HomeMy WebLinkAboutRESOLUTION - 49-24 - 9/10/2024 - WINGSPAN SANITARY SEWER CONSTRUCTION AND MAINTENANCE AGREEMENT, ARLINGTONA ND HIGGINSRESOLUTION NO. 49-24
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE
A SANITARY SEWER CONSTRUCTION AND MAINTENANCE AGREEMENT WITH
WINGSPAN DEVELOPMENT GROUP, LLC (ARLINGTON HEIGHTS AND HIGGINS
ROAD)
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows:
Section 1: That the Mayor be and is hereby authorized to sign the attached documents
marked:
SANITARY SEWER CONSTRUCTION AND MAINTENANCE AGREEMENT
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk
is authorized to attest said documents upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its passage
and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 10" day of September 2024
APPROVED this 10" day of September2024
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Loretta M. Murphy, Village Clerk
IZI'S SAvi F:%RN 14A{ ER C 0AN"I R IC I RYN D V %i,N V I, % 4N(F '�-
THIS DOCUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
Village of Elk Grove Village
Attn: Village Manager
901. Wellington Avenue
Elk Grove Village, IL 60007
Above Space for Recorder's Use Only
SANITARY SEWER CONSTRUCTION AND MAINTENANCE AGREEMENT
THIS SANITARY SEWER CONSTR�TION A A TENANCE AGREEMENT
("Agreement"), made and entered into this Off- of 2024 by and between
WINGSPAN DEVELOPMENT GROUP, LLC, an Illinois limited liability company ("Wingspan"), and
ELK GROVE VILLAGE, COOK AND DUPAGE COUNTIES, ILLINOIS, an Illinois home rule
municipal corporation ("Village") (collectively, Wingspan and the Village are the "Parties" and
sometimes, individually, a "Party").
W ITNESSETH:
WHEREAS, Village is the current holder of fee simple title to the real property described in
Exhibit "A" attached hereto and made a part hereof (the "Property"); and
WHEREAS, on or about January 23, 2024, Wingspan and the Village entered into an agreement
(as amended, the "Purchase and Sale Agreement") authorizing Wingspan to acquire and develop the
Property with a mixed -use development. ("Development"); and
WHEREAS, as part of the Development, Wingspan must construct a sanitary sewer main
("Sanitary Sewer"') across that portion of the Property generally depicted in Exhibit "B"; and
WHEREAS, the Parties desire to enter into an agreement addressing the construction and
maintenance of the Sanitary Sewer and matters related to the Metropolitan Water Reclamation District of
Greater Chicago ("MWRD"), including the MWRD permit and Schedule R, all as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreement of the Parties
hereto, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Parties hereto agree as follows:
I. Recitals and Exhibits. The foregoing recitals and all exhibits attached to this Agreement
are incorporated by this reference.
2. Construction of Sanitary Sewer. Wingspan shall, at its sole cost, construct the Sanitary
Sewer in accordance with all applicable federal, state, and local laws, rules, and regulations, as amended,
and the Purchase and Sale Agreement (collectively, "Requirements of Law"). Upon Wingspan's
completion of the Sanitary Sewer, Wingspan will notify the Village and the Village will (a) inspect the
Sanitary Sewer for compliance with the Requirements of Law; and (b) upon confirming compliance with
the Requirements of Law and Wingspan (i) satisfying the provisions of Section 3 and (ii) depositing with
the Village the guaranty surety required by the Village of Elk Grove Village Municipal Code ("Village
Code"), the Village will accept the Sanitary Sewer as a public improvement in accordance with the
provisions of the Village Code.
