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HomeMy WebLinkAbout16-139 Resolution No. 16-139 RESOLUTION AUTHORIZING EXECUTION OF A RIGHT-OF-WAY LICENSE AGREEMENT WITH SHG OF ILLINOIS, LLC DOING BUSINESS AS BBK MOTORSPORTS (227 DuPage Street) 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 a Right-of-Way License Agreement on behalf of the City of Elgin with SHG of Illinois, LLC doing business as BBK Motorsports for utilization of two marked on-street parking spaces, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: December 7, 2016 Adopted: December 7, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk RIGHT-OF-WAY LICENSE AGREEMENT THIS AGREEMENT (herein after the "Agreement") is made and entered into this 7th day of December , 2016, by and between the City of Elgin, an Illinois municipal corporation, organized and existing under the laws of the State of Illinois (hereinafter the "City") and SHG of Illinois, LLC, an Illinois Limited Liability Company doing business as BBK Motorsports, (hereinafter the "Licensee"). WITNESETH WHEREAS, Licensee is the tenant in possession of a retail business establishment known as BBK Motorsports, located at 227 DuPage Street, Elgin, Illinois (hereinafter the "Licensee's Premises"); and WHEREAS,the Licensee's Premises is owned by Martin Adams LLC, an Illinois Limited Liability Company (hereinafter the "Owner"); and WHEREAS, both Licensee and Owner are owned by Brian Martin, who has executed this Agreement on behalf of Licensee; and WHEREAS, the City is the owner of a certain public right-of-way commonly known as DuPage Street (hereinafter the "City Right-Of-Way") and WHEREAS, a portion of the City Right-Of-Way immediately adjacent to Licensee's Premises at 227 DuPage Street, Elgin, Illinois, is improved with two marked on-street parking spaces as depicted on Attachment A, attached hereto and incorporated herein by this reference (hereinafter the "License Area"); and WHEREAS, Licensee desires to utilize the License Area to provide for the outside display of motorcycles, motorized scooters and other two-wheeled motorized vehicles that are offered for sale at the retail business establishment operating at Licensee's Premises (such motorized vehicles hereinafter collectively referred to as "Motorcycles"); and WHEREAS, both parties hereto have each determined it to be in the best interests of the residents of the City, and of Licensee, respectively, to facilitate the aforementioned placement of Motorcycles in the License Area; and WHEREAS, the City has therefore agreed to grant to Licensee a temporary and non- exclusive personal privilege to utilize the License Area for the placement of Motorcycles, all in accordance with and subject to the terms, conditions, and limitations of this Agreement. NOW, THEREFORE, 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 mutually acknowledged, the parties hereto hereby agree as follows: 1 1. Incorporation of Recitals. The foregoing recitals are hereby incorporated into this Agreement in their entirety. 2. Grant of License. The City hereby grants to Licensee a temporary and non-exclusive personal privilege and permission to enter upon the City Right-Of-Way for the sole purpose of parking the Motorcycles within the License Area described above (hereinafter the "License"), subject, however, to the terms, conditions and limitations of this Agreement. The License herein granted shall be subject to all existing utility easements, if any, located within the City Right-Of-Way, or any other easements, conditions, covenants or restrictions of record. 3. Term. This Agreement and the License granted to Licensee hereunder shall commence as of the date of this Agreement and shall terminate on December 31, 2020,unless terminated prior thereto in accordance with the terms of this Agreement. 4. Consideration. The consideration to be paid by Licensee to the City for the privilege granted by this Agreement shall be Ten Dollars ($10.00), the receipt of which is hereby acknowledged by the City. 5. No Interest in Land. Licensee understands, acknowledges and agrees that this Agreement does not create an interest or estate in Licensee's favor in the License Area or the City Right-Of-Way. The City retains legal possession of the full boundaries of its right-of-way and this Agreement merely grants to Licensee the personal privilege to use the License Area described above throughout the term of this Agreement. 6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the License Area, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of Licensee. Licensee shall expend any time, money or labor on or in the License Area at Licensee's own risk and peril. 7. Limited Scope of License. The License granted to Licensee is limited in scope to the following use or uses: The License granted to Licensee shall be limited to the parking of Motorcycles in the License Area as depicted on Exhibit A. Such Motorcycles may only be located within the License Area on the following days and between the following hours: Tuesdays 10:00AM - 7:00PM, Wednesdays 10:00AM - 7:00PM, Thursdays 10:00AM - 7:00PM, Fridays 10:00AM- 6:00PM, Saturdays 10:00AM- 4:00PM. Licensee shall remove the Motorcycles during all other times, and at such other times as may be required by the City, in its sole discretion. Licensee shall not have the right to expand the License Area or alter or change Licensee's use of the License Area without the City's prior written consent. 