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HomeMy WebLinkAbout07-185 Resolution No. 07- 185 RESOLUTION AUTHORIZING EXECUTION OF A RIGHT OF WAY ENCROACHMENT LICENSE AGREEMENT WITH SHADOW HILL HOMEOWNERS ASSOCIATION, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Olufemi Folarin,City Manager,and Diane Robertson, City Clerk,be and are hereby authorized and directed to execute a right of way encroachment license agreement on behalf of the City of Elgin for construction, maintenance and repair of a private irrigation system within the South Street public right of way, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: July 25, 2007 Adopted: July 25, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk A RIGHT OF WAY ENCROACHMENT LICENSE AGREEMENT This Right-of-Way Encroachment License Agreement ("Agreement") is made and entered into at Elgin, Illinois this 6 day of June , 2007 by and between the City of Elgin, an Illinois municipal corporation ("City") and Shadow Hill Homeowners Association, Inc., an Illinois not-for-profit corporation (the "Owner"). RECITALS WHEREAS, Owner is the record titleholder of real property located within the Shadow Hill Subdivision, in the City of Elgin, County of Kane and legally described as set forth within Exhibit A attached hereto (the "Owner's Property"); and WHEREAS, City is the owner of Nesler Road, a public right-of-way in Elgin, Illinois (the "City's right-of-way"); and WHEREAS, Owner desires to use a portion of the City's right-of-way for installation of utilites in connection with irrigation of a portion of the Owner's Property and/or landscaping located within the City's right-of-way. The portion of the City's right-of-way to be used by Owner(the "Encroachment Area") is depicted on Exhibit B attached hereto and incorporated into this Agreement by reference; and WHEREAS, the City has agreed to grant to Owner a temporary license to use the Encroachment Area described above, all in accordance with, and subject to the terms, conditions and limitations of, this Agreement. NOW THEREFORE, for and in consideration of the mutual covenants, and obligations contained herein, and other good and valuable consideration received by each party, the sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this Agreement in this entirety. 2. Grant of License. The City hereby grants to the Owner a temporary license allowing the Owner the right to construct, maintain and repair a private irrigation system anywhere within the Encroachment Area. All costs related to the construction, maintenance, repair and removal of the private irrigation system shall be paid for by the Association. This license herein granted shall be subject to those existing utility easements located within the City's Right-of-Way as depicted on Exhibit C attached hereto and incorporated herein. 3. Term. This Agreement and the license granted to the Owner hereunder shall commence as of the date of this Agreement and shall continue until terminated in accordance with the terms of this Agreement. W:\WORK\33728\Right of Way License Agreement-v2.doc t ' 4. Consideration. The consideration to be paid by the Owner to the City for the privilege granted by this Agreement shall be TEN and NO/100 DOLLARS ($10.00),the receipt of which is hereby acknowledged by the City. 5. No interest in Land. Owner understands, acknowledges and agrees that this Agreement does not create an interest or estate in Owner's favor in the City's Right-of-Way. The City retains legal possession of the full boundaries of its Right-of-Way and this Agreement merely grants to the Owner the personal privilege to use the encroachment area described above throughout the term of this Agreement. Notwithstanding the expenditure of money, time and labor by the Owner on or within the Encroachment Area, this Agreement shall in no event be construed to crease an assignment coupled with an interest in favor of Owner. Owner shall expend any time, money or labor on or in the Encroachment Area at Owner's own risk and peril. 