HomeMy WebLinkAbout08-271 a
Resolution No. 08-271
RESOLUTION
AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH
NORTHERN ILLINOIS GAS COMPANY FOR OPEN SPACE, PARK PURPOSES AND
TRAIL CROSSINGS AT THE PROVIDENCE SUBDIVISION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
Olufemi Folarin, City Manager, be and is hereby authorized and directed to execute a license
agreement on behalf of the City of Elgin with Northern Illinois Gas Company for open space, park
purposes and trail crossings at the Providence Subdivision, copies of which are attached hereto and
made a part hereof by reference.
5/ Ed Schack
Ed Schock, Mayor
Presented: November 19, 2008
Adopted: November 19, 2008
Omnibus Vote: Yeas: 5 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
Sec 17 T41N ROBE 3`b PM
Elgin Township Kane County, IL
PIN: 06-17-100-024
Aurora-Elgin Parcel 47
Transmission RNV
Central File #:
LICENSE AGREEMENT
FOR OPEN SPACE, PARK PURPOSES
AND A TRAIL CROSSING
PROVIDENCE SUBDIVISION SEGMENT
For good and valuable considerations, more fully defined in Paragraph 1 hereof, the receipt
whereof is hereby acknowledged, NORTHERN ILLINOIS GAS COMPANY, an Illinois
corporation doing business as NICOR GAS COMPANY (hereinafter referred to as"Licensor")
hereby licenses to the CITY OF ELGIN, an Illinois municipal corporation whose address is 150
Dexter Court, Elgin, Illinois 60120 and whose telephone number is 847-931-6100 (hereinafter
referred to as "Licensee")the non-exclusive use of a portion of Licensor's Aurora-Elgin
Transmission right-of-way and property that is generally described as extending in a general
southerly direction across a part of the West Half of Section 17, Township 41 North, Range 08
East of the Third Principal Meridian, Elgin Township, Kane County, Illinois, from the south line of
Route 20, approximately 2,895 lineal feet, as measured along the west line of Licensor's
aforesaid right-of-way and property to the line dividing Providence Subdivision from
Williamsburg Green Subdivision, and more particularly identified by hatch marks and printed
label on the drawing labeled 'EXHIBIT A"that is attached hereto and made apart hereof.
License Parcel 1, License Parcel 2, License Parcel 3 and License Parcel 4 as depicted on said
EXHIBIT A are hereinafter sometimes individually or collectively referred to as the"Licensed
Premises" and are to be used for the following described purposes and no other:
License Parcel 1 —an open-space setting, with the right to plant and maintain grass and a
limited number of short, shallow rooted bushes and shrubs at approved locations, but excluding
trees and recreational equipment, but including a bike/walking/jogging trail across, but not
along, Licensor's property near Route 20;
License Parcel 2—an open-space setting intended for use for park purposes and community
use, with the right to plant and maintain grass and a limited number of short, shallow rooted
bushes and shrubs at approved locations, but excluding trees and recreational equipment;
License Parcel 3—an open-space setting, with the right to plant and maintain grass and a
limited number of short, shallow rooted bushes and shrubs at approved locations, but excluding
trees and recreational equipment; and
License Parcel 4—an open-space setting, with the right to plant and maintain grass and a
limited number of short, shallow rooted bushes and shrubs at approved locations, but excluding
trees and recreational equipment.