2 8. Non-Transferability of License. The License granted to Licensee by this Agreement is a mere personal privilege granted by the City to Licensee, and is neither transferable nor assignable by Licensee without the City's prior written consent. Any attempt to transfer or assign this License without the City's prior written consent shall automatically terminate this Agreement and the license privileges granted to Licensee hereunder. 9. Termination. This Agreement and the License herein granted to Licensee may be terminated by either party for any reason or no reason upon giving thirty (30) days written notice. In addition, this Agreement may be terminated by the City upon five (5) days written notice to Licensee of a breach of any term or condition of this Agreement. a. Recording of Notice of Termination. Upon termination of this Agreement the City may cause to be recorded with the County Recorder of Kane County, Illinois, a written Notice of Termination. b. No Compensation to Owner. In the event of termination of this Agreement, Licensee shall not be entitled to receive a refund of any portion of the consideration paid for this Agreement, nor shall Licensee be entitled to any compensation or reimbursement for any license fees, costs or expenses incurred or in any way arising from this Agreement or relating to the construction, installation, maintenance and/or removal of improvements from the License Area, nor any monetary damages of any kind whatsoever. 10. Permanent Removal of Encroachments Upon Termination. Other than the temporary parking of the Motorcycles, Licensee shall not park or store any other property in the License Area. Licensee shall not modify, alter, or make or install any permanent improvements or encroachments to or upon the License Area. At such time as this Agreement and the License herein granted to Licensee is terminated, Licensee shall, at the option of the City and at Licensee's sole cost and expense, remove the Motorcycles and any and all property, encroachments, or improvements owned or maintained by Licensee in the City Right-Of-Way and shall restore the License Area to its original condition. Any other provision of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and expense, the Motorcycles and any other property or encroachments from the License Area in the event that the City determines that such removal is necessary or convenient for the installation,repair or replacement of any utilities or other public improvements in the City Right-Of-Way, or in the event that the City determines that the Motorcycles or any other encroachments interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard. If the Licensee fails to exercise its duties under this paragraph, the City shall have the right to remove the Motorcycles,property,or other encroachments or improvements,the full and complete cost of which shall be borne by Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such removal upon thirty (30) days written demand for such reimbursement. 11. Insurance. Licensee shall maintain at all times during the term of this Agreement, at Licensee's sole cost, a policy or policies of comprehensive general liability coverage on an 3 occurrence basis from an insurance company licensed with the State of Illinois or other insurer approved by Licensee 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. Licensee shall name the City as co-insured and shall furnish the City with duplicate policies or certificates evidencing insurance in force as required herein prior to utilizing the Exterior Seating Area. Evidence of payment of premiums shall be delivered to the City at least thirty (30) days prior to the expiration dates of each existing insurance policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance; alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. 12. Construction and Maintenance. Licensee agrees that the License Area and the Motorcycles parked thereon shall be placed and maintained at all times in a safe, neat, sightly and good physical appearance and condition, and in accordance with all requirements of the Elgin Municipal Code, 1976, as amended. During the term of this Agreement, Licensee shall, at Licensee's sole cost and expense, maintain the License Area and the Motorcycles thereon in good condition and in compliance with this Agreement and any applicable requirements of law. The City shall be the sole judge of the quality of the maintenance and placement of the Motorcycles and the License Area and, upon written notice of the City stating in general terms how and in what manner maintenance of the License Area and/or relocation, removal, or replacement of the Motorcycles is required, Licensee shall be required to perform such maintenance and/or relocation at its sole cost and expense. If Licensee fails to do so, then the City shall have the right to perform such maintenance and/or relocation, the full and complete cost of which shall be borne by Licensee. Licensee covenants and agrees to reimburse the City its full cost and expense for any such maintenance and/or relocation upon thirty (30) days written demand from the City for reimbursement. 