09-213 Resolution No. 09-213
RESOLUTION
AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH
FUNK PROPERTIES LIMITED
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 a Development Agreement on behalf of the City of Elgin with Funk Properties Limited for
the city's acquisition of necessary right of way for the extension of South Street and easements for
the Bowes Road Interceptor Sewer Trunk 20 Project,a copy of which is attached hereto and made a
part hereof by reference.
s/ Ed Schock
Ed Schock, Mayor
Presented: October 14, 2009
Adopted: October 14, 2009
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement"), made and entered into
as of this HA. day of °C /74W , 2009, by and between the CITY OF
ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City"), and FUNK
PROPERTIES LIMITED, an Illinois corporation (hereinafter referred to as the "Owner").
WITNESSETH
WHEREAS, Owner is the owner of record of the real property depicted on Exhibit A,
attached hereto and incorporated herein by this reference, said property consisting of
approximately 50.49 acres in Kane County, Illinois, and having Parcel Index Number 06-20-276-
002 (hereinafter referred to as the "Subject Property"); and,
WHEREAS, the City desires that the public right-of-way commonly known as South
Street be extended over that portion of the Subject Property depicted by the area designated
"Parcel 0003" on Exhibit B and legally described in Exhibit C, attached hereto and incorporated
herein by this reference (hereinafter referred to as the "South Street Extension"); and,
WHEREAS, the City further desires to obtain a permanent easement for the purpose of
installing stormwater management and drainage facilities over a portion of the Subject Property
along the South Street Extension depicted by the area designated "Parcel 0003PE" on Exhibit B
and legally described in Exhibit C (hereinafter referred to as the "South Street Drainage
Easement"); and,
WHEREAS, the City further desires to obtain a temporary construction easement for the
purpose of constructing the South Street Extension and related facilities over that portion of the
Subject Property depicted by the area designated "Parcel 0003TE" on Exhibit B and legally
described in Exhibit C (hereinafter referred to as the "South Street Temporary Construction
Easement"); and,
WHEREAS, the City further desires to obtain a permanent easement for the purpose of
constructing, maintaining, operating and repairing a sewer line relating to the City's Bowes Road
Interceptor Sewer—Trunk 20 (`KRIS-20") Project, a portion of which is to be located within the
South Street Extension and a portion of which is to be located over that portion of the Subject
Property depicted by the area designated "Sanitary Sewer Easement" on Exhibit D and legally
described on Exhibit E, to be prepared in accordance with section 16 of this Agreement and
attached hereto and incorporated herein by this reference (hereinafter referred to as the `KRIS-20
Sanitary Sewer Easement"); and,
WHEREAS, the City further desires to obtain temporary construction easements for the
purposes of constructing said sanitary sewer line over that portion of the Subject Property
depicted by the areas designated "Temporary Construction Easement #1" and "Temporary
Construction Easement #2" on Exhibit D and legally described on Exhibit E (hereinafter referred
to as the `KRIS-20 Temporary Construction Easements"); and,
to as the"BRIS-20 Temporary Construction Easements"); and,
WHEREAS, the Subject Property is currently zoned SFR2 — Single Family Residence
District under the provisions of the Elgin Zoning Ordinance; and,
WHEREAS, the Owner desires to rezone the Subject Property to permit the development
of the Subject Property with commercial and residential townhome uses; and,
WHEREAS, the Owner further desires to submit a request to the Kane County
Department of Transportation (KDOT) to allow access to Randall Road; and,
WHEREAS, the City's Community Development Department has determined that it will
support the Owner's attempt to rezone the Subject Property and to obtain approval from KDOT
for an access to Randall Road, as further set forth herein; and,
WHEREAS, the City and the Owner agree that the extension of South Street and the
BRIS-20 project will provide a direct benefit to the eventual development of the Subject
Property; and,
WHEREAS, the City and the Owner desire to enter into this Agreement whereby, in
consideration of the City supporting the Owner's efforts to rezone the property and obtain an
access to Randall Road, and the benefit derived from the extension of South Street and the
construction of the BRIS-20 sewer line, the Owner will grant to the City the required South
Street right-of-way and the permanent and temporary easements described herein; and,
WHEREAS, the City is a home rule unit authorized to exercise and perform any function
relating to its government and affairs; and,
WHEREAS, the planning, conveyance to the City, and construction of the roadways and
public improvements described herein are matters within the government affairs of the City; and,
WHEREAS, the development of the Subject Property is expected to ultimately result in
increases in the City's revenues and in the City's tax and employment base, and, as such, are
matters within the government and affairs of the City of Elgin.
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. Recitals. The foregoing recitals are incorporated into this Agreement in their
entirety.
2. Conveyance and Dedication of South Street Extension. The Owner shall convey
to the City the South Street Extension parcel. The conveyance by the Owner to the City of the
South Street Extension parcel shall be by recorded warranty deed subject only to: (a) general real
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estate taxes not yet due and payable at closing; (b) easements of record; (c) zoning laws, statutes
and ordinances; and (d) covenants, conditions and restrictions of record, if any, none of which
shall prohibit the City's intended use of the South Street Extension parcel as public right-of-way.
