08-161 Resolution No. 08-161
RESOLUTION
AUTHORIZING EXECUTION OF A GRANT AGREEMENT
WITH NATHANIEL NOEL, MICHAEL FORD, DOUGLAS HEIMANN,
BRENDA ZEID, KATHLEEN MAU AND THE
DOWNTOWN DUPAGE CONDO ASSOCIATION
(269-275 DuPage Street)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that
Ed Schock, Mayor, and Diane Robertson, City Clerk be and is hereby authorized and directed to
execute a grant agreement with Nathaniel Noel, Michael Ford, Douglas Heimann, Brenda Zeid,
Kathleen Mau and the Downtown DuPage Condo Association for emergency building stabilization at
269-275 DuPage Street, a copy of which is attached hereto and made a part hereof by reference.
s/ Ed Schock
Ed Schock, Mayor
Presented: June 25, 2008
Adopted: June 25, 2008
Vote: Yeas: 5 Nays: 2
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
6/2/08
GRANT AGREEMENT
THIS AGREEM ENT made and entered into this — day of , 2008,
by and between the Cit} of Elgin, an Illinois municipal corporation (hereinafter referred to as the
"City"), Nathaniel Noel Michael Ford, Douglas Heimann, Brenda Zeid, Kathleen Mau and the
Downtown DuPage C)ndo Association, an Illinois not-for-profit corporation (hereinafter
collectively referred to E s the "Property Owners").
WITNESSETH:
WHEREAS, the property commonly known as 269-275 DuPage Street, Elgin,Illinois
60120 is a residential sti ucture with four, owner-occupied condominium units (such property is
hereinafter referred to a, the "Subject Property"); and
WHEREAS, NEthanial Noel and Michael Ford are the owners of one of the four
residential condominiums within the Subject Property such residential condominium being
commonly known as 261 DuPage Street, Elgin, Illinois 60120; and
WHEREAS, Do iglas Heimann is the owner of one of the four residential condominiums
within the Subject Property such residential condominium being commonly known as 271
DuPage Street, Elgin, Illinois 60120; and
WHEREAS, Br nda Zeid is the owner of one of the four residential condominiums
within the Subject Property such residential condominium being commonly known as 273
DuPage Street, Elgin, Illinois, 60120; and
WHEREAS, Ka hleen Mau is the owner of one of the four residential condominiums
within the Subject Property such residential condominium being commonly known as 275
DuPage Street, Elgin, Illinois 60120; and
WHEREAS, the Downtown DuPage Condominium Association is the condominium
association for the Subject Property and owns the common elements within the Subject Property;
and
WHEREAS, the Subject Property was rehabilitated in stages by previous owners who
removed eight (8) dwelling units from what was then a lawful non-conforming twelve-unit
property; and
WHEREAS, the Property Owners have begun to experience excessive settling problems
on the Subject Property including sloping floors, sagging door frames and cracked walls and
ceilings; and
WHEREAS, it has been determined that there exists substantial defects in the foundation
system for the Subjec; Property which has resulted in consequential settlement damages
throughout the Subject J'roperty; and
WHEREAS, it i:; imperative that corrective measures be commenced as soon as possible
to prevent continuing settling of the building on the Subject Property and that if the settlement of
the building on the Subj:ct Property is not stopped, the resulting damage may progress to a point
where it is no longer ecc nomically feasible to repair the building on the Subject Property; and
WHEREAS, in order to prevent the further deterioration of the Subject Property and to
protect the public health and safety of both the occupants of the Subject Property and
surrounding property o veers and occupants thereof the City has agreed to provide the grant
funds to the Property Owners as hereinafter specified to fund emergency repairs necessary to
maintain the building or the Subject Property's continued habitability; and
WHEREAS, the City of Elgin is a home rule unit authorized to exercise any power and
perform any function re:ating to its government affairs; and
WHEREAS, the grant funds be advanced to the Property Owners provided herein to fund
emergency repairs to stt-bilize the Subject Property to prevent the potential further settlement and
deterioration of the Su bject Property and to protect the public health and safety of both the
occupants of the Subje Property and the Property Owners and surrounding residents of the
Subject Property, are matters within the government affairs of the City of Elgin.
