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Home My WebLink About09-156 'I i Resolution No. 09-156 RESOLUTION AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH 3 DIMENSION CONSTRUCTION MANAGEMENT, INC. (800 Dundee Avenue) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall,City Manager, and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute a License Agreement on behalf of the City of Elgin with 3 Dimension Construction Management,Inc.for installation of a canopy at 800 Dundee Avenue,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: July 8,2009 Adopted: July 8, 2009 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk f RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT This Right-of-Way Encroachment License Agreement (hereinafter the "Agreement") is made and entered into at Elgin, Illinois this 8th day of May 2009, by and between the City of Elgin, an Illinois municipal corporation (hereinafter the "the City") and Brian Harrington — 3 Dimension Construction Management, Inc,a(n)Illinois Corporation(hereinafter the"Licensee"). Recitals WHREAS, Licensee is the record titleholder and responsible for the maintenance of certain real property located within the City of Elgin, County of Kane, State of Illinois, legally described on Exhibit A, attached hereto and incorporated herein by this reference, said property being commonly known as 800 Dundee Avenue, Elgin, Illinois (hereinafter referred to as "Licensee's Property"); and, WHEREAS, the City is the owner of the public rights-of-way within or adjacent to the area identified as the Licensee's Property including, but not limited to, those portions of Dundee Avenue and Lincoln Avenue located within said area(hereinafter the "the City Right-Of-Way"); and, WHEREAS, Licensee desires to utilize a portion of the City Right-Of-Way for the installation of Canopy in front of the building in certain sections of said the City Right-Of-Way within or adjacent to the Licensee's Property. The portion of the City Right-Of-Way to be used by Licensee is depicted on Exhibit B, which is attached to and incorporated into this Agreement by this reference (hereinafter the`Encroachment Area"); and, WHEREAS, the City has agreed to grant to Licensee a temporary and non-exclusive personal privilege 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 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 and to use the Encroachment 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. � R t � 3. Term. This Agreement and the License granted to Licensee hereunder shall commence as of the date of this Agreement and shall continue until terminated 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 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 Encroachment 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 Encroachment 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 Encroachment 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: Overhead Canopy: "Installation and maintenance of decorative, Canopy, as depicted on Exhibit B, attached to and incorporated into this Agreement by reference, identified herein as the Encroachment Area. Licensee shall maintain the Canopy so as to prevent obscuring visibility between motorists, bicyclists and pedestrians at intersections and pedestrian crossing areas. Licensee's design and maintenance of the Canopy shall be subject to the sole approval of the City's Public Works Director. Licensee shall not have the right to expand the Encroachment Area or alter or change Licensee's use of the Encroachment Area without the City's prior written consent. 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. 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. 