3. Sanitary Sewer Easement. On or before the Village accepts the Sanitary Sewer as a
public improvement, Wingspan will grant the Village, at no cost to the Village, an easement ("Utility
Easement") in a form and substance approved by the Village Attorney authorizing the Village to maintain,
repair, and replace the Sanitary Sewer (collectively, "Utility Work"), together with the right of access
across the Property to undertake the Utility Work, should Wingspan fail or refuse to timely or adequately
undertake such Utility Work. The Utility Easement shall also authorize the Village to recover any costs
and fees the Village incurs enforcing its rights under the Utility Easement including, without limitation,
costs and fees incurred while performing the Utility Work. Wingspan shall reimburse all such costs to the
Village no later than thirty (30) days after Wingspan's receipt of invoice(s) for such costs. If Wingspan
fails to remit payment in full in accordance with this Section, the Village may file all unpaid invoices, or
parts thereof, together with the maximum interest rate permitted by law and the Village's costs of
collection, as a lien against the Property, and, without limiting other remedies available at law or in equity,
the Village shall have the right to enforce and collect upon the lien in any manner provided for by law.
For the avoidance of doubt, the Utility Easement will grant the Village the right to perform the Utility
Work, but the Village will have no obligation under the Utility Easement or otherwise to undertake the
Utility Work.
4. Maintenance of Sanitary Sewer_ . Throughout the construction of and on and after the
date the Village accepts the Sanitary Sewer as a public improvement, Wingspan will, at its sole cost, be
solely responsible for timely and fully performing all Utility Work in accordance with the Requirements
of Law. For the avoidance of doubt, the Parties understand and agree that the Village's acceptance of the
Sanitary Sewer as a public improvement shall impose no affirmative obligation on the Village to undertake
the Utility Work or any other work related to the Sanitary Sewer. Wingspan acknowledges and agrees that
the Utility Work is solely its responsibility and any entry onto the Property by the Village or its contractors
are an extraordinary circumstance brought about by (i) Wingppan's own negligence concerning the
Sanitary Sewer and/or the Utility Work; and or (ii) Wingspan's own failure or refusal to undertake the
Utility Work.
5. MWRD Permit. Wingspan shall be responsible, at its sole cost, for obtaining all
applications and documents necessary to obtain the permit(s) necessary from MWRD to construct and
operate the Development. Upon Wingspan's request, the Village will execute and submit all necessary
documentation required by applicable law for the submission for the MWRD permit; provided, however,
that the Village shall not be required to incur any costs while supporting Wingspan's MWRD permit
application. Upon Wingspan acquiring title to any portion of the Property, Wingspan shall promptly
submit a revised Schedule R along with the revised MWRD permit.
6. Hold Harmless; Indemnification.. Wingspan, for itself, its successors, grantees, invitees
and assigns, and for those claiming by, through or under any of them, hereby releases Village, its officers,
directors, agents and employees (collectively, "Indemnitees") from any and all claims or demands for
Loss, liability, expense, cost or damage (whether to person or property), including, without limitation,
reasonable attorneys' fees and litigation costs incurred by the Indemnitees in connection therewith, that
may arise from, result from or directly or indirectly relate to the construction, operation, maintenance, and.
repair of the Sanitary Sewer. Wingspan hereby agrees to indemnify, defend and hold harmless the
Indemnitees from and against any and all liability, loss, claim, demand, lien, damage, penalty, fine,
interest, cost and expense (including, without limitation, reasonable attorneys' fees and litigation costs)
incurred by the Indemnitees for injuries to persons (including, without limitation, loss of life) and for
damage, destruction or theft of property which is directly or indirectly due to the activity, work or thing
done, permitted or suffered by Wingspan in or about the Property, or for any act or omission of Wingspan,
its successors, grantees, invitees and assigns and any of their officers, directors, employees,
representatives and agents.
7. Insurance. _Wingspan, at its sole cost and expense, shall purchase and keep in full force and
effect during the Agreement's term:
(a) Commercial General Public Liability Insurance (including, but not limited to, contractual
liability insurance covering, without limitation, Wingspan's indemnification obligations hereunder) in an
amount not less than One Million Dollars ($1,000,000.00) per occurrence whether involving bodily injury
liability (or death resulting therefrom) or property damage liability or a combination thereof with a minimum
aggregate limit of Two Million Dollars ($2,000,000.00) and workers compensation in statutory amounts;
(b) Wingspan, simultaneously with the execution hereof, shall deposit with Village original
insurance policies evidencing the foregoing coverages, together with satisfactory evidence of payment of the
premiums thereon. All such insurance shall name the Indemnitees as additional insureds_
8. Entire Agreement; Amendment; Controlling Law. This Agreement contains the entire
agreement of the Parties and cannot be amended or modified except by written agreement of both Parties. This
Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois.