NOW, THEREFORE, for and in consideration of the mutual promises and undertakings
contained herein, and of aer good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledge, the parties hereto agree as follows:
1. The Propert." Owners shall within thirty (30) days of the entry into this agreement
enter into contracts to repair the foundation system on the Subject Property, to repair
consequential settlemer t damage to the roof structure on the Subject Property and to repair
consequential settlement damages in the interior of the four condominium units on the Subject
Property as follows:
(a) A contract with the American Foundation Repair Company in the amount. of
$22,500 pursuant to th: American Foundation Repair proposal for same date April 7, 2007,
attached hereto as Exhit it 1.
(b) A contract with A. Jayne Roof Systems to repair consequential settlement damage
to the roof structure on he Subject Property pursuant to the A. Jayne Roof Systems proposal for
same in the amount of$14,900 attached hereto as Exhibit 2.
(c) Contracts s) with S & H Remodeling in the amounts of$5,100 (Unit 269), $3,500
(Unit 271), $3,250 (Uni; 273), and $1,250 (Unit 275) to repair consequential settlement damages
to the interior of the fc ur condominium units on the Subject Property pursuant to the S & H
Remodeling proposals c ated March 1, 2008, attached hereto as group Exhibit 3.
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2. The City agrees to provide the Property Owners a grant to fund such foundation
repairs and consequential settlement damage repairs specified in the proceeding Sectionl hereof
in the total amount not x) exceed $50,500. The City will make such grant payments directly to
the contractor specified in the proceeding section 1 above as follows:
(a) Thirty perecnt (30%) deposit to American Foundation Repair upon commencement
of the work,with the ba ance upon completion of the work.
(b) Fifty percer.t (50%) deposit to A. Jayne Roof Systems upon commencement of the
work, with the balance to be paid upon completion of the work.
(c) Payment to :; & H Remodeling upon completion of the work.
3. The Pro lefty Owners shall provide the City written notice of the proposed
commencement of the work by the contractors referred to in the preceding sections 1 and 2
hereof. The Property Owners shall also provide the City written notice of the completion of such
work by the contractors. All of the work to be performed on the Subject Property referred to in
this agreement shall b performed and completed in conformance with all applicable legal
requirements. It is further agreed that the Property Owners have selected the various contractors
to perform the repair w)rk to the Subject Property and that the City shall have no responsibility
for the work to be performed by such contractors.
4. That within sixty (60) days of the entry into this contract the Property Owners
shall file lawsuits in tho Circuit Court of Kane County against the buildings previous owner(s),
the contractor(s) who i nproperly installed the supporting steel posts in the crawl space on the
Subject Property, the home inspectors who failed to discover the defects in the Subject Property
and all other third par:ies the Property Owners can identify who may be responsible to the
Property Owners for the defects in the Subject Property (but not including the City of Elgin
and/or its officials, of leers, employees, attorneys, agents, boards and commissions). Such
lawsuits shall seek recovery under all legal theories and in such amounts to the full extent
permitted by law. Upon the filing of such lawsuits, the Property Owners shall thereEifter
diligently prosecute s lch lawsuits. Any monetary recovery, less the Property Owners'
reasonable attorney's fees and court costs, derived from such lawsuits, shall be paid by the
Property Owners to the City up to the amount of$50,500, to reimburse the City the grant funds
the City is advancing t3 the Property Owners as provided herein. The proposed settlement or
compromise of any such lawsuits shall be subject to the express written approval of the City's
corporation counsel.
5. That thiii agreement shall not be deemed or construed to create an employment,
joint venture, partnersh p or other agency relationship between the parties hereto.
6. That the failure by a party to enforce any provision of this agreement against the
other party shall not be deemed a waiver of their right to do so thereafter.
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7. That this agreement may be modified or amended only in writing signed by all
parties hereto, or other r ermitted successors or assigns, as the case may be.
8. That thi:, agreement contains the entire agreement and understanding of the
parties hereto with respect to the subject matter set forth herein, all prior agreements and
understandings having t een merged herein and extinguished hereby.
9. That thi: agreement is and shall be deemed and construed to be a joint and
collective work product of the City and the Property Owners, and as such, this agreement shall
not be construed agains: the other 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 pi ovisions contained herein.
10. That this agreement is subject and shall be governed by the laws of the State of
Illinois.
11. That thi: 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 by any of the Property Owners without the express written consent of the City, which
consent may be withheld at the sole discretion of the City. The City may file a memorandum of
agreement against title .o the Subject Property making of record and terms and provisions of this
agreement.
12. That the City and the Property Owners agree that, in the event of a default by a
party, the other party shall, prior to taking any such actions as may be available to it, provide
written notice to the defaulting party stating that they are giving the defaulting party thirty (30)
days within which to cure such default. If the default shall not be cured within the thirty-day
period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to
which it may be entitle(l under this agreement.