3. Title Commitment for the South Street Extension Parcel. Not less than thirty(30)
days prior to the closing date contemplated in this Agreement, the City shall, at its own expense,
obtain a title commitment for a 1970 ALTA owners title insurance policy issued by Chicago Title
Insurance Company(the "Title Company") in the minimum amount of insurance covering title to
the South Street Extension parcel on or after the date of this Agreement. Such commitment shall
show title to the Owner subject only to: (a) title exceptions set forth in Section 2 of this
Agreement; (b) title exceptions pertaining to liens of a definite or ascertainable amount which
may be so removed by the payment of money at the time of closing and which the Owner shall
remove at that time; (c) other matters of title over which the Title Company is willing to insure
without cost to the City. At closing, the Owner shall, in addition to the deed and title
commitment, also furnish to the City(i) an Affidavit of Title in customary form covering the date
of closing and showing title in the Owner subject only to permitted exceptions, (ii) a Plat Act
Affidavit (iii) transfer declarations, (iv) an ALTA statement signed by the Owner, (v) a closing
statement, and (vi) such other documents as are customary to complete the closing contemplated
in this Agreement.
4. Survey. Not later than thirty (30) days prior to closing, the City, at its own
expense, shall obtain, and provide a copy to the Owner, a plat of survey of the South Street
Extension Parcel prepared by a licensed land surveyor dated not more than (6) months prior to
closing, made and so certified by the surveyor to the City, or other person designated by the City,
and the title company, as having been made in accordance with the minimum standard detail
requirements for ALTA-ASCM land title surveys and mapping, 1992, without Table A items.
The survey shall also include a certification by the surveyor as to the square footage of the South
Street Extension parcel (excluding any portion thereof lying in a public right-of-way). Such
survey shall further indicate all applicable easements and rights-of-way.
5. Title Clearance. If the title commitment to be provided pursuant to Section 3 of
this Agreement, or the plat of survey to be provided pursuant to Section 4 of this Agreement,
discloses either unpermitted exceptions or survey matters that render the title not in conformance
with the provisions of this Agreement, the Owner shall have thirty (30) days from the date of
delivery thereof to have the exceptions removed from the commitment, or to have the Title
Company commit to insure against loss or damage that may be associated by such exceptions
and, in such event, the time of closing shall be thirty (30) days after the delivery of the
commitment or the time expressly specified in Section 6 hereof, whichever is later. If the Owner
fails to have the exceptions removed, or in the alternative, to obtain the commitment for title
insurance specified above as to such exceptions, the City may terminate this Agreement or may
elect, upon notice to the Owner within ten (10) days after the expiration of the thirty (30) day
period, to take title as it then is. If the City does not so elect, this Agreement shall be deemed
terminated and null and void with no further liability of either party hereunder.
6. Closing. The closing shall take place at Chicago Title Insurance Company office
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in Elgin, Illinois, within sixty (60) days after the entry into this Agreement. At closing, the City
shall pay the standard closing costs of the Title Company; real estate taxes shall be prorated to
the date of closing, based upon 105% of the last ascertainable assessment and rate applicable to
each parcel. Each party shall be responsible for its own attorney's fees.
7. Escrow. This sale shall be closed through an escrow (the "Escrow") with Chicago
Title and Trust Company ("Escrowee"), in accordance with the provisions of the Deed and
Money Escrow Agreement then in use by Escrowee, with such special provisions inserted in the
escrow agreement as may be required to conform with this Agreement. Upon the creation of
such Escrow, payment of the purchase price and delivery of deed shall be made through the
Escrow and the earnest money shall be deposited in the Escrow. The cost of the Escrow and any
so-called "New York Style" closing fee shall be paid by the City. The City and the Owner shall
make all deposits into the escrow in a timely manner to permit the Escrowee to disburse the
Escrow on the date of closing.
8. Owner Warranties. The Owner represents and warrants to the City as follows:
A. The Owner is not a "foreign person" within the meaning of Section 1445 of
the Internal Revenue Code. At closing, the Owner shall deliver to the City a
certificate of non-foreign status.
B. The Subject Property is subject to an oral farm lease. The Owner warrants and
agrees that it shall not renew, or it shall otherwise terminate, said farm lease
with respect to the South Street Extension parcel, and that the farm lease shall
be subject to the easements granted herein, effective as of January 1, 2010.
C. There are no existing contracts or options to purchase the South Street
Extension parcel.
D. There exists no management agreement, exclusive brokerage agreement or
service agreement of any kind relative to the South Street Extension parcel
that will continue in force beyond the closing date.
E. As of the date of closing, the South Street Extension parcel will be vacant and
unoccupied.
F. To the best of the Owner's knowledge, there are no underground storage tanks
on the South Street Extension parcel.
G. To the best of the Owner's knowledge, neither the improvements on the South
Street Extension parcel, if any, nor the South Street Extension parcel contain
any friable asbestos and no polychlorinated biphenyls (PCBs) are located in,
on or under the South Street Extension parcel (including, without limitation,
in, on or under any equipment located thereon).
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H. To the best of the Owner's knowledge, no hazardous materials or substances
have been located on the South Street Extension parcel or have been released
into the environment, or discharged, placed or disposed of, at or under the
South Street Extension parcel.
I. To the best of the Owner's knowledge, the South Street Extension parcel has
never been used as a dump for waste material.
J. To the best of the Owner's knowledge, the South Street Extension parcel and
its prior uses comply with and at all times have complied with any applicable
governmental law, regulation or requirement relating to environmental and
occupational health and safety matters and hazardous materials or substances.
9. City Warranties. The City represents and warrants to the Owner as follows:
A. The City shall, upon completion of the improvements contemplated on the
South Street Extension parcel, promptly repair and restore the South Street
Extension parcel and the Owner's adjoining property to the same conditions as
existed immediately prior to the improvements thereon as are reasonably
practicable.
10. Survival. All representations, warranties, indemnities and covenants made by the
Owner to the City under this Agreement shall be deemed remade as of the closing and shall
survive the closing, and the remedies for the breach thereof shall survive the closing and shall not
be merged into the closing documents.
