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HomeMy WebLinkAbout08-272 - - • Resolution No. 08-272 RESOLUTION AUTHORIZING EXECUTION OF A RIGHT OF WAY MAINTENANCE AGREEMENT WITH THE MASTER OPERATING ASSOCIATION OF PROVIDENCE SUBDIVISION 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 an agreement on behalf of the City of Elgin with the Master Operating Association of Providence Subdivision for right of way maintenance of the bike path and other properties located on the Nicor Gas easement in the Providence Subdivision, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock 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 RIGHT-OF-WAY MAINTENANCE AGREEMENT THIS AGREEMENT is made and entered in to this /6?-tt day of 7LCI,fti?---6-t-'1_ 2008 by and between the CITY OF ELGIN, an Illinois municipal corporation (the "City") and The Master Operating Association of Providence, an Illinois not-for-profit corporation (the "Association"). WITNESSETH: WHEREAS, Association manages the common areas of the Providence residential subdivision development, said development being located within the City of Elgin, Illinois; and WHEREAS, the Northern Illinois Gas Company, an Illinois corporation doing business as "Nicor Gas" owns a right-of-way within the Providence residential subdivision development ("Providence"), said right-of-way measuring approximately sixty-six (66) feet in width and extending through Providence for a distance of approximately 2895 lineal feet and being legally described in Article III, paragraph 3.2 of this agreement (the "Nicor Right-of-Way"); and WHEREAS, the City has entered into a license agreement with Nicor to use and maintain the Nicor Right-of-Way in a park-like, open space setting including paths and/or trails at location across, but not along the Nicor Right-of-Way, for use by the general public for bicycling and pedestrian recreational purposes, excluding snowmobiles or other motorized sport or recreational vehicles; and WHEREAS, the Association desires to maintain the Nicor Right-of-Way in a park-like, open- space setting including paths and/or trails at location across, but not along the Nicor Right-of-Way, for the use and benefit of the residents of Providence and the general public for bicycling and pedestrian recreational purposes, excluding snow-mobiles or other motorized sport or recreational vehicles, and otherwise consistent with the City's license agreement with Nicor; and WHEREAS, the City desires to permit the Association to maintain the Nicor Right-of-Way given the Association's vested interest in maintaining property situated within Providence; and WHEREAS, the Association, in order to be afforded the ability to maintain the Nicor Right-of- Way, has agreed to the terms, conditions and requirements set forth in this Agreement. NOW THEREFORE, in consideration of the foregoing premises and the promises contained therein, the parties hereto agree as follows: ARTICLE I— ASSOCATION RIGHTS AND RESPONSIBILITIES Association hereby agrees to the following terms, conditions and requirements: 1.1 Association shall cause to be recorded with the Kane County Recorder, an Association declaration covering all of the platted lots within Providence and containing in addition to other matters normally found therein, the following provisions regarding the maintenance of the Nicor Right-of- Way: 1 (a) The Association declaration shall acknowledge that the Nicor Right-of-Way, although licensed by the City from Northern Illinois Gas Company (doing business as "Nicor Gas"), is the sole responsibility of the Association, and said Association shall be maintained to be used as the vehicle by which to fulfill the obligations of this Agreement. (b) The Association declaration shall provide that one of the duties and obligations of the Association shall be to properly maintain the Nicor Right-of-Way. (c) The Association declaration shall require that the Association levy assessments against the owners of lots or units within Providence sufficient to pay for the maintenance of the Nicor Right-of-Way and for any costs incurred by reason of subsections (d) through (h) of this section. The Association will have an enforceable lien on any owner of a lot or unit in Providence in the event that any said owner fails to pay an assessment. All purchases of lots or units within Providence shall he given an outline summary of the Association's maintenance obligations per this agreement. (d) The Association declaration shall contain a provision releasing the City from any and all past, present or future liability for any damage that may be caused at any time to any person or to any real or personal property resulting from or related to, directly or indirectly, the City allowing the Association to maintain the Nicor Right-of-Way, or otherwise acting or failing to act with respect to the maintenance