6. Limited Scope of License. The license granted to the Owner is limited in scope to the following use or uses: Installation of utilities in connection with irrigation of a portion of Owner's Property and in connection with the irrigation or landscaping within the City's Right-of-Way and additional uses ancillary thereto. Owner shall not have the right to expand the Encroachment Area or alter or change Owner's use of the Encroachment Area without City's written consent, which said consent shall not be unreasonably withheld, conditioned or delayed. 7. Non-Transferability of License. The license granted to the Owner by this Agreement is a mere personal privilege granted by the City to the Owner and is neither transferable nor assignable by the Owner without the written consent of the City, which consent shall not be unreasonably withheld, conditioned or delayed. 8. Termination. This Agreement and license therein granted to Owner may be terminated by either party for any reason or no reason upon giving thirty(30) days written notice. a. Recording of Notice of Termination. Upon termination of this Agreement, the City may cause to be recorded with the Kane County Recorder of Deeds, Kane County, Illinois, a written Notice of Termination. b. No Compensation to Owner. In the event of termination of this Agreement, Owner shall not be entitled to receive a refund or any portion of the consideration paid for this Agreement. 1:\LAND\PROPERTY\Shadow Hill\ROW Encroachment License Agreement\Right of Way License Agreement-v2.doc 9. Permanent Removal of Encroachments upon Termination. At such time as this Agreement and the license herein granted to Owner is terminated, the Owner shall, at the option of the City, remove, at Owner's expense, any and all encroachments owned or maintained by Owner in the City's Right-of-Way. 10. Insurance. Owner shall maintain at all times during the term of this Agreement, at Owner's sole cost, a policy of comprehensive general liability coverage on an occurrence basis from an insurance company licensed with the State of Illinois or other insurer approved by Owner with at least$1,000,000.00 single limit coverage on all risks. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated or materially changed until at least thirty(30) days written notice has been given to the City. Owner shall name City as an additional insured and shall furnish City with duplicate policies or certificates evidencing insurance in force as required herein. 11. Maintenance. During the term of this Agreement, the Owner shall, at Owner's expense, maintain the Encroachment Area in good condition. 12. Indemnification. The Owner agrees to indemnify, defend and save the City harmless from: a. Damage to Owner's Property by Public. Any claim, loss or damage (including reasonable attorney's fees) to the Owner's encroaching improvements arising out of, or in connection with, use by the public of the City's right-of-way. b. Damage to Owner's Property by City. Any claim, loss or damage (including reasonable attorney's fees) to the Owner's encroaching improvements arising out of, or in connection with, the use by the City of the City's right-of-way for any lawful purpose, including,but not limited to, the installation, construction, maintenance, or repair of improvements within the City's right-of-way. c. Damage to Others. Any loss, liability, claim or damage to any person or property(including reasonable attorney's fees) which occurs on the encroachment area and which arises in whole out of the use of the encroachment area by Owner pursuant to this Agreement. d. Mechanic's Lien. Any loss, liability, claim or suit arising from the foreclosure, or attempted foreclosure, of a mechanic's or materialmen's lien for goods delivered to Owner or work performed by or for Owner upon or at the Encroachment Area.. Such indemnification shall include City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. I:\LAND\PROPERTY\Shadow Hill\ROW Encroachment License Agreement\Right of Way License Agreement-v2.doc 13. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt requested, addressed as follows: a. To the City: City Engineer City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 b. To the Owner: Shadow Hill Homeowners Association c/o Foster Premier 750 W. Lake Cook Road, Suite 190 Buffalo Grove, Illinois 60089 With copy to: Peter C. Bozos 1250 Larkin Avenue, Suite 100 Elgin, Illinois 60123 14. Joint and collective Work Product. This Agreement is and shall be deemed and construed as the joint and collective work product of the City and Owner, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the 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 therein. 15. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this license agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this license agreement shall remain in full force and effect. 16. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this license agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 17. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 18. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. I:\LAND\PROPERTY\Shadow HiII\ROW Encroachment License Agreement\Right of Way License Agreement-v2.doc • 19. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 20. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 21. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto, which consent shall not be unreasonably withheld conditioned or delayed by the City. 22. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 23. Modification. This Agreement may be modified or amended only by a duly authorized written instrument executed by the parties hereto. 24. Authority of City. The City hereby warrants that the City has obtained all necessary consents so as to allow the execution of this Agreement as may be required under all applicable provisions of the City of Elgin Municipal Code including but not limited to Section 13.04.130 of the Elgin Municipal Code, 1976 as amended, if applicable. IN WITNESS WHERE, each of the parties hereto has caused this Agreement to be executed as of the date first above written. CITY OF ELGIN An Illinois municipal corporation By: Olu : i`Fol. City Manager ATTEST: Diane Robertson, ity Clerk SHADOW HILL HOMEOWNERS ASSOCIATION An Illinois not-for-profit corpora ion By: V Its: Pf FS Edi f:\LAND\PROPERTY\Shadow Hill\ROW Encroachment License Agreement\Right of Way License Agreement-v2.doc EXHIBIT A OWNER'S PROPERTY I:\LAND\PROPERTY\Shadow Hill\ROW Encroachment License Agreement\Right of Way License Agreement-v2.doc REccm_DESCRIPTJQN t of 3 CHAT PART OF SECTION 19 AND 30, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, AND THAT PART TO THE EAST HALF OF SECTION 24, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE TI IIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTH EAST QUARTER OF SAID SECTION 24, THENCE NORTH ALONG THE QUARTER SECTION LINE 4.75 CHAINS; THENCE NORTH 41 DEGREES EAST 99.92 CHAINS TO THE SOUTHWEST CORNER OF THE PARCEL OF LAND CONVEYED TO FRED YURS BY DEED DATED MARCH 11, 1873 AND RECORDED JANUARY 11, 1875 IN BOOK 158, PAGE 13 AS DOCUMENT 7279; THENCE SOUTH 48 1/2 DEGREES EAST 12.08 CHAINS; THENCE SOUTH 35 DEGREES WEST 51.30 CHAINS TO THE CENTER OF THE PUBLIC HIGHWAY; THENCE SOUTH 73 DEGREES EAST ALONG THE CENTER OF SAID ROAD 1.39 CHAINS TO THE NORTHWEST CORNER OF LANDS CONVEYED TO CHARLES F. YURS BY DEED DATED MAY 28, 1904 AND RECORDED JUNE 6, 1904 IN BOOK 440, PAGE 59 AS DOCUMENT 69407; THENCE SOUTH 2 DEGREES WEST ALONG THE WEST LINE OF SAID LANDS 31.15 CHAINS TO THE SOUTH LINE OF SECTION 24 AFORESAID EXTENDED EAST; THENCE WEST ALONG SAID EXTENDED SOUTH LINE 4.43 CHAINS TO THE SOUTHEAST CORNER OF SAID SECTION 24; THENCE WEST ALONG THE SOUTH LINE OF SECTION 24, 40.14 CHAINS TO THE POINT OF BEGINNING, IN THE TOWNSHIPS OF ELGIN AND PLATO IN KANE COUNTY, ILLINOIS P?E cR1FIKA 1 '► 3 THAT PART OF SECTIONS 19 AND 30, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN AND PART OF SEC TION 24, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 24; THENCE NORTH 01 DEGREES 00 MINUTES 28 SECONDS WEST (BEARINGS ASSUMED FOR DESCRIPTION PURPOSES), 313.50 FEET ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER; THENCE NORTH 40 DEGREES 31 MINUTES 24 SECONDS EAST, 2844.84 FEET TO A