11. Prohibited Transactions. From and after the date this Agreement, the Owner shall
not, and shall not permit any third party to, without the express written consent of the City: (a)
enter into any lease, contract, or agreement or grant any rights (including licenses and easements)
respecting the South Street Extension parcel or any portion thereof; (b) create or suffer any right,
claim, lien, or encumbrance of any kind or nature whatsoever on the South Street Extension
parcel or any portion thereof; or (c) add or remove soil from the South Street Extension parcel or
otherwise dump or abandon any property, materials, or chemicals thereon. If any third party shall
add or remove soil from any parcel or otherwise dump or abandon any property, materials, or
chemicals thereon, the Owner shall cause said third party to remove anything dumped or
abandoned thereon and restore the property to its condition prior to such dumping or
abandonment, and if such third party shall fail to do so, the City shall have the right to rescind
this Agreement prior to or at the closing.
12. Brokers. The parties represent and warrant to each other that neither dealt with a
broker or finder with respect to the transaction contemplated hereunder, and each party hereby
indemnifies and agrees to save, defend, and hold the other party harmless from and against any
loss, cost, damage, claim, liability, or expense, including but not limited to reasonable attorneys'
fees and litigation costs suffered or incurred by such other party as a result of a breach of the
foregoing warranty.
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13. Assurances of Cooperation. The parties hereby covenant and agree that they will
at all times prior to or after the closing, and from time to time do, execute, acknowledge, and
deliver or will cause to be done, executed, acknowledged, and delivered all such further acts,
documents, and instruments as may reasonably be required by the other party, and following
reasonable approved by counsel for the party to perform, in order to carry out fully and effectuate
the transaction herein contemplated in accordance with the provisions of this Agreement.
14. Conveyance of South Street Drainage Easement and South Street Temporary
Construction Easement. Concurrently with the closing on the South Street Extension parcel, the
parties agree to enter into an easement agreement granting to the City the South Street Drainage
Easement and South Street Temporary Construction Easement previously described herein
(hereinafter referred to as the "South Street Easement Agreement"). The South Street Easement
Agreement is attached hereto as Exhibit F and incorporated herein by this reference.
15. Conveyance of BRIS-20 Sanitary Sewer Easement and BRIS-20 Temporary
Construction Easement. Concurrently with the closing on the South Street Extension parcel, the
parties agree to enter into an easement agreement granting to the City the BRIS-20 Sanitary
Sewer Easement and BRIS-20 Temporary Construction Easements previously described herein
(hereinafter referred to as the `KRIS-20 Easement Agreement"). The BRIS-20 Easement
Agreement is attached hereto as Exhibit G and incorporated herein by this reference.
16. Reimbursement of Costs for BRIS-20 Plat of Easement. The parties agree that the
Owner shall prepare the plat of easement previously identified herein as Exhibit D and the legal
descriptions previously identified herein as Exhibit E, relating to the BRIS-20 Sanitary Sewer
Easement and the BRIS-20 Temporary Construction Easements. Upon the mutual consent and
approval of the Parties said plat of easement and legal descriptions shall be attached hereto as
Exhibit D and Exhibit E, respectively. The City agrees to reimburse to the Owner its reasonable
costs incurred to prepare the plat of easement attached hereto as Exhibit D and the legal
descriptions attached hereto as Exhibit E. Said payment shall be made to the Owner within thirty
(30) days of the City's receipt of a written request for reimbursement following approval of the
exhibits. Prior to commencing work on the preparation of Exhibit D and Exhibit E, the Owner
shall provide the City with an estimate of the costs of such work for the City's approval.
17. City Support for Rezoning the Subject Property. The City agrees that its
Community Development Department shall support the rezoning of the Subject Property from its
existing SFR2 — Single Family Residence District zoning classification to a PAB Planned Area
Business District zoning classification with multiple-family residential as a permitted use that
would permit the development of the Subject Property with commercial and residential
townhome uses, as generally depicted on the plan entitled "Funk Farm — Concept Plan A,"
attached hereto as Exhibit H and incorporated herein by this reference. Provided, however, that
specific details of the development, including but not limited to density, site design, access to
Randall Road, and building design and materials will be subject to review and approval through
the City's Planned Development Process. Except as specifically permitted pursuant to variation
or planned development approval, all aspects of the development and use of the Subject Property
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and construction and installation of improvements thereon,both on-site and off-site, shall comply
fully with all applicable City ordinances, codes, standards and specifications.
18. City Support for Access to Randall Road. The City agrees that its Community
Development Department shall support an application by the owner to KDOT to permit the
construction of an access to Randall Road from the Subject Property. Provided, however, that
the City's support shall be contingent on the following conditions:
A. Access to Randall Road will only be considered at the time that the Subject
Property is proposed to be developed;
B. The Owner acknowledges that it has not been determined whether a right-
in/right-out or a full access intersection would be accepted by KDOT;
C. The design of any such access intersection will be subject to any applicable
requirements and regulations of KDOT and the City; and,
D. The intergovernmental agreement between Kane County and the City of Elgin
will need to be amended prior to final engineering approval of any such
access.
19. Construction of Weldwood Drive Extension. The City agrees to the Owner's
proposed alignment for the extension of Weldwood Drive, as generally depicted on Exhibit H.
The parties agree that the Owner shall be responsible for the construction of the extension of
Weldwood Drive at such time as the Subject Property is developed. The Owner agrees that it
shall convey and dedicate to the City such land as is necessary for the extension of the
Weldwood Drive right-of-way upon acceptance of the same by the City.