9. No Transfer. Wingspan shall not transfer, assign, pledge, or convey any of its rights or
obligations hereunder without the prior written consent of Village. Any such transfer, assignment, pledge,
or conveyance made without the prior written consent of Village shall be null and void and of no force or
effect. Notwithstanding the foregoing, Wingspan shall be entitled to assign its rights and obligations under
this Agreement to an entity that Wingspan owns or controls without the prior written consent of Village;
provided, however, that Wingspan, by no later than 10 days after any such assignment, provides the Village
written notice of the assignment and written proof that the assignment complies with this Section's terms.
10. Miscellaneous.
A. Time of the Essence. Time is of the essence in the performance of all of the terms and
conditions of this Agreement.
B. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original and all of which shall together constitute one and the same instrument.
C. Non -Waiver. Failure of either Party to this Agreement to insist upon the strict and prompt
performance of the License, rights, restrictions, agreements and covenants contained in this Agreement shall
not constitute or be construed as a waiver, abandonment or relinquishment of either Party's right thereafter
to enforce any such License, rights, restrictions, agreements or covenants, and the same shall continue in full
force and effect.
D. No Third Party Beneficiaries. No claim as a third -party beneficiary under this Agreement
by any person or entity shall be made, or be valid, against the Village or Wingspan.
E. Interpretation. This Agreement shall be construed without regard to the identity of the Party
who drafted the various provisions of this Agreement. Moreover, each and every provision of this
Agreement shall be construed as though the Parties participated equally in the drafting of this Agreement.
As a result of the foregoing, any rule or construction that a document is to be construed against the drafting
Party shall not be applicable to this Agreement.
F. Binding Effect. All obligations assumed by Wingspan under this Agreement shall be
binding on Wingspan individually, on any and all of the Wingspan's successors, and assigns, and on any and
all of the respective successor legal or beneficial owners of all or any portion of the Property. Upon
Wingspan acquiring title to any portion of the Property, this Agreement shall be recorded against that portion
of the Property that Wingspan acquires.
G. Relationship. Nothing herein shall be construed to create or infer a partnership, joint venture,
or agency relationship between the Parties or their successors or assigns or to render either Party liable for
the debts or obligations of the other. 1.
[Signature page Agreement to follow)
4
IN WITNESS WHEREOF, the Parties have signed, sealed and delivered this Agreement the day
and year first above written.
WINGSPAN DEVELOPMENT GROUP, LLC,
An Illinois li&iabilitycom ny
By:
Name:
Its:
VILLAG F EIXGROVE VILLAGE,
An Illi;6'isMurskllpal Corporation
By:
Name:
Its:
FXEIIBI`I A - Lcaal Deserintion of the Property
PARCEL 1:
LOT 1 IN SHELL OIL COMPANY'S CONSOLIDATION PLAT OF PART OF THE SOUTHEAST QUARTER
OF SECTION 21, TOWNSHIP 41 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN
ACCORDING TO THE PLAT THEREOF RECORDED AS DOCUMENT NUMBER 92476264, IN COOK
COUNTY, ILLINOIS, EXCLUDING THAT PART OF SAID LOT 1 CONVEYED TO THE ILLINOIS
DEPARTMENT OF TRANSPORTATION PER FINAL JUDGEMENT ORDER FOR CONDEMNATION CASE
NO. 941-50322 RECORDED AS DOCUMENT 00391601.
