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RESOLUTION FOR SETTLEMENT AGREEMENT BETWEEN COUNTY OF DUPAGE, WILSHIRE TOWER SPE, LLC AND VILLAGE OF BLOOMINGDALE
resolution
WHEREAS, the County of DuPage (County) previously undertook engineering and construction of improvements along CH 11/Army Trail Road, from Regency Drive to Swift Road, (Project); and
WHEREAS, as part of the Project, it was necessary to provide stormwater detention and compensatory storage; and
WHEREAS, in 2004 the County filed an eminent domain case, 2004 ED 4, against Wilshire Tower SPE, LLC (Wilshire Tower) wherein the parties to that case entered into an Agreement Concerning Land for a Permanent Easement, document R2005-078970 recorded April 18, 2005, defining the terms related to the non-exclusive permanent easement Wilshire Tower granted to the County for purposes of constructing and operating an online stormwater and compensatory floodplain storage system, and the terms upon which Wilshire Tower would continue to maintain the area of the permanent easement (“Permanent Easement Area”) upon completion of the project; and
WHEREAS, maintenance of the Permanent Easement Area was turned over to Wilshire Tower on August 14, 2013; and
WHEREAS, subsequent to construction of the online stormwater and compensatory floodplain storage facility, the controlled release and overland flow weir was impacted by overland flow stormwaters; and
WHEREAS, in 2022, the Village of Bloomingdale sent a letter to Wilshire Tower noting the on-line storage system was not functioning correctly and requested Wilshire Tower take actions to correct the problems; and
WHEREAS, after receipt of the Village letter, Wilshire Tower engaged both the County and the Village to discuss the Village’s noted drainage concerns to determine responsibility for corrective actions to restore the stormwater function of the on-line storage system (the Village, Wilshire Tower and County are sometimes referred to as “Parties”); and
WHEREAS, discussions between the Parties concluded that the overflow weir and restrictor at the north end of the property were in need of improvement; and
WHEREAS, Wilshire Tower made a demand to the County for attorney’s fees and consulting fees related to the investigation of the Village’s noted drainage concerns; and
WHEREAS, the County, Village and Wilshire Tower have denied any and all liability whatsoever; however, notwithstanding their denials, and in order to avoid the expense and risk of litigation, the Parties have agreed to settle and resolve any and all potential claims related to the maintenance of the Permanent Easement Area and/or the design, modeling or construction of anything built on the Permanent Easement Area, with all Parties paying their own attorney’s fees. Additionally, going forward, all Parties will pay the cost of their own attorney’s fees for any matter related to this Agreement or related to the Permanent Easement Area; and
WHEREAS, it is in the best interest of the County to design, repair, improve, and/or modify the overflow weir and restrictor and to assume maintenance responsibility of the Permanent Easement Area and this Settlement Agreement reflects said responsibilities.
NOW, THEREFORE, BE IT RESOLVED by the County Board of DuPage County, that it is in the best interest of the County for the County to design, repair, improve, and/or modify the overflow weir and restrictor and to assume maintenance responsibility of the Permanent Easement Area, and this Settlement Agreement reflects said responsibilities; and
BE IT FURTHER RESOLVED that the DuPage County Chair is hereby authorized and directed to sign on behalf of the County, and the DuPage County Clerk is hereby authorized to attest thereto, the attached Settlement Agreement; and
BE IT FURTHER RESOLVED that two (2) duplicate originals of this Resolution and Settlement Agreement be sent to the Village of Bloomingdale and to Wilshire Tower through the Division of Transportation.
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Enacted and approved this 24th day of October, 2023 at Wheaton, Illinois.
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DEBORAH A. CONROY, CHAIR
DU PAGE COUNTY BOARD
Attest: ___________________________________
JEAN KACZMAREK, COUNTY CLERK