LIT1 OIZIGIRAL
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1. This License shall commence on the date that this License (hereinafter referred to as
"Agreement") is signed by Uoenour, and shall continue until terminated pursuant to the terms of
this Agreement or by operation of law. In consideration for the rights granted herein, Licensee
agrees that it will: 1) keep the vegetation situated on the Licensed Premises, whether that
vegetation occurs naturally or is installed by Licensee, trimmed and mowed; 2) remove all dead
and diseased vegetation from the Licensed Premises; 3) remove trash, garden and lawn waste
and debris from the Licensed Premises; 4) not plant or approve or encourage or allow the
planting of any species of plant that is considered or classified as threatened or endangered on
the Licensed Premises; 5) actively police and remove from the Licensed Premises any items or
devices installed or placed on the Licensed Premises that have not specifically been approved
by Licensor, inciuding, but not limited to, gandeno, trees, fencem, oheds, swimming pools,
wading pools and recreational and exercise equipment; 6) maintain the Licensed Premises and
(prior to the removal thereof) all such improvements in good order and repair and in a clean and
sightly condition during the License Term; and, 7)throughout the course of the term of the
Agreement actively notify and advise owners and occupants of properties situated adjacent to
the Licensed Premises and their invitees through mailings and/or postings on-site arid in public
places on and along the Licensed Premises that the Licensed Premises is a privately owned
natural gas transmission pipeline corridor and, as such, is not to be used for any purpose other
than those permitted uses identified in this Agreement, such postings and notifications will also
identify what uses of the property are not permitted.
Licensee further agrees that any plantings or landscaping material installed by Licensee on the
Licensed Premises will only be done so after Licensee receives the written approval of Licensor.
Any and all such plaritingsand and landscaping will be installed and maintained at no cost or
expense to Licensor.
The recreational trail and all plantings, including grass, buohea, shrubs installed on the Licensed
Premises are hereinafter sometimes individually and collectively referred toas"Facilities".
2. All Facilities installed or constructed by Licensee pursuant tothis Agreement shall be in
compliance with all of the following conditions:
a. Prior to installation of any Faci\ibes. Licensee shall (i) submit detailed plans of the
Facilities to Licensor for Licensors approval, which shall not be unreasonably withheld or
delayed, and (ii) obtain all permits and licenses required to conform to applicable laws, rules
and regulations of all authorities having jurisdiction. After approval of such plans by Licenaur, no
changes shall be made thereto without the prior written approval of Licensor, which shall not be
unreasonably withheld or delayed.
b. Licensee shall notify Licensor's Central Transmission Department, 8horaVvood, Illinois,
at least seve (72) hours prior to performing any construction work or digging on the
Licensed Premises bvphoning 815-725-94B1. extension 228.
c. A Nicor Gas inspector must be "on-site" during the installation, construction or erection
of said Facilities. Such representative shall have full authority to stop the work of the Licensee if
it reasonably appears to endanger any facilities or underground utility equipment of Licensor.
d. Without notice and out of the presence ofLioenoor's repnaoentotive. Licensee shall have
the right to maintain the Facilities such as mow grass, trim shruba, repair pavement, plow onovv,
remove refuse and the like.
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e. There shall be no blasting on the Licensed Premises.
f. Natural drainage of the Licensed Premises shall not be impaired and surface water run-
off shall be controlled by Licensee as required by Licensor and local authorities.
g. In all cases, use of the Licensed Premises by snowmobiles or other motorized sport or
recreational vehicles is specifically prohibited
h. The subject Facilities shall be installed above Licensor's transmission pipeline with a
minimum vertical clearance of two feet; no Facilities shall be installed below Licensor's
transmission pipeline.
i. The Licensor hereby advises Licensee that there may be unknown and/or otherwise
unidentified foreign facilities crossing the Licensed Premises above and below ground and at
grade level; the foreign facilities include, but are not limited to, drain tiles, sewers and water
mains and electric, television and communication cables, not all of which are marked and not all
of which are in the public record. It is, therefore, important that BEFORE Licensee installs any
approved Facilities. Licensee shall call J.U.L.I.E. at 1-800-892-0123 or at 811 to mark the
location of any such foreign facilities. Licensee hereby accepts the responsibility for the repair of
any damage to any drain tiles damaged or destroyed in the course of Licensee's installation,
construction or erection of the Facilities.
i. So long as this Agreement is in effect, iicenses and easements granted by Licensor
across the Licensed Premises subsequent to the effective date of this Agreement,will stipulate
that so long as this License Agreement is in effect, any such subsequent Licensee or Grantee
will be responsible to Licensee for the full cost of the restoration and repair of any damage to
the Facilities that are the subject to this Agreement, when such damage to said Facilities is
directly attributable to said subsequent Licensee or Grantee. Licensor will not have any
responsibility or obligation to enforce this clause for Licensee, nor will Licensor have any
responsibility or obligation to pursue the collection of any damages owed Licensee due to any
violation of this clause.
j. Licensee shall make no improvements nor install, construct or erect any structures other
than the Facilities upon the Licensed Premises.