20. Limitation on Imposition of Costs. The City agrees that it shall not impose upon
the Owner any obligation to construct or to pay for the construction of, the South Street
Extension or the BRIS-20 sewer line, whether by direct imposition or by way of any recapture or
reimbursement charges in favor of the City or any other party.
21. Compliance with Laws. Notwithstanding any other provisions of this agreement
it is expressly agreed and understood by the City and the Owner that in connection with the
performance of this agreement and the development of the Subject Property, the Owner shall
comply with all applicable federal, state, city and other requirements of law. The Owner shall
also at its expense secure all permits and licenses, pay all charges and fees and give all notices
necessary and instant to the due and lawful prosecution of the work necessary to provide for the
development of the Subject Property.
22. Default. The City and the Owner agree that, in the event of a default by the other
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
7
period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to
which it may be entitled under this agreement.
23. Remedies. If either party fails or refuses to carry out any of the material
covenants or obligations hereunder, the other party shall be entitled to pursue any and all
available remedies as specified herein otherwise available at law, equity, provided, however, that
in no event shall an action be commenced by the Owner or any of its successors and/or assigns
against the City for monetary damages arising from or in any manner related to any breach of this
Agreement.
24. Relationship of the Parties. This Agreement shall not be deemed or construed so
as to create a joint venture, employment, partnership or other agency relationship between the
parties hereto.
25. Joint and Collective Work Product. This agreement is and shall be deemed and
construed to be a joint and collective work product of the City and the Owner, and, as such, this
agreement shall not be construed against 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 provisions contained herein.
26. Interpretation. This agreement shall be construed, and the rights and obligations
of the City and the Owner hereunder shall be determined, in accordance with the laws of the
State of Illinois.
27. Authority. The parties represent to each other that each has the power and
authority to enter into this Agreement in the names, titles, and capacities herein stated and on
behalf of entities, persons, estates, or firms represented or purported to be represented by such
person and further represent that all formal requirements necessary or required by any statutes,
laws, ordinances, codes, rules, regulations, orders, decrees, directives, articles of incorporation,
charters, or bylaws for each of them to enter into this Agreement have been complied with.
28. Entire Agreement., Modification., Non-Waiver of Rights. This Agreement
represents the entire agreement between the parties hereto and shall not be modified or affected
by any offer, proposal, statement, or representation, oral or written, made by or for either party in
connection with the negotiation of the terms hereof. No future modification, termination, or
amendment of this Agreement may be made, except by written agreement executed by the parties
hereto. No failure by the parties hereto to insist upon the strict performance of any covenant,
duty, agreement, or condition of this Agreement or to exercise any right or remedy upon a breach
thereof shall constitute a waiver of any such right or remedy or any other covenant, agreement,
term, or condition. Any party hereto, by written notice, may, but shall be under no obligation to,
waive any of its rights or any conditions to the obligations hereunder, or any duty, obligation, or
covenant of any other party hereto. No waiver shall affect or alter this Agreement, but each and
every covenant, agreement, term, and condition of this Agreement shall continue in full force and
effect with respect to any other then existing or subsequent breach thereof.
8
29. Time. Time shall be of the essence of this Agreement and the performance of all
covenants, agreements, and obligations hereunder.
30. Notices. All elections, notices, and other communications to be given hereunder
by either party to the other shall be in writing and sent by (i) facsimile transmission to the other
party's attorney at the number set forth below with a follow-up via United States mail, (ii)
personal delivery, (iii) overnight courier with evidence of receipt, or (iv) certified or registered
mail, return receipts requested, postage prepaid, addressed:
If to the City: City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attention: City Clerk
With a copy to: City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attention: Corporation Counsel
Facsimile: (847) 931-5665
If to the Owner: Funk Properties Limited
1471 Timber Drive
Elgin, IL 60123
Attn: President
Facsimile: (847) 741-0923
With a copy to: Richard L. Heimberg
Brady and Jensen, LLP
2425 Royal Boulevard
Elgin, IL 60123
Facsimile: (847) 695-3243
or at such other addresses or fax numbers as the parties may designate to the other by written
notice in the manner herein provided. Any such notice or election shall be effective upon
delivery, if personally delivered, one (1) day after delivery to the overnight courier or two (2)
days after depositing same in the United States mails.
31. Severability. If any one or more of the provisions contained in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions hereto, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision and not been contained
herein; provided however, that if permitted by applicable law, any invalid, illegal or
unenforceable provision may be considered in determining the intent of the parties with respect
9
to the provisions of this Agreement.
32. Captions. The paragraph captions are inserted for convenience of reference and
are in no way to be construed as a part of this Agreement or as a limitation on the scope of the
paragraphs to which they refer.
33. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois. In any legal proceeding between the parties
hereto, venue shall exclusively lie in the Sixteenth Judicial Circuit of Kane County, Illinois.
Each party hereby waives any objection it may have to the commencement or transfer of any such
proceeding to either of said venues and hereby affirmatively consents to same.
34. Successors. This Agreement shall inure to the benefit of, and shall be binding
upon the parties hereto and their respective successors, assigns and grantees and shall run with
title to the Subject Property. The City may record a memorandum of agreement placing of record
the terms, provisions and obligations of this Agreement.
IN WITNESS WHEREOF, the City of Elgin and Funk Properties Limited have
executed this Agreement the day and year first above written, intending to be legally bound
hereby and warranting authority to execute the same.
CITY OF ELGIN, an Illinois FUNK PROPERTIES LIMITED, an Illinois
Municipal Corporation Corporation
110-7
By: G�� By: G R _ _ ! l/ �,. L
Mayor
Its:
Attest: Attest:
By: By:
City Clerk
Its:
10
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, and Diane Robertson, City Clerk, 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 for the uses and purposes therein set forth.
