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14-186 Resolution No. 14-186 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH VALLEY CREEK OF ELGIN, INC. REGARDING THE TYLER CREEK DETENTION BASIN AND THE PAYMENT OF CONTRIBUTIONS RELATING THERETO BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Valley Creek of Elgin, Inc. regarding the Tyler Creek Detention Basin and the payment of contributions relating thereto, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: December 17, 2014 Adopted: December 17, 2014 Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk S 5 AGREEMENT THIS Agreement is made and entered into this 8th day of December, 2014, by and between the City of Elgin, Illinois, a municipal corporation(hereinafter referred to as the "City"), and Valley Creek of Elgin, Inc., a Delaware corporation("Valley Creek of Elgin"). WHEREAS, the City, Valley Creek of Elgin, Mark Avenue West, LLC and Elgin- Randall Rd, LLC entered into a development agreement dated October 12, 2005, relating to the approximately sixty (60) acres of property commonly known as 900 N. Lyle Avenue, such property being legally described in the development agreement (such development agreement is hereinafter referred to as the "Subject Development Agreement" and such property is hereinafter referred to as the "Valley Creek Townhome Property"); and WHEREAS, Valley Creek of Elgin is the owner of the Valley Creek Townhome Property; and WHEREAS, Mark Avenue West, LLC, was an entity owned and controlled by Valley Creek of Elgin which was involuntarily dissolved on January 11, 2008, and Mark Avenue West, LLC, no longer has an interest in the Subject Development Agreement or the Valley Creek Townhome Property; and WHEREAS, Elgin-Randall Rd, LLC, was the contract purchaser of the Valley Creek Townhome Property, but never acquired the Valley Creek Townhome Property and was involuntarily dissolved on May 9, 2008, and Elgin-Randall Rd, LLC, no longer has an interest in the Subject Development Agreement or the Valley Creek Townhome Property; and WHEREAS, the Valley Creek Townhome Property was part of the larger property known as the Valley Creek property which was annexed and developed pursuant to an annexation agreement dated September 28, 1978, between the City and Valley Creek of Elgin and others; and WHEREAS, such annexation agreement was subsequently amended pursuant to a first amendment as of February 11, 1979; a second amendment dated June 24, 1981; a third amendment dated July 9, 1984; and a fourth amendment dated March 10, 1986 (such annexation agreement as amended, is hereinafter referred to as the "Subject Annexation Agreement"); and WHEREAS, the Subject Annexation Agreement provided that all storm water retention for the Valley Creek development was to be provided offsite by means of the proposed Tyler Creek Detention Basin to be constructed by the City at its cost; and WHEREAS, the Subject Annexation Agreement further provided in Paragraph 8 of the annexation agreement that Valley Creek of Elgin would pay to the City a per acre fee towards the costs of the construction of such Tyler Creek Detention Basin (the "Valley Creek Share"); and WHEREAS, the Tyler Creek Detention Basin was not constructed and the portions of the Valley Creek property which have previously been developed by Valley Creek of Elgin did not include onsite storm water retention or detention; and WHEREAS, the Subject Annexation Agreement had a term of ten years and expired in September of 1988; and WHEREAS, Valley Creek of Elgin has requested reimbursement of a portion of its payments to City of the Valley Creek Share; and WHEREAS, the City has denied any liability to Valley Creek of Elgin to pay or reimburse to Valley Creek of Elgin any monies including, but not limited to the Valley Creek Share; and WHEREAS, Valley Creek of Elgin and the City are interested in avoiding further disputes and in fully expeditiously resolving any and all claims relating to Subject Annexation Agreement and/or the Valley Creek Share; and WHEREAS, the parties, without any concession or admission of any liability by the City (and with the City expressly denying any liability), desire to memorialize their agreement and to affect a full, complete, final and binding settlement and compromise with prejudice of any and all claims that Valley Creek of Elgin may have against the City including, but not limited to, any and all claims arising under or relating to the Subject Annexation Agreement and/or the Valley Creek Share. NOW, THEREFORE, for and in consideration of the mutual undertakings 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. The foregoing recitals are incorporated into this Agreement. 