13. Compliance with Law. Except as otherwise provided in this Agreement with respect to the parking of the Motorcycles within the City Right-Of-Way, Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the License Area and the Licensee's use thereof Licensee agrees and warrants that it has procured or shall procure any licenses, bonds, permits or like permission required by law, if any, to conduct or engage in the use of the License Area described herein, that Licensee will procure all additional licenses, bonds, permits or like permission hereinafter required by law during the term of this Agreement,and that Licensee will keep the same in full force and effect during the term of this Agreement at its own cost and expense. Licensee shall perform under this Agreement in accordance with all applicable legal requirements. 14. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify, defend and save the City, its officers, agents, servants,employees,boards and commissions harmless from and against: 4 a. Damage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Motorcycles or any other property belonging to, rented by, or under the control of Licensee, its officers, servants, agents or employees, which may be stolen, destroyed, or in any way damaged, by any cause whatsoever. b. Damage to Others. Any claims, suits,judgments, costs, attorney's fees, loss, liability, damage or other relief, including but not limited to Workers' Compensation claims, to any person or property in any way resulting from or arising out of the existence of this Agreement and/or the existence, maintenance, use or location of the Motorcycles or any other property belonging to,rented by,or under the control of Licensee,its officers, servants, agents, or employees, within the City Right-Of-Way. In the event of any action against the City,its officers,agents, servants,employees,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. c. 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 Licensee or work performed by or for Licensee upon or at the License Area or Licensee's property. Such indemnification shall include the City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 15. Breach and Limitation on Damages. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to Licensee for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by Licensee against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of Licensee related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from Licensee reasonable interest and attorney's fees. 16. 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: To the City: To the Licensee: Aaron Cosentino Senior Management Analyst City of Elgin 150 Dexter Court Elgin, IL 60120-5555 5 With a copy to: With a copy to Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 17. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 18. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 19. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Licensee, 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 herein. 20. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this Agreement shall remain in full force and effect. 21. 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 for the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 22. 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. 23. 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. 6 24. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 25. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 26. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to Licensee. Any attempt to assign this License will automatically terminate the license privileges granted to Licensee hereunder. 27. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 28. Modification. This Agreement may be changed, modified or amended only by a duly- authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly-authorized and executed amendment hereof. 29. Any other provision of this Agreement to the contrary notwithstanding, it is expressly agreed and understood that in connection with the performance of this Agreement that the Licensee shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Licensee hereby certifies, represents and warrants to the City that all of Licensee's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. Licensee shall also, at its expense, secure all permits and licenses,pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work,and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of Licensee to determine Licensee's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Licensee shall make available to the City Licensee's relevant records at no cost to the City and shall pay any and all costs associated with any such audit. 30. SIGNATURE PAGE FOLLOWS 7 IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its duly authorized representative as of the day and year first above written. CITY OF ELGIN B : dZat Y David J. Kapt..- M. :r ATTEST: Kimberly Dewis, i Clerk SHG OF ILLINOIS, LLC, D/B/A BBK MOTORSPORTS • Attest: By: 1,1 vi /14g T1� 8 AttachmentA I I i' ,, # ''',.#14 ei‘f!, I .' '/J. fl page str ee r . I, Peparkin.,Spaces ,' r, i�/ f I i , e f t.. A ' i `- r �.,` j 227 pupage Street - \ ' * ' r44,...„,, parking Spec':