Given under my hand an official seal, this /'7y of ,
2009.
No .
ary b� \igtoP/1--4
"OF FICIAL SEAL"
STATE OF �- — MARY GIFFOI�T
Notary f��btic,Stale of II(inois
) SS. My Commission Expires 06/13/2012
COUNTY OF )
I, the undersigned, a Notary Public, in and Aor said County, in the State aforesaid,
do hereby certify that M,c.{.. L-Q /4 c,Jc_ , and jc 1, 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.
Given under my hand an official seal, this
--Tri
of (.le_c,f2, , , 2009.
K. �� /-
Not Public
OFFICIAL SEAL
JANICE K. VIERKANDT
NOTARY PUBLIC,STATE OF ILLINOIS
MY COMMISSION EXPIRES 7.31.2013
11
EXHIBIT A
Plat of Funk Farm Property, prepared by Landmark Engineering Group, Inc., to be inserted (to be
supplied by Owner).
12
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EXHIBIT B
Plat of Highways —South Street Extension, Sheet 3 of 6,prepared by Hampton, Lenzini and
Renwick, Inc., to be inserted (to be supplied by the City).
13
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EXHIBIT C
Legal Descriptions of South Street Extension, South Street Drainage Easement, and South Street
Temporary Construction Easement to be inserted (to be supplied by the City).
14
South Street Extension
Parcel: 0003
Owner: Funk Properties, Limited
Station: 39+84.15 to 51+84.39
P.I.N.: 06-20-276-002
That part of the Northeast Quarter of Section 20, Township 41 North, Range 8 East of the Third
Principal Meridian in Kane County, Illinois, described as follows:
Commencing at the southeast corner of said Northeast Quarter; thence on an assumed bearing
of South 88 degrees 49 minutes 22 seconds West, 1,424.88 feet (1,425.00 feet) along the
south line of said Northeast Quarter to the grantor's westerly property line; thence North
00 degrees 05 minutes 32 seconds East, 433.58 feet along said westerly line to the Point of
Beginning; thence continuing North 00 degrees 05 minutes 32 seconds East, 97.77 feet along
said westerly line; thence northeasterly, 137.14 feet along a curve to the right having a radius
of 490.00 feet, the chord of said curve bears North 71 degrees 27 minutes 27 seconds East,
136.69 feet; thence North 79 degrees 28 minutes 31 seconds East, 572.43 feet; thence
northeasterly, 241.14 feet along a curve to the left having a radius of 410.00 feet, the chord of
said curve bears North 62 degrees 37 minutes 35 seconds East, 237.67 feet; thence North 45
degrees 46 minutes 40 seconds East, 122.21 feet to the southerly line of a parcel described in
Document No. 2003K097711; thence South 82 degrees 07 minutes 18 seconds East, 107.72
feet along said southerly line; thence South 45 degrees 46 minutes 40 seconds West, 188.38
feet; thence southwesterly, 291.13 feet along a curve to the right having a radius of 495.00
feet, the chord of said curve bears South 62 degrees 37 minutes 35 seconds West, 286.95 feet;
thence South 79 degrees 28 minutes 31 seconds West, 572.43 feet; thence southwesterly,
157.30 feet along a curve to the left having a radius of 405.00 feet, the chord of said curve
bears South 68 degrees 20 minutes 56 seconds West, 156.31 feet to the Point of Beginning.
EXHIBIT...2.(...,
EXHIBIT D
Plat of Easement for BRIS-20 Sanitary Sewer Easement and BRIS-20 Temporary Construction
Easements to be inserted (to be supplied by the Owner).
15
EXHIBIT E
Legal Descriptions for BRIS-20 Sanitary Sewer Easement and BRIS-20 Temporary Construction
Easements to be inserted (to be supplied by the Owner).
16
EXHIBIT F
South Street Easement Agreement to be inserted (to be supplied by the City).
17
This Instrument Prepared
by and Return After
Recording to:
Christopher J. Beck
City of Elgin
Legal Department
150 Dexter Court
Elgin IL 60120-5555
EASEMENT AGREEMENT
SOUTH STREET EXTENSION PROJECT
THIS EASEMENT AGREEMENT made and entered into this day of
, 2009, by and between the City of Elgin, an Illinois municipal corporation,
(hereinafter referred to as the "City"), and Funk Properties Limited, an Illinois corporation
(hereinafter referred to as the"Owner").
WITNES SETH
WHEREAS,the Owner is the owner of record of the real property depicted on Exhibit
F-1, attached hereto and incorporated herein by this reference, said property consisting of
approximately 50.49 acres in Kane County, Illinois (hereinafter referred to as the "Subject
Property"); and,
WHEREAS,the Owner and the City have agreed to the extension of the public right-
of-way commonly known as South Street over a portion of the Subject Property(hereinafter referred
to as the "South Street Extension Project"); and,
WHEREAS,the City desires to obtain a permanent easement from the Owner for the
purposes of installing stormwater management and drainage facilities along a portion of the South
Street extension over the Subject Property depicted by the area designated "Parcel 0003PE" on
Exhibit F-2 and legally described on Exhibit F-3, attached hereto and incorporated herein by this
reference (hereinafter referred to as the "South Street Drainage Easement Premises"); and,
1
EXHIBIT, f
WHEREAS, the City further desires to obtain a temporary construction easement
from the Owner for the purposes of constructing said South Street extension and drainage facilities
over the portion of the Subject Property depicted by the area designated"Parcel 0003TE"on Exhibit
F-2 and legally described on Exhibit F-3 (hereinafter referred to as the "South Street Temporary
Construction Easement Premises"); and,
WHEREAS, the Owner has agreed to grant such easements to the City for such
purposes and pursuant to the terms and conditions of this Easement Agreement.
