 30 . 58 FEET, ALONG A LINE THAT IS PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13; THENCE NORTHERLY 30 . 49 FEET, ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 758 . 64 FEET, SAID CURVE BEING 60 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE EASTERLY ALONG A LINE PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 TO THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE SOUTHERLY 30 FEET ALONG SAID EAST LINE- TO A LINE THAT IS DRAWN PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 FROM THE POINT OF BEGINNING; THENCE WESTERLY ALONG SAID PARALLEL LINE TO THE POINT OF BEGINNING, IN KANE COUNTY, ILLINOIS, EXCEPTING THEREFROM THAT PART FALLING IN RUSSELL ROAD. DISTANCE FROM POINT OF COMMENCING TO POINT OF BEGINNING IS APPROXIMATE AND EASEMENT PREMISES SHOULD ULTIMATELY BE CENTERED ON SANITARY SEWER LINE AS CONSTRUCTED. TEMPORARY EASEMENT TRACT H THAT PART OF THE NORTHEAST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS : COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 AND THE WEST RIGHT OF WAY LINE OF RUSSELL ROAD, SAID LINE BEING 30 . 00 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE NORTHERLY 239 . 80 FEET ALONG SAID WEST. LINE, BEING ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 788 . 64 FEET AND A CENTRAL ANGLE OF 17 DEGREES 25 MINUTES AND 17 SECONDS TO THE POINT OF BEGINNING; THENCE EASTERLY ALONG A LINE THAT IS PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 TO THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE SOUTHERLY 50 FEET ALONG SAID EAST LINE; THENCE WESTERLY ALONG A LINE THAT IS PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 TO THE WEST RIGHT OF WAY LINE OF SAID RUSSELL ROAD; THENCE NORTHERLY ALONG SAID WEST RIGHT OF WAY LINE TO THE POINT OF BEGINNING, IN KANE COUNTY, ILLINOIS, EXCEPTING THEREFROM THAT PART FALLING IN RUSSELL ROAD. AND ALSO THAT PART OF THE NORTHEAST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS : COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 AND THE WEST RIGHT OF WAY LINE OF RUSSELL ROAD, SAID LINE BEING 30 . 00 FEET WEST OF AND PARALLEL WITH THE CENTERLINE OF RUSSELL ROAD; THENCE NORTHERLY 270 . 25 FEET ALONG SAID WEST LINE, BEING ALONG A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 788 . 64 FEET AND A CENTRAL ANGLE OF 19 DEGREES 38 MINUTES AND 03 SECONDS TO THE POINT OF BEGINNING; THENCE EASTERLY ALONG A LINE THAT IS PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 TO THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID NORTHEAST QUARTER; THENCE NORTHERLY 50 FEET ALONG SAID EAST LINE; THENCE WESTERLY ALONG A LINE THAT IS PARALLEL WITH THE SOUTH LINE OF THE NORTH 75 ACRES OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 13 TO THE WEST RIGHT OF WAY LINE OF SAID RUSSELL ROAD; THENCE SOUTHERLY ALONG SAID WEST RIGHT OF WAY LINE TO THE POINT OF BEGINNING, IN KANE COUNTY, ILLINOIS, EXCEPTING THEREFROM THAT PART FALLING IN RUSSELL ROAD.