3. Licensee shall at all times, and under all circumstances, indemnify, protect and save
harmless, Licensor, its successors and assigns, from and against any and all damages, losses,
claims, demands, actions and causes of action whatsoever (including any reasonable costs,
expenses and attorneys'fees which may be incurred in connection therewith) whether or not the
claim, demand or action asserted be meritorious, and which results from or is alleged to result
from, or which arises out of or in connection with, or is alleged to arise out of or in connection
with,the breach of Licensee of any covenant in this Agreement, or the non-compliance by
Licensee of any applicable law (including, without limitation, Environmental Laws) at the
premises or the installation, construction, reconstruction, operation, maintenance, alteration,
repair, replacement, use, removal or existence of said Facility by Licensee or any other users of
the Facilities upon the Licensed Premises, or the existence of the non-exclusive license granted
Licensee hereunder, provided, however, that in the event any such claim, damage, loss,
demand, action or cause of action is asserted against Licensor, Licensor shall furnish Licensee
with written notification thereof and Licensee shall conduct the defense thereof before any court,
board, commission or other governmental body exercising jurisdiction therein with counsel
acceptable to Licensor and at Licensee's expense. No settlement or compromise of any such
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claim, damage, loss, demand, action or cause of action shall be made unless agreed to by
Licensor. Licensor, its successors and aosigno, shall not be liable to Licensee, or Licensee's
successors and assigns, for any damages or ijuries to any persons or to said Facility or any
other property of Licensee situated or located in, on, about or upon the property subjected to
this License Agreement, except to the extent that ijuheoordarnageaareoausedbythavvU|fu\
or negligent act of Licensor, its successors or assigns.
Licensee hereby covenants that the use and operation of the Licensed Premises by Licensee
will at all times comply with any and all applicable |avvs, including, without iirnitahon.
Environmental Laws, and that Licensee shall not cause or permit any Hazardous Material to be
introduced to or handled on the Licensed Premises. As used herein, the term "Environmental
Laws" shall mean and refer to all applicable laws, ordinances, requirements and regulations
(including consent decrees and administrative orders) relating to public health and safety and
protection of the environment and the term "Hazardous Material" shall mean and refer to any
hazardous substance or any pollutant or contaminant defined as such in (or for purposes of)the
Comprehensive Environmental Response, Compensation, and Liability Act, any so-called
"Superfund" or"Superlien" law, the Toxic Substance Control Act, or any other Federal, state or
local statute, law, ondinance, code, rule, rmQu|ation, order or decree nagu|oding, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect, or any other hazardous, toxic or
dangerous waste, substance or material.
The foregoing indemnification, defense and hold harmless obligations shall survive any
termination of this License Agreement provided that the occurrence preceded the termination of
this License Agreement and provided that Licensee has removed all of the Facilities from the
Licensed Premises. The acts of the respective employees, representatives, agents or
contractors of Licensor or Licensee, as the case may be, shall be deemed to constitute the acts
of Licensor and Licensee respectively for the purposes of this Paragraph 3.
4. Licensee shall procure, maintain and continue in force during the entire License Term in
companies and amounts reasonably satisfactory to Licensor, comprehensive general liability
and property damage insurance, including contractual liability on a blanket broad form basis.
Licensor shall be named as an additional insured in all such policies. Until and unless Licensor
directs otherwise, such insurance shall be in the minimum amounts set forth in the following
paragraph.