NOW, THEREFORE, for and in consideration of Ten($10.00) in hand paid to the
Owner, and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. That the Owner,being the owner of the Subject Property,does hereby grant to
the City a permanent and exclusive easement to install, construct, operate, use, maintain, locate,
upgrade,repair, service,remove or replace swales and other stormwater management and drainage
facilities,along with any appurtenances or facilities related thereto,within,over,under,along,across
and through the South Street Drainage Easement Premises.
2. That the Owner does hereby further grant to the City a temporary construction
easement allowing access over,within,under,along,across and through,and use of the South Street
Temporary Construction Easement Premises for the purpose of constructing,installing,maintaining,
operating or repairing the South Street extension and the drainage facilities to be located within the
above-described South Street Drainage Easement Premises. The temporary construction easement
hereby granted shall be deemed terminated after the thirty-six (36) month period following the
commencement of construction of the South Street extension.
2
3. That following the exercise by the City of any easement rights granted herein,
the City shall promptly repair and restore the South Street Drainage Easement Premises and the
South Street 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
South Street Drainage Easement Premises and the South Street Temporary Construction Easement
Premises and surrounding premises free from debris.
4. That the City for itself,its agents and independent contractors,hereby agrees to
indemnify and hold the Owner and its successors harmless from third party claims for personal
injuries or property damage arising directly as a result of the City's work in the South Street
Drainage Easement Premises and the South Street Temporary Construction Easement Premises
during construction or during any subsequent maintenance or repair thereof The City further agrees
to indemnify and hold harmless the Owner from any and all liens placed against the South Street
Drainage Easement Premises or the South Street Temporary Construction Easement Premises arising
from said construction activities.
5. The Owner and the Owner's successors shall not construct any buildings or
structures nor plant any trees on the South Street Drainage Easement Premises, nor undertake any
other activities on the South Street Drainage Easement Premises that unreasonably interfere with the
City's intended use thereof.
6. That no amendment,revision or modification hereof shall be effective unless it
is in writing and signed by all parties hereto.
7. That this agreement constitutes the entire agreement between 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
3
and agreements that may have been made in connection with the subject matter hereof.
8. That this agreement shall be governed by and construed in accordance with the
laws of the State of Illinois.
9. That the City may utilize the services of third party contractors, employees or
other agents to perform work in either the South Street Drainage Easement Premises or the South
Street Temporary Construction Easement Premises.
10. That the Owner hereby represents and warrants to the City that it is the fee
simple title holder of the South Street Drainage Easement Premises and the South Street Temporary
Construction Easement Premises and that it has the full power and authority to enter into and make
the grant of easement as provided herein.
11. That this agreement shall be binding on the parties hereto,their successors and
permitted assigns and shall run with the land.
12. That this agreement shall be recorded by the City at the City's cost with the
Kane County Recorder.
SIGNATURE PAGE FOLLOWS
4
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 FUNK PROPERTIES LIMITED, an Illinois
Municipal Corporation Corporation
By: By:
Mayor
Its:
Attest: Attest:
By: By:
City Clerk
Its:
5
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, and Diane Robertson,City Clerk,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 for the uses and purposes therein set forth.
Given under my hand an official seal,this day of , 2009.
Notary Public
STATE OF )
) SS.
COUNTY OF )
I,the undersigned,a Notary Public,in and for said County,in the State aforesaid,do
hereby certify that ,and ,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.
Given under my hand an official seal, this day of , 2009.
Notary Public
6
EXHIBIT F-1
Plat of Funk Farm Property, prepared by Landmark Engineering Group, Inc., to be inserted (to
be supplied by Owner).
7
EXHIBIT F-2
Plat of Highways — South Street Extension, Sheet 3 of 6, prepared by Hampton, Lenzini and
Renwick, Inc., to be inserted(to be supplied by the City).
8
EXHIBIT F-3
Legal Descriptions of South Street Drainage Easement Premises and South Street Temporary
Construction Easement Premises to be inserted(to be supplied by the City).
9
EXHIBIT G
BRIS-20 Easement Agreement to be inserted (to be supplied by the City).
18
This Instrument Prepared
by and Return After
Recording to:
Christopher J. Beck
City of Elgin
Legal Department
150 Dexter Court
Elgin IL 60120-5555
EASEMENT AGREEMENT
BOWES ROAD INTERCEPTOR—TRUNK 20 PROJECT
THIS EASEMENT AGREEMENT made and entered into this day of
, 2009, by and between the City of Elgin, an Illinois municipal corporation,
(hereinafter referred to as the "City"), and Funk Properties Limited, an Illinois corporation
(hereinafter referred to as the"Owner").
WITNES SETH
WHEREAS,the Owner is the owner of record of the real property depicted on Exhibit
G-1, attached hereto and incorporated herein by this reference, said property consisting of
approximately 50.49 acres in Kane County, Illinois (hereinafter referred to as the "Subject
Property"); and,
WHEREAS,the City desires to obtain a permanent easement from the Owner for the
purposes of constructing, maintaining, operating and repairing a sewer line, relating to the City's
Bowes Road Interceptor Sewer— Trunk 20 (`KRIS-20") Project, over that portion of the Subject
Property depicted by the area designated "Sanitary Sewer Easement" on Exhibit G-2 and legally
described on Exhibit G-3,to be attached hereto and incorporated herein by this reference(hereinafter
referred to as the `KRIS-20 Sanitary Sewer Easement Premises"); and,
WHEREAS,the City further desires to obtain temporary construction easements from
the Owner for the purposes of constructing said sewer line over those portions of the Subject
1 EXHIBIT
Property depicted by the areas designated"Temporary Construction Easement#1"and"Temporary
Construction Easement#2"on Exhibit G-2 and legally described on Exhibit G-3(hereinafter referred
to as the "BRIS-20 Temporary Construction Easement Premises"); and,
WHEREAS, the Owner has agreed to grant such easements to the City for such
purposes and pursuant to the terms and conditions of this Easement Agreement.
