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Resolution 2009-38 STATE OF ILLINOIS ) ss. COUNTY OF KENDALL ) Resolution No. 2009- 3$ RESOLUTION APPROVING SETTLEMENT AGREEMENT BETWEEN THE UNITED CITY OF YORKVILLE AND DTD INVESTMENTS, LLC AND APEX DEVELOPERS, LLC WHEREAS, DTD Investments, LLC and Apex Developers, LLC (hereinafter collectively the "Owners /Developers) requested the rezoning of certain real property annexed to the United City of Yorkville, Kendall County, Illinois (the "00), in 2006; and, WHEREAS, after a review of said request from the Owners /Developers the City Council, at its regular meeting, did not approve said request for rezoning; and, WHEREAS, Owners /Developers filed suit in the Circuit Court of Kendall County, under Case 2009 MR 80 on June 11, 2009, seeking a Declaratory Judgment to reverse the action of the City Council; and, WHEREAS, the City and the Owners /Developers, after serious consideration, have deemed it to be in their respective best interests to enter into a Settlement of said Declaratory Judgment Action filed by Owners/Developers in the Circuit Court of Kendall County, as Case Number 2009 MR 80 to and confirm the obligations of each of them with respect to this matter. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: I Section 1. That the Settlement Agreement Between the United City of Yorkville and DTD Investments, LLC and Apex Developers, LLC is hereby approved. Section 2. That the Mayor and Clerk are hereby authorized to execute and direct the City Administrator to proceed to implement the provisions thereof including the presentation of an ordinance rezoning the subject real estate to this City Council in accordance with the terms of said Agreement. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois, this 02� day of J (tot , A.D. 2009. ROBYN SUTCLIFF / DIANE TEELING GARY GOLINSKI V ARDEN JOSEPH PLOCHER Irl WALTER WERDERICH n MARTY MUNNS ROSE ANN SPEARS n GEORGE GILSON, JR. n Mayor Attest: i STATE OF ILLINOIS ) COUNTY OF KENDALL ) SETTLEMENT AGREEMENT BETWEEN THE UNITED CITY OF YORKVILLE AND DTD INVESTMENTS, LLC AND APEX DEVELOPERS, LLC NOW COMES the UNITED CITY OF YORKVILLE, hereinafter referenced as "CITY" and DTD INVESTMENTS, LLC AND APEX DEVELOPERS, LLC as OWNERS and DEVELOPERS, who in consideration of the following recitals, covenants, and conditions agree to settle all matters in dispute between the parties: WITNESSETH: WHEREAS, OWNERS /DEVELOPERS filed a Petition seeking a rezoning of certain real property described in the attached Exhibit "A" from B -3 Service Business District to PUD under the United City of Yorkville Comprehensive Zoning Ordinance; and WHEREAS a Public Hearing was held thereon at the Plan Commission of the United City of Yorkville and was unanimously recommended for approval; and WHEREAS, said Petition to Re -Zone was reviewed by the Economic Development Committee of the United City of Yorkville City Council and positively recommended to the City Council for approval; and WHEREAS, upon a vote being taken for approval of said rezoning a negative finding was made by the City Council of the United City of Yorkville; and 1 WHEREAS, OWNERS /DEVELOPERS filed suit in the Circuit Court of Kendall County, under Case 2009 MR 80 on June 11, 2009 seeking a Declaratory Judgment to reverse the action of the City Council of the United City of Yorkville; and WHEREAS, the CITY through its City Council has had the opportunity to seek and consult with legal counsel as to the remedies sought in said lawsuit, the potential financial exposure to the CITY, and has discussed the relative economic gain to the CITY upon approval of said zoning; and WHEREAS, OWNERS /DEVELOPERS have considered the risks of litigation, the i cost to be incurred therein, and the potential difficulty in implementing their project through Court action; and WHEREAS, each party has deemed it to be in their best interest to enter into a Settlement of said Declaratory Judgment Action filed by OWNERS /DEVELOPERS in the Circuit Court of Kendall County, as Case Number 2009 MR 80 to assure the rights of each party are protected in regard to said Zoning Application; and WHEREAS, The County of Kendall and OWNERS /DEVELOPERS have entered into a written Municipal Right -of -Way Agreement whereby: 1) The COUNTY OF KENDALL as GRANTOR has agreed to grant a Public Utility and Drainage Easement along the south side of Fountainview Drive Right of Way and dedicate right -of -way to the UNITED CITY OF YORKVILLE for roadway purposes over the real property pursuant to the Final Plat of Subdivision; and 2) The OWNERS /DEVELOPERS at its expense shall extend sanitary /sewer service to the southerly boundary of the real property commonly known as "FOUNTAINVIEW" and pay the cost of one hookup fee to the Yorkville Bristol 2 Sanitary District and the cost of the Sanitary Tap -on Fee to the UNITED CITY OF YORKVILLE on behalf of COUNTY OF KENDALL, at the Southern property line of OWNER/DEVELOPER/GRANTEE just east of the east corner of GRANTOR'S existing one story metal garage. OWNERS /DEVELOPERS shall further provide a stub connection to said sanitary sewer for the benefit of the COUNTY. 3) The OWNERS /DEVELOPERS shall extend and connect a one and one - half inch (1.5 ") copper water service along a line ten feet (10') east of Route 47 Right of Way, and then east to a point thirty feet (30') east of the northwest corner of the Kendall County Highway Department Office Building, all at OWNERS /DEVELOPERS expense. 