13. If any party fails or refuses to carry on any of the material covenants or
obligations hereunder, t he other party shall be entitled to pursue any and all available remedies as
specified herein or otherwise available at law, equity or otherwise. Notwithstanding the
foregoing or anything a Ise to the contrary in this agreement, with the sole exception of an action
to recover the monies the City has agreed to pay pursuant to the preceding section 2 hereof, no
action shall be commer ced by the Property Owners or any of them against the City for monetary
damages. Venue for ti e resolution of any disputes or the enforcement of any rights pursuant to
this agreement shall be in the Circuit Court of Kane County, Illinois. In the event any acticn is
brought by the City ags inst the Property Owners or any of them or any of their permitted assigns
with respect to this agreement and the City is the prevailing party in such action, the City shall
also be entitled to recon er from the Property Owners reasonable interest and attorney's fees.
14. Time is )f the essence of this agreement.
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15, This agre ement shall be construed, and the rights and obligations of the City and
the Property Owners hereunder shall be determined in accordance with the laws of the State of
Illinois without reference to its conflict of laws rules.
16. Notwithstanding any other provisions of this agreement, it is expressly agreed and
understood by the Proporty Owners and the City that in connection with the performance of this
agreement including, without limitation, the proposed repairs to the Subject Property as specified
in this agreement, that he Property Owners shall comply with all applicable federal, state, City
and other requirements of law. The Property Owners shall also at their expense secure all
permits and licenses, pay all charges and fees and give notices necessary and incident to the due
and lawful prosecution of the work necessary to provide for the repairs to the Subject Property as
described in this agreerr ent.
17. To the f illest extent permitted by law, the Property Owners, and each of them,
agree to, shall and do 1.ereby indemnify, defend, hold harmless, waive and release the City, its
officials, officers, empl)yees, attorneys, agents, boards and commissions, and all related parties,
from and against any and all claims, suits, judgments, costs, attorneys' fees, damages or other
relief, including but no: limited to worker's compensation claims, in any way resulting from or
arising out of or alleged to be resulting from or arising out of the Subject Property, defects on the
Subject Property, dama;es to the Subject Property, the necessary repairs to the Subject Property,
proposed repairs to the Subject Property, inspections of the Subject Property and/or in any way
resulting from or arising out of or alleged to be resulting from or arising out of any alleged
negligence by the City, its officials, officers, employees, attorneys, agents, boards and
commissions, in conne;tion with the Subject Property. The provisions of this paragraph shall
survive any completion expiration and/or termination of this agreement.
18. The Property Owners agree to and shall provide to the City written reports of the
status of the repairs to the Subject Property and/or the status of the lawsuit(s) to be filed by the
Property Owners referr;d to in this agreement. Such written reports shall be provided to the City
quarterly or upon reqt est of the City. Such written reports shall contain a status report on
construction activities, he status of any lawsuits and such other information as may be requested
by the City.
19. The Prcperty Owners and each of them on behalf of themselves and their
respective successors, assigns and grantees of the Subject Property hereby acknowledge the
propriety, necessity ani legality of all of the terms and provisions of this agreement, and do
hereby further agree ar d do waive any and all rights to any and all legal or other challenges or
defenses to any of the terms and provisions of this agreement and hereby agree and covenant on
behalf of themselves aid their successors, assigns and grantees of the Subject Property, not to
sue the City or maintain any legal action or other defenses against the City with respect to any
challenges of the terms and provisions of this agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS A HEREOF, the parties have entered into and executed this agreement and
the date and year first w-itten above.
CITY OF ELGIN ALIL--/ilot
Nathaniel Noel
BY 40{411--1111. At.
Rimrock, May m.
Michael For
Attest:
CL•
Diane Robertson, City('1erk Douglas He ann
Brenda Zeid
*„azg.9att•--- /hkCAAA.— •
Kathleen Mau
Downtown DuPage Condo Association
By L •
Its
F:\Legal Dept\Agreement\Grant Ag Ternent-269-275 DuPage-6-2-08.doc
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•-*"4 14 In
June 5, 2008 . -° NoRTHwEsT
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TO: Mayor and Members of the City Council
FROM: Olufemi Folarin, City Manager
William A. Cogley, Corporation Counsel
SUBJECT: Agreement for Emergency Grant for Building Stabilization at 269-275 DuPage
Street
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider an agreement for an emergency grant with the property owners of 269-
275 DuPage Street totaling $50,500 to repair the foundation system and to repair consequential
settlement damages of the building located at such property.