NOW, THEREFORE, for and in consideration of Thirty Thousand Dollars
($30,000.00)in hand paid to the Owner,and other good and valuable consideration,the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. That the Owner,being the owner of the Subject Property,does hereby grant to
the City a permanent and exclusive easement to install, construct, operate, use, maintain, locate,
upgrade, repair, service, remove or replace sewer lines, along with any appurtenances or facilities
related thereto,within,over,under,along,across and through the BRIS-20 Sanitary Sewer Easement
Premises.
2. That the Owner does hereby further grant to the City a temporary construction
easement allowing access over, within, under, along, across and through, and use of the BRIS-20
Temporary Construction Easement Premises for the purpose of constructing,installing,maintaining,
operating or repairing said sewer line under and through the above-described BRIS-20 Sanitary
Sewer Easement Premises. The temporary construction easement hereby granted shall be deemed
terminated after the thirty-six(36)month period following the commencement of construction of the
sewer line improvements within the BRIS-20 Sanitary Sewer Easement Premises.
3. That following the exercise by the City of any easement rights granted herein,
the City shall promptly repair and restore the BRIS-20 Sanitary Sewer Easement Premises and the
BRIS-20 Temporary Construction Easement Premises to the same condition as existed immediately
2
prior to the existence of such rights as is reasonably practicable and shall leave the BRIS-20 Sanitary
Sewer Easement Premises and the BRIS-20 Temporary Construction Easement Premises and
surrounding premises free from debris.
4. In the construction of the sewer line within the BRIS-20 Sanitary Sewer
Easement Premises, the City agrees that the following guidelines shall control:
A. Topsoil shall be stripped from the applicable easement parcel and stockpiled
within areas designated by the Owner;
B. Excavated trench spoils shall be stockpiled separate from the topsoil and
stockpiled within areas designated by the Owner;
C. After pipe installation, trench spoils shall be placed back in the trench in
uniform layers not exceeding twelve (12) inches thick (loose measure) and
each layer shall be compacted with mechanical equipment to ninety percent
(90%) of maximum density as determined by the Standard Proctor Test;
D. Excess clay material shall be placed over the entire easement parcel in
uniform layers and compacted to the specifications set forth in the foregoing
subparagraph C;
E. Approximately six (6) inches of topsoil shall be respread over the entire
easement parcel and the unused topsoil shall remain in the stockpile;
F. Final grading shall be performed in such a manner that adheres to drainage
patterns prior to initiation of the installation; under no circumstances shall
there be any ponding of stormwater runoff in areas where ponding did not
occur prior to construction contemplated in this Easement Agreement; and,
G. The entire easement parcel shall be seeded with rye or oats upon completion
of final grading. Planting of seed shall occur between May 1 and September
30, unless directed otherwise by the Owner.
5. That the City for itself,its agents and independent contractors,hereby agrees to
indemnify and hold the Owner and its successors harmless from third party claims for personal
injuries or property damage arising directly as a result of the City's work in the BRIS-20 Sanitary
Sewer Easement Premises and the BRIS-20 Temporary Construction Easement Premises during
3
construction or during any subsequent maintenance or repair thereof. The City further agrees to
indemnify and hold harmless the Owner from any and all liens placed against the BRIS-20 Sanitary
Sewer Easement Premises or the BRIS-20 Temporary Construction Easement Premises arising from
said construction activities.
6. The Owner and the Owner's successors shall not construct any buildings on the
BRIS-20 Sanitary Sewer Easement Premises nor undertake any other activities on the BRIS-20
Sanitary Sewer Easement Premises that unreasonably interfere with the City's intended use of the
BRIS-20 Sanitary Sewer Easement Premises. Anything contained in this Agreement to the contrary
notwithstanding, it is understood that the Owner shall have, and hereby reserves, the right to (i)
construct or otherwise install surface improvements consisting of parking lot improvements,private
or publicly dedicated streets and sidewalks,bicycle and pedestrian paths, and landscaping, and(ii)
install utility lines and related appurtenances which cross perpendicularly through the BRIS-20
Sanitary Sewer Easement Premises as reasonably required to service the development on the Subject
Property, provided that such is done in a manner which does not unreasonably interfere with the
City's intended use of the BRIS-20 Sanitary Sewer Easement Premises.
7. That no amendment,revision or modification hereof shall be effective unless it
is in writing and signed by all parties hereto.
8. That this agreement constitutes the entire agreement between 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. That this agreement shall be governed by and construed in accordance with the
laws of the State of Illinois.
4
10. That the City may utilize the services of third party contractors, employees or
other agents to perform work in either the BRIS-20 Sanitary Sewer Easement Premises or the BRIS-
20 Temporary Construction Easement Premises.
11. That the Owner hereby represents and warrants to the City that it is the fee
simple title holder of the BRIS-20 Sanitary Sewer Easement Premises and the BRIS-20 Temporary
Construction Easement Premises and that it has the full power and authority to enter into and make
the grant of easement as provided herein.
12. That this agreement shall be binding on the parties hereto,their successors and
permitted assigns and shall run with the land.
13. That this agreement shall be recorded by the City at the City's cost with the
Kane County Recorder.