4) Upon demolition of the COUNTY OF KENDALL'S 1 -story metal garage and restoration of the site by the OWNERS /DEVELOPERS , the UNITED CITY OF YORKVILLE agrees that the COUNTY OF KENDALL shall be entitled to at least one access for ingress and egress onto the newly constructed roadway to be constructed "in alignment with Fountainview's north -south access drive." 5) The OWNERS /DEVELOPERS shall pay for the cost of said roadway improvements required by the UNITED CITY OF YORKVILLE, and hereby warrants and agrees to keep the real property used for said roadway easement free and clear of any and all construction lien claims. 3 NOW THEREFORE, the parties hereto agree to settle all matters between themselves upon the following terms and conditions: 1. RECITIALS: The parties hereto agree that the recitals above contained herein are an essential part of this Agreement, are the consideration for the settlement of the same, and are hereby incorporated herein as covenants and conditions undertaken by each party as part of the settlement agreement. 2. FINAL PLAT: The Final Plat of Subdivision is hereby approved as attached hereto. The OWNERS/DEVELOPERS agree that in the event the Illinois Department of Transportation ( "IDOT ") requires an additional 7 feet dedicated at the intersection of Fountainview and Routes 47, they will dedicate said area to IDOT. The OWNER/DEVELOPER further acknowledge that the Route 47 Widening Plans have not been finalized and that the OWNERS /DEVELOPERS may be required to dedicate additional Right of Way between Route 47 and the existing Stormwater Detention Facility. 3. RECAPTURE: Fees due to the City pursuant to that certain Sanitary Sewer and Water Recapture Agreement in the amount of Three Thousand Six Hundred Eighty Dollars and 00 /100 ($3,680.00) shall be paid at the time of recording the Final Plat of Subdivision in recognition of water and sewer service to the County building. The OWNERS /DEVELOPERS shall also pay at the time of recordation of the Final Plat of Subdivision a recapture fee in the amount of $15,176.32.for service of water and sewer to the OWNERS /DEVELOPERS property comprising 4.124 acres. 4 4. ZONING TO BE GRANTED BY RESOLUTION OF CITY COUNCIL: The City shall pass a Resolution or Ordinance, as it deems appropriate granting zoning of the subject parcel of the real property described in the attached Exhibit "A" as PUD (Planned Unit Development) under the City Comprehensive Zoning Ordinance, rezoning and amending its Zoning Map as to said parcel from B -3 Service Business District to PUD District. 5. REIMBURSEMENT OF CITY COSTS: That in consideration of the approval and execution of this Settlement Agreement, the OWNERS /DEVELOPERS shall reimburse the CITY for costs and fees incurred in litigation defending Lawsuit Case 2009 MR 80 in Kendall County. 6. DISMISSAL OF LAWSUIT: (a) That upon the approval of a vote by the Yorkville City Council of said Resolution or Ordinance granting PUD Zoning to OWNERS/DEVELOPERS herein for the real property described in Exhibit "A ", OWNERS /DEVELOPERS shall cause their Attorney to enter an ORDER in the Circuit Court of Kendall County to dismiss Case Number 2009 MR 80 with prejudice. (b) OWNERS /DEVELOPERS shall reimburse the City the cost of litigation and attorney's fees herein within 7 days of the entry of said Order of Dismissal. 7. DOCUMENT EXECUTION: The parties agree to execute any orders, resolutions, or any other documents necessary to effectuate the Settlement agreed to herein. 5 IN WITNESS WHEREOF the parties have executed this Settlement Agreement this cy , of (,l �/ , 2009. I UNITED CITY OF YORKVILLE: BY: _UUeA I 0 Mayor Atte Clerk Dated: 6 I I BY OWNER/DEVELOPERS BY: DTD INVESTMENTS, LLC BY: APEX DEVELOPERS, LLC Attest: Attest: Dated: n110, Dated: 7 I EXHIBIT "A" LEGAL DESCRIPTION THAT PART OF THE SOUTHWEST QUARTER OF SECTION 4 AND PART OF THE SOUTHEAST QUARTER OF SECTION 5, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 5; THENCE SOUTH 89 DEGREES, 40 MINUTES, 05 SECONDS WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER 655.52 FEET TO THE TANGENT CENTER LINE OF ILLINOIS STATE ROUTE NO. 47 EXTENDED FROM THE SOUTH; THENCE SOUTH 1 DEGREE, 44 MINUTES, 07 SECONDS EAST ALONG SAID TANGENT CENTER LINE AND SAID TANGENT CENTER LINE EXTENDED, 3511.16 FEET; THENCE NORTH 89 DEGREES, 29 MINUTES, 40 SECONDS EAST 548.60 FEET FOR THE POINT OF BEGINNING; THENCE SOUTH 89 DEGREES, 29 MINUTES, 40 SECONDS WEST ALONG THE LAST DESCRIBED COURSE 548.60 FEET TO THE CENTER LINE OF ILLINOIS STATE ROUTE NO. 47 AFORESAID; THENCE SOUTH 1 DEGREE, 44 MINUTES, 07 SECONDS EAST ALONG SAID CENTER LINE 489.07 FEET; THENCE SOUTH 86 DEGREES, 11 MINUTES, 02 SECONDS EAST 575.53 FEET TO A LINE DRAWN SOUTH 4 DEGREES, 21 MINUTES, 07 SECONDS EAST FROM THE POINT OF BEGINNING; THENCE NORTH 4 DEGREES 21 MINUTES, 07 SECONDS WEST ALONG SAID LINE 533.53 FEET TO THE POINT OF BEGINNING (EXCEPT THE SOUTHERLY140 FEET, AS MEASURED ALONG THE EAST LINE THEREOF AND ALSO EXCEPT THAT PART CONVEYED TO THE PEOPLE OF THE STATE OF ILLINOIS, DEPARTMENT OF TRANSPORTATION BY WARRANTY DEED RECORDED MAY 8, 1990 AS DOCUMENT 90 -2884) IN THE TOWNSHIP OF KENDALL, KENDALL COUNTY, ILLINOIS.