RECOMMENDATION
It is recommended that the City Council approve the proposed agreement for an emergency grant
providing for a grant totaling $50,500 for foundation repairs and to repair consequential
settlement damages to the building located at 269-275 DuPage Street.
BACKGROUND
The property at 269-75 DuPage Street is a residential structure with four, owner-occupied
condominiums. The building was rehabilitated in stages by two previous owners who removed
eight dwelling units from what was then a lawful nonconforming 12 unit dwelling. Nathaniel
Noel and Michael Ford are the owners of 269 DuPage Street. Douglas Heimann is the owner of
271 DuPage Street. Brenda Zeid is the owner of 273 DuPage Street. Kathleen Mau is the owner
of 275 DuPage Street. The Downtown DuPage Condo Association is the condominium
association for the subject property and owns the common elements of such property.
During the rehabilitation to remove the eight dwelling units, several adjustable steel supporting
posts were apparently installed in a remote crawl space area of the building in an effort to
stabilize and support the building's existing beam lines. The home inspectors hired by each of
the existing condominium owners when they purchased their units failed to observe the condition
of the supporting posts during their respective inspections because access to the building's
remote crawl space is not readily apparent. Access to the crawl space is made from the exterior
of the building in the rear yard from a hatch located approximately four feet above ground level.
Emergency Building Stabilization Grant
June 5, 2008
Page 2
After the condominium owners began experiencing excessive settling problems in each of their
units, including sloping floors, sagging door frames and cracked walls and ceilings, the
building's condominium association hired an engineer to determine the cause of the problems.
The engineer submitted a report determining the supporting posts in the building's crawl space
were improperly installed and were causing the damage observed by the condominium owners.
To correct the damage caused by the improperly installed steel posts, hydraulic jacks must be
positioned under the building so that it can be gradually raised back to its proper height over a
period of several months. It is imperative that the corrective measures commence as soon as
possible to prevent the continuing settling of the building. If the settling is not stopped, the
resulting damage may progress to a point where it is no longer economically feasible to repair
the building.
The condominium association (in which each of the building's four condominium owners are
members) is seeking financial assistance from the City to fund the emergency repairs necessary
to maintain the building's continued habitability. The condominium association has submitted
quotes from contractors establishing the necessary repairs will cost $50,500. Copies of such
quotes are attached. The quote from American Foundation Repair to repair the foundation
system is in the amount of $22,500. The quote from A. Jayne Roof Systems to repair
consequential settlement damage to the roof structure is in the amount of $14,900. The quote
from S & H Remodeling to repair the consequential settlement damages to the interior of the four
condominium units totals $13,100.
The City has prepared the attached draft proposed grant agreement governing the terms of the
City's proposed assistance to the condominium association and the four individual condominium
owners. Under the terms of the proposed grant agreement, the City will make payments in an
amount not to exceed the total of $50,500 directly to the contractors hired to repair the faulty
foundation and to repair the consequential settlement damages to the property. In return, the
condominium association and the owners of the four condominium units are required to file
lawsuits against the building's previous owner(s), the contractor(s) who improperly installed the
steel posts, the home inspectors who failed to discover the defects and all other third parties the
property owners can identify who may be responsible to the property owners for the defects in
the subject property. These lawsuits must be commenced within sixty (60) days of the signing of
the grant agreement. Any monetary recovery derived from those lawsuits up to $50,500 would
be paid to the City, less the owners' reasonable attorney's fees and court costs, as repayment to
the City for the grant the City is providing. The settlement of any of those lawsuits will be
subject to the express approval of the City's Corporation Counsel.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None
Emergency Building Stabilization Grant
June 5, 2008
Page 3
FINANCIAL IMPACT
The total cost of this project is $50,500. Funding is available in the General Fund, account
number 010-6902-719.84-01, "Non-Departmental-Contingency", with $209,000 budgeted and
$209,000 available. The General Fund Contingency account is to be used for emergencies
and/or unforeseen expenditures as is the case with this initiative.
LEGAL IMPACT
None
ALTERNATIVES
1. The Council may choose to award the proposed emergency grant agreement for building
stabilization as drafted or with suitable amendments.
2. The Council may choose to reject the proposed emergency grant agreement for building
stabilization.
Respectfully submitted for Council consideration.
Attachment
WAC/rk