2. The City shall pay to Valley Creek of Elgin within thirty (30) days of the complete execution of this Agreement the total amount of Thirty Thousand Six Hundred Seventy-Nine and 80/100 Dollars ($30,679.80) in full and complete satisfaction of any and all claims and other matters of Valley Creek of Elgin arising under or relating to the Subject Annexation Agreement and/or the Valley Creek Share. Such payment shall be delivered to counsel for Valley Creek of Elgin, Jonathan L. Carbary, Law Office of Jonathan L. Carbary, Ltd., 1814 Grandstand Place, Elgin, Illinois 60123. 3. In consideration of the mutual promises contained herein and effective upon receipt of the payment by Valley Creek of Elgin referred to in Paragraph 2 hereof, Valley Creek of Elgin, for itself, its parent, subsidiaries, affiliates, successors, assigns, officials, officers, shareholders, representatives, employees, and successors and assigns, and any other persons or entities claiming through Valley Creek of Elgin, including, but not limited to, Mark Avenue West, LLC and/or Elgin-Randall Rd, LLC (collectively, the "Valley Creek of Elgin Releasors") jointly and severally, hereby fully and irrevocably releases and discharges the City of Elgin, its - 2 - officials, officers, employees, agents, representatives, attorneys, consultants, predecessors, successors and assigns, (collectively, the "City Released Parties"), jointly and severally, from any and all claims, demands, liens, obligations, actions, causes of actions, damages, liabilities, balances, money owed, losses, costs, attorneys' fees, interest or expenses, of any nature whatsoever, whether known or unknown, whether in law or in equity, arising at any time, or arising out of or relating to the Subject Annexation Agreement and/or the Valley Creek Share. 4. A "covenant not to sue" is a legal term for a promise not to file a lawsuit in court. It is different from the release of claims and matters contained in Paragraph 3 of this Agreement. In addition to waiving and releasing the claims and matters covered by Paragraph 3 above, Valley Creek of Elgin on behalf of itself and the Valley Creek of Elgin Releasors, agrees never to sue the City Released Parties in any forum for any reason arising out of the Subject Annexation Agreement and/or the Valley Creek Share including, but not limited to, the claims and matters covered by the release language in Paragraph 3 of this Agreement. 5. The entry into this Agreement is not an admission of liability on the part of the City and the City specifically denies any liability as to the Subject Annexation Agreement and/or the Valley Creek Share and denies that it has any liability to Valley Creek of Elgin and/or the Valley Creek of Elgin Releasors whatsoever, and intends merely to avoid litigation and expense by entering into this Agreement. The parties agree that it is their mutual intention that neither this Agreement nor any of the terms hereof shall be admissible for any purpose in any future proceedings against the City or any of the City Released Parties, except in a proceeding to enforce this Agreement. 6. This Agreement contains the entire understandings and agreements of the parties with respect to the settlement of claims relating to the Subject Annexation Agreement and/or the Valley Creek Share. All oral or written agreements between the parties prior to the effective date of this Agreement which relate to the settlement of claims with respect to the Subject Annexation Agreement and/or the Valley Creek Share are declared null and void. Any modification of this Agreement must be made in writing and executed by the parties hereto. 7. It is understood and agreed by the parties hereto that this Agreement shall be construed without regard to any presumption or other rule requiring construction against the drafting party. 8. The terms of the Subject Development Agreement are hereby ratified by the parties hereto and the Subject Development Agreement remains in full force and effect. Without limiting the foregoing, it is agreed and understood that in connection with the development of the Valley Creek Townhome Property that Valley Creek of Elgin, or its successors and assigns with respect to the Valley Creek Townhome Property, shall provide at its cost for onsite storm water detention and retention as required in the approved plans for the development of such property, as such approved plans may be amended as approved by the City, and as otherwise required by law. 9. This Agreement may be executed in counter-parts. Signatures transmitted by facsimile or e-mail shall have the same legal effect as an original signature. - 3 - 10. The parties agree that no third party shall have any rights under this Agreement. 11. This Agreement shall be governed by the law of the State of Illinois. 12. This Agreement may not be assigned by any party without the written consent of the other parties. Any assignment in violation of this provision will be void. IN WITNESS WHEREOF, the parties have executed this Agreement this 8th day of December, 2014. CITY OF IN, a m - ipal corporation, VALLEY CREEK OF ELGIN, INC. By Ma r Its President Attest: City 66rk \\ELGINFILEI\CityHalft egal Dept\Agreement\Development Agr-Valley Creek&Mark Ave-Amendment-clean 12-8-14.docx -4 -