PARCEL 2:
THAT PART OF LOT 1 IN ELK GROVE VILLAGE SECTION 1 NORTH, BEING A SUBDIVISION IN THE
SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING NORTHERLY OF A LINE DRAWN FROM A POINT IN THE MOST
EASTERLY LINE OF SAID LOT 1, 241.29 FEET NORTHERLY AS MEASURED ALONG SAID EASTERLY
LINE OF THE SOUTHEASTERLY CORNER OF SAID LOT 1, TO A POINT IN THE MOST WESTERLY LINE
OF SAID LOT 1, 191.54 FEET NORTHERLY OF THE SOUTHWESTERLY CORNER OF SAID LOT 1, IN
COOK COUNTY, ILLINOIS. EXCLUDING THAT PART OF SAID LOT 1 OBTAINED BY THE ILLINOIS
DEPARTMENT OF TRANSPORTATION BY CONDEMNATION CASE NO. 94L50598
PARCEL 3:
THAT PART OF LOT 1 IN ELK GROVE VILLAGE SECTION 1 NORTH, BEING A SUBDIVISION IN THE
SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING SOUTHERLY OF A LINE DRAWN FROM A POINT IN THE MOST
EASTERLY LINE OF SAID LOT 1, 241.29 FEET NORTHERLY AS MEASURED ALONG SAID EASTERLY
LINE OF THE SOUTHEASTERLY CORNER OF SAID LOT 1, TO A POINT IN THE MOST WESTERLY LINE
OF SAID LOT 1, 191.54 FEET NORTHERLY OF THE SOUTHWESTERLY CORNER OF SAID LOT 1, IN
COOK COUNTY, ILLINOIS. EXCLUDING THAT PART OF SAID LOT 1 CONVEYED TO THE ILLINOIS
DEPARTMENT OF TRANSPORTATION BY TRUSTEE'S DEED RECORDED AS DOCUMENT 94119736.
ALSO BEING DESCRIBED AS FOLLOWS:
THAT PART OF THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP 41 NORTH, RANGE 11 EAST
OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 1 IN ELK GROVE VILLAGE SECTION 1 NORTH
SUBDIVISION, BEING A SUBDIVISION IN THE SOUTHEAST QUARTER OF SECTION 21, TOWNSHIP
41 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MEDIAN ACCORDING TO THE PLAT THEREOF
RECORDED JANUARY 21, 1957 AS DOCUMENT NUMBER 16806228 ALSO BEING A POINT ON THE
EAST RIGHT-OF-WAY LINE OF ARLINGTON HEIGHTS ROAD; THENCE NORTH 09 DEGREES 41
MINUTES 05 SECONDS EAST, ALONG SAID EAST RIGHT-OF-WAY LINE, A DISTANCE OF 95.76 FEET;
THENCE NORTH 12 DEGREES 53 MINUTES 00 SECONDS EAST, ALONG SAID EAST RIGHT-OF-WAY
LINE OF ARLINGTON HEIGHTS ROAD AS CONVEYED TO THE ILLINOIS DEPARTMENT OF
TRANSPORTATION PER DOCUMENT NUMBER 94119736 AND PER CONDEMNATION CASE
NUMBER 94L50598, A DISTANCE OF 385.34 FEET TO A POINT OF CURVE; THENCE NORTHERLY A
DISTANCE OF 222.36 FEET ALONG SAID EAST RIGHT-OF-WAY LINE, BEING THE ARC OF A 2945.57
FOOT RADIUS CURVE TO THE RIGHT, CHORD BEARING NORTH 11 DEGREES 47 MINUTES 38
SECONDS EAST, A DISTANCE OF 222.31 FEET TO A POINT ON CURVE ALSO BEING THE SOUTHWEST
CORNER OF LOT 1 IN SHELL OIL COMPANY'S CONSOLIDATION RECORDED JUNE 30, 1992 AS
DOCUMENT NUMBER 92476264; THENCE CONTINUING A DISTANCE OF 155.93 FEET, ALONG SAID
EAST RIGHT-OF-WAY LINE AS CONVEYED TO THE ILLINOIS DEPARTMENT OF TRANSPORTANTION
PER DOCUMENT NUMBER 00391601, BEING THE ARC OF A 2945.57 FOOT RADIUS CURVE TO THE