2 1 r ) 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 costs or expenses incurred in any way arising from this Agreement or relating to the construction, installation, maintenance and/or removal of improvements in the Encroachment Area, nor any monetary damages of any kind whatsoever. 10. Permanent Removal of Encroachments Upon Termination. At such time as this Agreement and the License herein granted to Licensee is terminated, Licensee shall, at the option of the City, remove, at Licensee's sole cost and expense, any and all encroachments or improvements owned or maintained by Licensee in the City Right-Of- Way. Any other provision of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and expense, any such encroachments 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 any such encroachments interfere with pedestrian or vehicular traffic, public utilities, or constitute a safety hazard. Any replacement or repair of such encroachments shall be at the sole cost and expense of the Licensee. If the Licensee fails to exercise its duties under this paragraph, the City shall have the right to remove the encroachments or improvements and restore the City Right-Of-Way, 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 and/or restoration. 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 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 Encroachment 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 improvements described herein shall be erected and maintained at all times in a safe, neat, sightly and good physical 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 Encroachment Area and any improvements thereon in good 3 condition and in compliance with any applicable requirements of law. The City shall be the sole judge of the quality of the construction and maintenance and, upon written notice of the City stating in general terms how and in what manner maintenance is required, Licensee shall be required to perform such maintenance. If Licensee fails to do so, then the City shall have the right to perform such maintenance, 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. 13. Compliance with Law. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Encroachment Area and the Licensee's use thereof. Licensee agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Encroachment Area described herein, that Licensee will procure all additional licenses, 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. 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: a. Damage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Licensee's encroaching improvements or any property belonging to or rented by 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 Licensee's encroaching improvements 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 Encroachment 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. 4 1 � 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 Owner: City Engineer Brian Harrington City of Elgin 3 Dimension Construction Management, Inc 150 Dexter Court 800 Dundee Avenue Elgin, IL 60120-5555 Elgin, Illinois 60120 With a copy to: With a copy to Corporation Counsel Brian Harrington City of Elgin 3 Dimension Construction Management, Inc 150 Dexter Court 800 Dundee Avenue Elgin, IL 60120-5555 Elgin,Illinois 60120 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 5 • 1 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 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. 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. 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 or writing herein or in a duly authorized and executed amendment hereof. 29. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the Elgin Municipal Code, 1976 as amended. SIGNATURE PAGE TO FOLLOW 6 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 By: �ta• Ci Manager ATTEST: City Clerk Brian Harrington—3 Dimension Construction Management,Inc. By: Brian Harrington—3 Dimension Construction Management,Inc. Its: President Attest: OFFICIAL SEAL AMBER DEERE NOTARY PUBLIC-STATE OF ILLINOIS MY COMMISSION EXPIRES JUN.18,2012 8 ORIGINAL RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT 800 DUNDEE AVENUE ELGIN, IL 60120 EXHIBIT A • ("-- '\ • - • • • • • • . • T.'s\\\\ o Ib; CENTER OF POST CHAIN LINK '.:, :'.�', •',•.:,'•'.',•'.'':.'' a.17•NCR TN Ac 1.07'EAST N.8945080.00•. :'•:'• •.r:.; .: .. .:.. S . - 4 7. • '• •• •. .t..-:..-.-.........• ' E-I,' LO cc?°' //ommEfoORY O • N • o :: :';. ::.-: le-Cti7' PLAT OF SURVEY EAST FACE CHAIN UKK � � � `��,',�r �- � - ON LAZE ae 0.20'NOtt :•• ;arw•_p�,c-„+-:C..i,it: -'-' '' LOT 20(EXCEPT THE WEST 52 FEET THEREOF) IN BLOCK 8 OF GRAND VIEW ik77=X :'�r'"!;.t..•:-:;'•:• ADDITION TO ELGIN, IN THE CITY OF ELG1N, KANE COUNTY, ILUNOIS, .:` �i�:r : .s -ice ,<- -.•; 1�r �<• t E'";3 =r. � ..V,� ESN ,.'i i Y .e '1•. 7.>:.'—tiVi,-;:i.,,,I.-.4..,4.„:„ : .6 .'i •. •r.zJ.;..y'',t'; "•� i r:s.,+'ry.'F .t.': '::`i fir.?? i.i•'�. COMM N •�e '..5°!:. :; y! ,, .y^-iy.. . l'.• 0 LY KNOWN AS: 800 DUNDEE AVENUE ' pp,'��.',,.1 ^>'"'-i5; ,r'i v;�':.sv, 3e'i?'�.„.,:.i i.r::,� .,..:, ,�• ., ., r I-1 1 `mH is CURB,!QUTTER •'. •• _ _ 5311.94 SQUARE FEET BITUMINOUS PAVEMENT.-'.. .: •'•, '•, '.'::.'.::•:'. ':'•':•. '•':'•' w•__L'•' ' '•. •••''•�''• ••:'' '•''•�•..�CCNTERL��'•1�.�N—AVENUE •�.•'-'•'-'••'••�•:•:•.��'�•''�••-•• •''�• • DUE TO HEAVY SNOW COVE NOT AU-ASPHALT, CONCRETE, PATIOS, AND DECKS SHOWN, FlELS WORK COMPLETER ON JANUARY 24, 2009 CLIENT REQUESTED THIS BOUNDARY SURVEY WITHOUT MONUMENTATION STATE OF LuNOIS) (NOT STAKED & FLAGGED OR OTHERWISE MONUMENTED) COUNTY OF COOK})C.C. PLAT CANNOT BE USED FOR AFFIDAVIT OF TITLE GRAPHIC SCALE PYRAMID LAND SURVE ORS, INC. AS ILLINOIS LICENSED 20 D 1a 20 40 80RYD PROFESSIONAL LAND DESCRI HEREBY STATE BED ABOVE AND THAT E P ATHA�/ PYRAMID LAND SURVEYORS) INC. HEREON DRAWN IS A TRUE REPRESENTATION OF SAME, GIVEN UNDER MY HAND AND SEAL THIS 2411I Land Su/veyois Illinois and Wisconsin OAY OF JANUARY 2009 108 GREY FOX COURT, STREAMWOOD ILLINOIS 60107 ( IN FEIsT) /• PHONE 630-497-1832 FAX 630-497-5340 \ 1 inoh = 20 0 THIS PROFESSIONAL SERVICE CONFORMS TO THE CURRENT IL.UNOIS MINIMUM STA ARDS F0$,A B DARY SURVEY. DRAWN BY: C.V.S. DESIGN FIRM: �164- 02898 DRAWING NO: 0110 SCALE 1"=2p' GENE SCOLA PLS �1035-003364 EXPIRES 11-30-10 BOOK NO 0901-06 FIELD WORK COMPLETED: JANUARY 241H, 2009 /// ORDERED BY: R. KOCUREKS e l RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT 800 DUNDEE AVENUE ELGIN, IL 60120 EXHIBIT B 0 0 o-3 SAC`'£ Al/ei U E ` -t.G rL_( t tL , CQ6l20 7 . Construction Management DFF1LE FLAN ` ,,A 23, 200at \ 1 dT--____ I . '- 1 1 1 ekske _,, e rT Plwtm oig, r aoam 1 STaMC(E I - li___i , 5-ren uo 14ITLgeb4 PSKIVe. Jorr)ce I. - LAa(E Ca4FEW,4T Qob 50 OFfIC( Bua p F( I MO 1 5 „�6 30 o�F�Lf oF��C& (--,... 601*‘‘ . ,r-i \\r. C\ .._ . Cad \k, >t,k .t1 ', 0fF1 tE ,u.1 OUP S s C u3 MAI Aieft •::, ( `` \ Nl�ra.v�i.l;.anal al.�.ign. a�,IK I.nq�nr�rl,2 f GiRn.. Cooley Brite Sunbrella Style 4677-0000 mrhum tlm c>pm.r.miurn,nnwm nl ,)11ign.o.u;°,Ic,.r°°"."°•'. White Vinyl Awning Fabric "Tuscan" 100%Acrylic Decorated with Vinyl Graphics Fire Retardant Awning Fabric 32'-2 " 5'-1 1/2" 3Dimension 4'-11 3/4" 4'-0 r 800 12'-0" 7'-5" • // :mil.• "��.