Licensee agrees before entry upon or commencement of any work on the Licensed Premises
that Licensee shall procure or require its contractor(or contractors) to procure workman's
compensation insurance, employers' liability insurance (with statutory limits), comprehensive
general liability insurance (including contractual liability on a blanket broad form basis) and
property damage insurance in form reasonably acceptable to Licensor which will protect and
save harmless Licensor as stated herein. Limits of such comprehensive general liability and
property damage insurance shall be $3,000,000.00 for each occurrence with respect to bodily
injury or death and property damage. GuohinounanoeshaUbexvithaoornpanyoroornponiea
with a Best's rating of 6+ X| or better and shall remain in full force and effect during the period of
construction and until completion of all work on the Licensed Premises, and thereafter with
respect to occurrences and losses which are caused or occur within the period aforementioned.
Certificates of said policy or policies of insurance shall be delivered to Licensor in care of the
Nicor Gas, Real Estate Department, 1844 Ferry Road, Naperville, Illinois, 60563.
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5. Licensee hereby agrees, within 60 days of request therefor, to reimburse Licensor for any
and all local, state or federal taxes that may be assessed against Licensor or the Licensed
Premises by reason of improvements made to or placed upon the Licensed Premises by
Licensee.
6. Licensee hereby agrees it will not knowingly suffer or permit any mechanic's liens or other
lien to attach to the Licensed Premises by reason of any improvements or alterations to the
Licensed Premises or work done thereon by or upon the order of Licensee and will save
Licensor harmless from any such lien or claim therefor and from any and all costs or expenses
(including without Urnitation, attorney's fees) incurred in connection with any such lien or claim.
7. Licensor shall have the right, upon 120 days written notice to L(oanoee, without obligation or
liability to Lioenoor, to remove or require Licensee to narnove, all at Licensee's sole expense,
any improvements (including but not limited to paving or landscaping) installed by Licensee as
Licensor may in its sole judgment deem necessary in constncting, installing, operating,
[naintaining, napmihnQ, replacing or patrolling its facilities. In the event Licensee's improvements
must be relocated, Licensor shall cooperate with Licensee to determine if an alternate site
across Licensors property is available for the Facilities that are the subject of this License
Agreement.
B. Licensee hereby agrees to take possession of the Premises "as is" on the Commencement
Date and Licensee hereby acknowledges that Licensor has made no pnorniseo, representations
orwarranties concerning the Licensed Premises or this Agreement, except as the same may be
specifically made by Licensor in this Agreement.
9. Licensee agrees to keep and maintain the Licensed Premises in a c|ean, neat and sightly
condition and to Licensors satisfaction and, without |innitatioO, shall cut and keep down all
weeds and other unsightly or noxious growth on the Licensed Premises.
10. If Licensee shall violate or breach any of the terms, conditions or provisions of this
Aon*emmrt, or if Ucensee uses the Licensed Premises in violation of any applicable law, the
Licensor shall provide the Licensee with written notification specifically stating the violation or
violations and allow the Licensee fifteen (15) working days from the receipt of said notice to cure
such violation or breach in a manner acceptable to the Licensor thus keeping this Agreement in
effect. If the violation or breach is not cured within the specified grace period, the Licensor may
terminatethis Agreement at their sole discretion.At the expiration of, or earlier termination of
this License AoneemeDt,whether pursuant to this paragraph or otherwise, Licensee covenants
to return the Licensed Premises to Licensor in as good a condition as the Licensed Premises
are on the Commencement Date, reasonable use and the effects of time excepted. Without
|imnitation, all improvements made by Licensee pursuant to this License shall be removed and
the Licensed Premises shall be restored as aforesaid. Licensee shall maintain the Licensed
Premises and (prior to the removal thereof) all such improvements in good order and repair and
in a clean and sightly condition during the License Term.
11. This License is non-exclusive and unless terminated by cause as defined in this
Agraernert, shall be in effect for a term of one year from the date hereof, and shall automatically
renew each year thereafter; In no way is this License to be construed to be an easement for
public utilities or a public thoroughfare.