POINT IN WATER ROAD; THENCE NORTH 40 DEGREES 32 MINUTES 50 SECONDS EAST, 3859.48 FEET TO THE SOUTH LINE OF PARCEL 1 OF GLENN CHRIST AND KATHRYN CHRIST TRACT AS PER PLAT OF SURVEY PREPARED BY C.B.B. ENGINEERING, DATED JANUARY 30, 2003; THENCE SOUTH 48 DEGREES 39 MINUTES 04 SECONDS EAST, 798.19 FEET ALONG THE SOUTH LINE OF SAID PARCEL 1 TO THE WEST LINE OF PARCEL 2 AS SET FORTH ON SAID PLAT OF SURVEY; THENCE SOUTH 35 DEGREES 28 MINUTES 07 SECONDS WEST, 3369.30 FEET ALONG SAID WESTERLY LINE TO A POINT IN WATER ROAD AT THE SOUTHWEST CORNER OF SAID PARCEL 2; THENCE SOUTH 73 DEGREES 37 MINUTES 53 SECONDS EAST, 63.15 FEET ALONG THE SOUTH LINE OF SAID PARCEL 2 TO A POINT IN WATER ROAD AT THE NORTHWEST CORNER OF PARCEL 3 AS SET FORTH ON SAID PLAT OF SURVEY; THENCE SOUTH 03 DEGREES 16 MINUTES 06 SECONDS WEST, 2077.51 FEET ALONG THE WEST LINE OF SAID PARCEL 3 TO THE NORTH LINE OF CATATOGA II SUBDIVISION, RECORDED JANUARY 7, 1974 AS DOCUMENT 1286530; THENCE SOUTH 89 DEGREES 38 MINUTES 16 SECONDS WEST, 263.07 FEET ALONG SAID NORTH LINE TO THE SOUTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 24, BEING THE NORTHERLY MOST COMMON CORNER OF SAID CATATOGA II SUBDIVISION AND CATATOGA III SUBDIVISION, RECORDED MARCH 13, 1980 AS DOCUMENT 1538177; THENCE SOUTH 89 DEGREES 03 MINUTES 54 SECONDS WEST, 2675:47 FEET ALONG THE SOUTH LINE OF SAID SOUTHEAST QUARTER, BEING COINCIDENT WITH THE NORTH LINE OF SAID CATATOGA III SUBDIVISION TO THE POINT OF BEGINNING, IN KANE COUNTY ILLINOIS. n pie rIoN 3 4 3 rHAT PART OF THE NORTHWEST QUARTER OF SECTION 19, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE riiIRD PRINCIPAL MERIDIAN AND PART OT THE EAST HALF OF SECTION 24, TOWNSHIP 41 NORTH, RANGE 1 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF NESLER ROAD WITH THE CENTER LINE OF WATER ROAD; THENCE NORTH 43 DEGREES 17 MINUTES 18 SECONDS EAST ALONG THE CENTER LINE OF NESLER ROAD, 1399.19 FEET TO A POINT OF CURVE; THENCE NORTHEASTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 8121.32 FEET, AN ARC DISTANCE OF 262.37 FEET TO A POINT OF TANGENCY; THENCE NORTH 41 DEGREES 26 MINUTES 14 SECONDS EAST ALONG SAID CENTER LINE BEING TANGENT TO THE LAST DESCRIBED CURVE AT THE LAST DESCRIBED POINT, 527.96 FEET; THENCE SOUTH 48 DEGREES 31 MINUTES 57 SECONDS EAST 902.10 FEET; THENCE SOUTH 41 DEGREES 2S MINUTES 03 SECONDS WEST 1780.55 FEET TO THE CENTER LINE OF WATER ROAD; THENCE NORTH 71 DEGREES 46 MINUTES 40 SECONDS WEST ALONG SAID CENTER LINE 1034.35 TO THE POINT OF BEGINNING, IN THE TOWNSHIPS OF PLATO AND ELGIN, IN KANE COUNTY, ILLINOIS. EXHIBIT B SHADOW HILL UNITS I,2,AND 3 N - 4 i / .-•"jil 0 111 11111115111.1 1 / -00-difill wpirj \ 4, , ti 0 6 0 *-w.11iwr1g efi 1El =CI 1 I1111l1HMMIIlI IC1 i4w ,. 111U 1 1 / , , 1111111101 , 1411111 fr. ir......1.1 .• .10 -- i ' m tillUddrielit %' ip'401111 ' lic #.>Ji.' 4, 4401111 z-P' ,44 Aki, irr2411 ) % Atir--: "Encroachment Area' • ' /4*447411111.11111- 1 ir 1;1 //A0A 4 4/4041 i I LI LI II 1 I 1 1 144111 #, Ar4rVi474 r, 401 . 4 •. 44 . / 4.1,4i V4 t"#A IP Ilzf MIN ai , t1z4sv// i Is k4,/#44 0 44.4 ot.07/44, i _. _, ,_114. //,_••Aiik",_•# vyz„ . _ /117, K .. yity / .... ALR.Lk.. WAS112119 + 5ir,rit.:'tuggr .---. 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" , \ •,\ i i !- . „.,.: \. . \---- \ , i 1i il , 11 ti .,. , . I i •/ t , . ,. . ,,,, . / Li „ ,,, \ , , , i/ :I - •f I - .. 5 .. ..„ • I !I /f , ,. r i / ''/ \'', , t\ / ., /11 / '/ ffi\ \ :. /, 1,li \'t • ' 1 1 I ,! \ 1 • 1 t \ 11 1 . • , . 4 I ft, 1 111 1 1/ • • /i, i,` ii .. ..._ ... . . . .�� of foci `",ofLUM Memorandum City of Elgin f'A n9 °%EDEN DATE: June 11, 2007 TO: Jennifer Quinton, Deputy City Clerk .� FROM: Omar Santos, Engineer Iw SUBJECT: South Street—Irrigation Encroachment Agreement COPY: Ron Rudd, P.E., Engineer II (e-mail) File Enclosed, for your file, find one signed copy of RIGHT OF WAY ENCROACHMENT LICENSE AGREEMENT between the City of Elgin and the Shadow Hill Homeowners Association to construct, maintain and repair a private irrigation system within the South Street public right of way. Contact me, x5973, should you have any question on the matter.