of the Nicor Right-of-Way. The city will be further released from any and all past, present or future obligations to expend any public funds or to take any other action to maintain or improve the Nicor Right-of-Way. (e) The Association declaration shall contain a provision requiring the Association, or upon its failure, the owners of all lots and units within Providence, to indemnify and hold harmless the City, the mayor, the members of the city council and the officials, officers, employees and agents of the city from and against any and all losses, damages, costs and expenses, including reasonable attorneys fees, that may be incurred or suffered by any of them as a result of or in connection with any claims that may be asserted against any of them in connection with the maintenance of the Nicor Right-of-Way. The Association, or upon its failure, the owners of all lots and units within Providence, will further be required to promptly reimburse the City for any public funds the City may expend with respect to maintenance of the Nicor Right-of-Way in the event the Association fails to maintain the same, although the City is under absolutely no obligation to so maintain. (f) Association and the owners of all lots and units within Providence understand and agree, if the City or the City's designee does damage to the Nicor Right-of-Way, repair or replacement of the same shall not be the responsibility of the City or the City's designee. (g) Association and the owners of all lots and units within Providence understand and agree, should the City determine that the Nicor Right-of-Way is endangering the public health, safety or welfare or have become unsightly or a nuisance, or interfere in nay way with the City's use of the right-of-way, that upon request of the City, the Association shall cause the offending conditions in the Nicor Right-of-Way to be corrected in accordance with the city's direction. Should the Association fail to comply with the City's request to correct the offending conditions, the City may correct the same and the Association, or upon its failure owners of all lots and units within Providence, shall be obligated to reimburse the City for its costs in making such correction. The Association declaration shall contain a provision stating the same. 2 (h) The Association declaration shall contain a provision requiring the Association, or upon its failure, the owners of all lots and units within Providence, to maintain adequate liability insurance to cover all reasonably insurable risks associated with the maintenance of the Nicor Right-of-Way and the covenants of the agreement. (i) The Association declaration shall name the City as third-party beneficiaries of all provisions therein relating to the Nicor Right-of-Way and the covenants of this agreement. The Association declaration shall contain a provision requiring the written consent of the City to the termination of the Association declaration in its entirety or to any amendment, modification or termination of any provision thereto regarding the Nicor Right-of-Way. If the Association requests such consent, it shall be made in writing to the city manager. The City shall have 60 days, upon receipt of the same, to rule on the request. 1.2 The Association, its successors and assigns, hereby grant permission to the City, its authorized agents and employees, to enter upon the Nicor Right-of-Way and to inspect the maintenance of said right-of-way whenever the City deems necessary. The purpose of any such inspection is to verify reported deficiencies and/or to respond to complaints regarding the condition of the Nicor Right-of- Way. ARTICLE II— CITY RIGHTS AND RESPONSIBILITIES 2.1 City agrees, upon a showing of compliance with this agreement in accordance with Article III, Paragraph 3.4 of this agreement, to authorize the Association to maintain the Nicor Right-of-Way. 2.2 The City shall provide the Association copies of any inspections of the Nicor Right-of-Way conducted pursuant to the terms of this agreement and shall also provide the Association with written directive regarding any required corrective measures to the Nicor Right-of-Way when necessary. 2.3 In the event the Association, its successors and assigns, fails to maintain the Nicor Right-of-Way in good condition acceptable to the City, the City may enter upon the Nicor Right-of-Way and take whatever steps necessary to correct deficiencies identified in the City's inspection report and to charge the costs of such repairs to the Association, its successors and assigns. It is expressly understood and agreed that the City is under no obligation to routinely maintain or repair the Nicor Right-of-Way, and in no event shall this agreement be construed as imposing any such obligation on the City. 2.4 In the event the City, pursuant to this agreement, performs work of any nature, or expends any funds in performance of said work for labor, equipment use, supplies, material and the like, the Association, its successors and assigns, shall reimburse the City upon demand, within thirty (30) days of receipt thereof for all actual costs incurred by the City pursuant to this agreement. ARTICLE III - MISCELLANIOUS PROVISIONS 3.1 The foregoing recitals to this agreement are substantive and are hereby incorporated into this agreement in their entirety. 