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12. This License shall not in any manner, or to any extent, affect the title of the Licensor to the
Licensed Premises, or limit or restrict the rightofUcensor, dosuoceasoromndeasi ns, to use or
dispose of said Licensed Premises as Licensor in its sole discretion may desire, and
particularly, but not in limitation of the foregoing, Ucenaor, its successors or assigns, at all
times, shall have free and unrestricted access to the Licensed Premises and all parts thereof for
any purpose whatsoever, including, without limitation, the establishment of utility facilities on,
under or above the surface of the ground, by Licensor or any other utility, company or agency
having Licensor's approval for same, and shall in no way be responsible to Licensee for any
damages incurred thereby, unless caused by the willful misconduct or gross negligent acts of
Licensor.
13. All notices to Licensor shall be sent by registered or certified mail addressed to Licensor at:
Nicor Gas, Real Estate Department, 1544 Ferry Road, Naperville, Illinois 60563; and to
Licensee at: City of Elgin c/o Parks and Recreation Department,150 Dexter Court, Elgin, Illinois
6012D; or at such other place as Licensor or Licensee may from time to time designate in
writing.
14. This Agreement shall not be assigned and NO COPY HEREOF SHALL BE RECORDED
OR FILED IN ANY PUBLIC OFFICE, and any such assignment, filing and/or recording shall
automatically terminate this Agreement, unless such assignment, filing and/or recording is
approved in writing by Licenser.
15. Two originals of this Agreement will be executed by the Licensor and the Licensee. Each
party will keep one of the two fully executed originals for its own use and records.
NORTH LL[NO|S GAS COMPANY J
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This Agreement is hereby accepted by the CITY OF ELGIN, and the CITY OF ELGIN by
accepting same agrees to observe and perform all the terms and conditions therein stated.
CITY OF E
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October 2, 2008 •
TO: Mayor and Members of the City Council
- -
FROM: Olufemi Folarin, City Manager
John Loete, Public Works Director
SUBJECT: License Agreement with Nicor Gas and Right of Way Maintenance Agreement
with Providence Home Owners Association.
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider entering into a License Agreement with Nicor Gas and a Right of Way
Maintenance Agreement with the Master Operating Association of Providence.
RECOMMENDATION
It is recommended that the City Council approve the License Agreement with Nicor Gas and the
Maintenance Agreement with the Master Operating Association of Providence to complete
construction of a bike path across the Nicor Gas easement and maintain the easement.
BACKGROUND
Town and Country Homes is the developer of the Providence subdivision. During the planning
phase of the Providence community, the City requested that Town and Country Homes include
bike paths for the residents. The bike paths would be part of the Mid County bike path system as
well as provide access to the schools and parks located either adjacent to or in the development.
As part of the overall arrangement for the bike path system, the Providence Home Owners
Association (HOA) will provide the maintenance of the bike paths. Part of the bike path is to be
constructed across the Nicor Easement that runs on a north and south alignment through the
development and the construction of that piece has been on hold pending these agreements.
Nicor Gas will not sign an agreement for the crossings directly with an HOA; it must be with the
City of Elgin. Town and Country Homes is requesting that the City enter into an agreement with
Nicor Gas to allow for the construction of the final 40 feet of bike path along Highway 20.
(Attachment A)
Town and Country Homes is also requesting that the City enter into a Right of Way Maintenance
agreement with the Providence Home Owners Association that holds the HOA responsible for
maintenance and repair of the bike path and other properties that are located on the Nicor Gas
easement. (Attachment B) Town and Country Homes will be responsible for the completion of
License Agreement with Nicor Gas and Right Of Way Maintenance Agreement with Providence
Home Owners Association
October 2, 2008
Page 2
the bike path. The maintenance of the bike path as well as the landscape maintenance adjacent to
the path will be the responsibility of the Master Operating Association of Providence.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None
FINANCIAL IMPACT
There is no direct cost to the City for entering into the agreement.
LEGAL IMPACT
None
ALTERNATIVES
1. The City Council may choose to approve the agreements with Nicor Gas and the
Providence Home Owners Association.
2. The City Council may choose not to approve the agreements with Nicor Gas and the
Providence Home Owners Association.
Respectfully submitted for Council consideration.
JTB
Attachments