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 FUNK PROPERTIES LIMITED, an Illinois
Municipal Corporation Corporation
By: By:
Mayor
Its:
Attest: Attest:
By: By:
City Clerk
Its:
5
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, and Diane Robertson, City Clerk,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 for the uses and purposes therein set forth.
Given under my hand an official seal, this day of , 2009.
Notary Public
STATE OF )
) SS.
COUNTY OF )
I,the undersigned, a Notary Public,in and for said County,in the State aforesaid,do
hereby certify that ,and ,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.
Given under my hand an official seal, this day of , 2009.
Notary Public
6
EXHIBIT G-1
Plat of Funk Farm Property,prepared by Landmark Engineering Group, Inc., to be inserted (to
be supplied by Owner).
7
EXHIBIT G-2
Plat of Easement for BRIS-20 Sanitary Sewer Easement and BRIS-20 Temporary Construction
Easements to be inserted (to be supplied by the Owner).
8
EXHIBIT G-3
Legal Descriptions for BRIS-20 Sanitary Sewer Easement and BRIS-20 Temporary Construction
Easements to be inserted(to be supplied by the Owner).
9
EXHIBIT H
Funk Farm—Concept Plan A to be inserted (to be supplied by the Owner).
19
42
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Elgin, Illinois
EXHIBIT /I
.0 OF E40
Mn ti Memorandum
,t City ofElgin
moo,;: a ,, ,
rn tie
0R41ED FE6
Date: October 26, 2009
To: Mary Giffort, Paralegal
From: Jennifer Quinton, Deputy City Clerk
Subject: Resolution No. 09-213, Adopted at the October 14, 2009, Council Meeting
Enclosed you will find the agreement listed below. Please retain a copy for your records. If you
have any questions please feel free to contact our office 847-931-5660 and we will do our best to
assist you. Thank you.
• Development Agreement with Funk Properties Limited
'4
• ♦•: ET '_I
September 17, 2009
TO: Mayor and Members of the City Council 1)L,,,,.hot Ia.' 13,,,•"
FROM: Sean Stegall, City Manager
Christopher J. Beck, Assistant Corporation Counsel
SUBJECT: Proposed Agreement with Funk Properties Limited
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider a proposed Agreement between the City and Funk Properties Limited to
provide for the City's acquisition of necessary right-of-way for the extension of South Street and
easements for the Bowes Road Interceptor Sewer—Trunk 20 Project.
RECOMMENDATION
It is recommended that the City Council approve the proposed Agreement at a cost of
$32,150.00.
BACKGROUND
Funk Properties Limited is the owner of certain property consisting of approximately 50.49 acres
located west of Randall Road, behind and to the south of the Target and Otter Creek properties.
The plans for the City's South Street extension project call for South Street to extend across a
portion of the owner's property. In addition, the plan's for the City's Bowes Road Interceptor
Sewer — Trunk 20 (BRIS-20) project call for a portion of the sewer system to be located
underneath South Street and to then extend north across the owner's property. The City has
approached the owner to acquire the necessary right-of-way and easements for the South Street
extension and BRIS-20 projects.
Attached is a proposed Agreement that has been negotiated between Funk Properties Limited
and the City providing for the City's acquisition of the necessary right-of-way and easements.
The Agreement may be summarized as follows:
1. The owner would convey the land necessary for the extension of South Street across its
property to the City at no cost within sixty (60) days of the entry into the Agreement.
Agreement with Funk Properties Limited
September 17, 2009
Page 2
The City had previously obtained an appraisal of the fair market value of the required
right-of-way for the South Street extension, which provided a fair market value of
$117,500.00.
2. The owner would also convey to the City the easements necessary for the construction of
the Bowes Road Interceptor Sewer — Trunk 20 across its property. The City would pay
the owner $30,000.00 for the easements, which amount is consistent with a prior
appraisal obtained by the City of the fair market value of similar easements over the
property.
3. The owner would prepare the plats of easement for the BRIS-20 sewer easements, and
the City would reimburse the owner its costs for the same. The costs for the plats of
easement and a related topographic survey have been estimated at $2,150.00. The City is
typically responsible for the costs of preparing such plats in connection with its capital
improvement projects.
4. In consideration, the owner would not be required to pay any construction or recapture
costs relating to the construction of the South Street extension or the BRIS-20 sewer.
5. The City would agree to support the owner's rezoning of the property from its existing
SFR2 — Single Family Residence District zoning classification to a PAB Planned area
Business District zoning classification with multiple-family residential as a permitted use
that would permit the development of the property with commercial and residential
townhome uses. A concept plan generally depicting the owner's contemplated use of the
property is attached hereto.
6. The City would agree to the owner's proposed alignment for the extension of Weldwood
Drive across its property. The owner would be responsible for the construction of any
extension of Weldwood Drive at such time as the property is developed.
7. The City would agree that, if in connection with the development of the property the
owner seeks to construct an access drive from the property to Randall Road, the City
would support the owner's application to the Kane County Department of Transportation.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None.
Agreement with Funk Properties Limited
September 17, 2009
Page 3
FINANCIAL IMPACT
There are sufficient funds budgeted ($172,035.00) and available ($88,010.00) in the Bowes
Road/Trunk 20 fund, account numbers 367-4200-795.92-41, 396-4200-795.93-41 and 380-4200-
795.93-41.
LEGAL IMPACT
None.
ALTERNATIVES
1. The City Council may choose to approve the Agreement as presented or in an amended
form.
2. The City Council may choose not to enter into an Agreement regarding the proposed
South Street extension and Bowes Road Interceptor Sewer—Trunk 20 Project.
Respectfully submitted for Council consideration.
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