3 3.2 The Nicor Right-of-Way is legally described as follows: That portion of the Northern Illinois Gas Company's Aurora-Elgin Transmission right-of-way and property that extends 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 (hereinafter sometimes referred to as "POINT A"), a total distance of approximately 2895 lineal feet, as measured along the west line of the Northern Illinois Gas Company's aforesaid right-of-way and property to the line dividing Providence Subdivision from Williamsburg Green Subdivision (hereinafter sometimes referred to as "POINT B"). That portion of the Northern Illinois Gas Company's Aurora-Elgin Transmission right-of-way and property extending from POINT A to POINT B shall be referred to in this agreement as the "Nicor Right-of-Way". 3.3 The license agreement between the City and Northern Illinois Gas Company doing business as "Nicor Gas") for the Nicor Right-of-Way shall be incorporated into this agreement and is attached as "Exhibit A". 3.4 Prior to the issuance of a final occupancy permit within Providence, the City shall be provided a recorded copy of the required declaration showing compliance with this agreement. 3.5 This agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto; provided, however, that no assignment shall be made without the prior written consent of the City. 3.6 The parties to this agreement do not intend, nor shall this agreement be construed, as an assignment of the City's interest in the license agreement between the City and Northern Illinois Gas Company (doing business as "Nicor Gas") for the Nicor Right-of-Way. 3.7 This agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes of 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. 3.8 This agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 3.9 The terms of this agreement shall be severable. In the event of 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. 3.10 This agreement and its attachments constitutes the entire agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. 3.11 To the fullest extent permitted by law, Association agrees to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorneys fees, damages or other relief, including but not 4 limited to workers compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Association in connection herewith, including negligence or omissions of employees or agents of the Association arising out of the performance of this Agreement. In the event of any action against the City, its officials, officers, employees, agents, boards or commissions, covered by the foregoing duty to indemnify, defend and hold harmless such actions shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration and/or tei[inflation of this agreement. 3.12 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. 3.13 This agreement shall be in effect for a term of one year form the date hereof and shall automatically renew each year thereafter. 5 .-, . IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above. CITY OF ELGIN, ILLINOIS ci ,......- Olu elm • al-in, Ci , Manager ATTEST: ______ . -- ,,,,,„, City lerk MASTER OPERATING ASSOCIATION OF PROVIDENCE 7f--- President CORPORATE ACKNOWLEDGMENT STATE OF ILLINOIS ss. COUNTY OF KANE --ill On this /) day of OC,h)beir , 2008 before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Way .- 11(bti.elAskir, , President of the Master Operating Association of Providence, a not-foir-profit corporation d y organized, incorporated and existing under and by virtue of the laws of Illinois who is personally known to me to be the same person who executed as such officer the foregoing instrument on behalf of said corporation, and such person duly acknowledged the execution of the same to be the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. gill No a 'us/ OFFICIAL SEAL REBECCA J GARDNER NOTARY PUBLIC-STATE OF ILLINOIS 6 ' MY COMMISSION EXPIRES03127/10 _ _ 1,111,At,„ qr,e4- October 2, 2008 Jj !V:* \„ 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 — -- K.,OF Memorandum City of Elgin : i 201? [L (A* Date: November 25, 2008 To: John Loete, Public Works Director From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 08-272, regarding Master Operating Association of Providence Subdivision Enclosed please find the above referenced agreements. Please distribute to the appropriate parties and if needed, retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you.