RIGHT, CHORD BEARING NORTH 15 DEGREES 28 MINUTES 23 SECONDS EAST, A DISTANCE OF
155.91 FEET TO A POINT ON THE CURVE; THENCE NORTHEASTERLY A DISTANCE OF 27.90 FEET,
ALONG THE ARC OF A 20.00 FOOT RADIUS CURVE TO THE RIGHT, CHORD BEARING NORTH 56
DEGREES 57 MINUTES 20 SECONDS EAST, A DISTANCE OF 25.69 FEET TO A POINT ON THE SOUTH
RIGHT-OF-WAY LINE OF ILLINOIS ROUTE 72 ALSO KNOWN AS HIGGINS ROAD AS DEDICATED PER
DOCUMENT NUMBER 16806228; THENCE SOUTH 83 DEGREES 04 MINUTES 42 SECONDS EAST,
ALONG SAID RIGHT-OF-WAY LINE, A DISTANCE OF 195.93 FEET; THENCE SOUTH 13 DEGREES 50
MINUTES 46 SECONDS WEST, ALONG SAID RIGHT-OF-WAY LINE, A DISTANCE OF 23.15 FEET;
THENCE SOUTH 82 DEGREES 45 MINUTES 10 SECONDS EAST, ALONG SAID RIGHT-OF-WAY LINE, A
DISTANCE OF 397.66 FEET TO THE NORTHEAST CORNER OF SAID LOT 1 IN ELK GROVE VILLAGE
SECTION 1 NORTH SUBDIVISION; THENCE SOUTH 07 DEGREES 10 MINUTES 53 SECONDS WEST,
ALONG SAID EAST LINE OF LOT 1, A DISTANCE OF 111.56 FEET, THENCE SOUTHWESTERLY A
DISTANCE OF 213.35 FEET, ALONG SAID EAST LINE, BEING THE ARC OF A 381.49 FOOT RADIUS
CURVE TO THE RIGHT, CHORD BEARING SOUTH 23 DEGREES 12 MINUTES 11 SECONDS WEST, A
DISTANCE OF 210.58 FEET, THENCE SOUTH 39 DEGREES 13 MINUTES 29 SECONDS WEST, ALONG
SAID EAST LINE, A DISTANCE OF 647.07 FEET TO THE SOUTHEAST CORNER OF SAID LOT 1; THENCE
NORTH 80 DEGREES 10 MINUTES 51 SECONDS WEST, ALONG A SOUTH LINE OF SAID LOT 1, A
DISTANCE OF 292.22 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS.
CONTAINING: 440,452 SQUARE FEET OR 10.112 ACRES, MORE OR LESS
EXHIBIT B
Depiction of Public Sanitary Sewer Location
[attached]
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LISLE, IL 60532
P: 630.598.0007
WWW.CAGECIVIL.COMSHEET NUMBERPROJ NO:ENG :DATE : REVISIONSTHIS DESIGN AND THESE DRAWINGS ARE THE PROPERTY OFCAGE ENGINEERING, INC. NO PART OF THIS WORK MAY BEREPRODUCED WITHOUT PRIOR WRITTEN PERMISSION FROMCAGE ENGINEERING, INC.SHEET TITLE WINGSPAN DEVELOPMENT GROUP
ELK GROVE WOODS
PLAZA
E. HIGGINS ROAD & ARLINGTON HEIGHTS ROAD
ELK GROVE VILLAGE, IL220303CW/LES/JDL05/14/24OF73PROPOSED SANITARY SEWERPROPOSED SANITARY MANHOLEPROPOSED SANITARY CLEANOUTPROPOSED WATER LINEPROPOSED WATER VALVE BOXPROPOSED STORM PIPEPROPOSED STORM STRUCTUREPROPOSED STORM CLEANOUTEXISTING SANITARY SEWER LINEEXISTING WATER LINEEXISTING STORM PIPEEXISTING FIRE HYDRANTEXISTING WATER VALVEEXISTING SANITARY MANHOLEWWSWDSUTILITY LEGENDSTORMWATER SUMMARY: REQUIRED PROVIDEDDETENTION SUMMARY:100-YR STORAGE VOLUME - TOTAL 4.00 AC-FT 4.00 AC-FTVOLUME CONTROL SUMMARY:TOTAL STORAGE VOLUME 0.67 AC-FT 0.67 AC-FTPROPOSED PUBLIC SANITARY SEWEREXHIBIT B - Depiction of Public Sanitary Sewer Location