� _ - 1.i East Elevation Qty. 1 Set of New Awning "Skins"for Existing Awning Structure Location: Digital Artwork Provided: YES ® NO • 800 Dundee Road Elgin,IL 1 of 3 Survey Completed: ®YES NO 101110r— Filename: L),u 10 09 • 3 Dimension 800 Dundee ELEV.cdr Drawn by: Measurements: ❑ESTIMATED ®ACCURATE •. w,tc".a, SC","M.,,.a.IL.o: .,,I ..,.,,,.,e,3 E Ors,,,�,�, Tv4 Scale:_, O" Revised: • All.IrawinR.anti ilc.iRna Aterlx prop -c jr Oren. Any I hiplliarinn.I li.rrilnninn or INiplav with liremirr wrine„nn"n„i Sunbrella Style 4677-0000 11 f]ign.n.vi.Jy Im�hiFlrnl. "Tuscan" 100%Acrylic Fire Retardant Awning Fabric 36'-6" 4'-0' 12'-0" 7' 5" -,I MSCH,P.. Northeast Elevation Qty. 1 Set of New Awning"Skins"for Existing Awning Structure Digital Artwork Provided: ❑ YES ® NO Location. 800 Dundee Rood Elgin,IL 2 of 3 ALA .. .4- Filename: Daw: Survey Completed: ®YES 1=I NO 1"• —, -_ 3 Dimension 800 Dundee ELEVcdr 04-1 0-09 Drawn by: Measurements: ID ESTIMATED ®ACCURATE 13s1 w ten.. n ccw.ow.,..,r P. ,,7s2.17053 �.M„ TvSRevised: 1/4'" =1•-0" MI n,:,.m.,g.....d dem,,.. AM'n,,F,r..m„,,.D,.t butinn or Div1.0 ()I Sic,.�....1.1i."i,� uK',t 16'-10" .■ Sunbrella Style 4677-0000 4'-0 " "Tuscan" 100%Acrylic Fire Retardant Awning Fabric 12'-0" 7'-5" Southeast Elevation Qty. 1 Set of New Awning"Skins"for Existing Awning Structure Digital Artwork Provided: ElYES ® NO Location: 800 Dundee Road Elgin,IL Page:3 of 3 �.. rt ±► _ Filename: Date: Completed: YES® NO 'j — �titrr - •»..: 3 Dimension 800 Dundee ELEV.cdr 04-10-09 r■ Scale: Revised: Measurements: El ESTIMATED ®ACCURATE 1301 WRIGHT BLVD. SCH.uMeu a,IL • 847-S]n-79E3 t ors1GN Drawn by: N S cale =1' 0" Fir June 18,2009 TO: Mayor and Members of the City Council man€ially Stable City Government FROM: Olufemi Folarin, City Manager Joe Evers, City Engineer SUBJECT: License Agreement with 3 Dimension Construction Management PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider the acceptance of a License Agreement with 3 Dimension Construction Management for installation of a canopy at 800 Dundee Avenue within the City right-of-way. RECOMMENDATION It is recommended that the City Council accept the License agreement with 3 Dimension Construction Management for a canopy installation within the City right-of-way and authorize the City Manager to execute the document on behalf of the City. BACKGROUND Brian Harrington of 3 Dimension Construction Management is the current record title holder of the property located at 800 Dundee Avenue, Elgin, Illinois. Mr. Harrington desires to improve the building façade by installing a canopy over the building's doorway/windows. The property does not have a building setback from the property line; therefore, the proposed canopy will utilize a portion of the City's right-of-way. A License Agreement, signed October 17, 1994, between the City and the previous property owner, Horizon Management of Elgin, for the referenced property was executed by the City Council for the same purpose. The Horizon Management License Agreement is not assignable, and therefore has automatically terminated since the property was transferred to the current owner. The City's Legal Department provided the license agreement format which has been reviewed and signed by Mr.Harrington. A copy of the license agreement is attached as Exhibit A. • License Agreement with 3 Dimension Construction June 18,2009 Page 2 COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None FINANCIAL IMPACT The fee for the License Agreement is $10. There is minimal staff time involved with monitoring the insurance requirements associated with the license agreement. LEGAL IMPACT None ALTERNATIVES 1. The City Council may choose to accept the License Agreement with 3 Dimension Construction Management as presented. 2. The City Council may choose to reject the License Agreement with 3 Dimension Construction Management. Respectfully submitted for Council consideration. /os Attachments . • EXHIBIT A License Agreement with 3 Dimension Construction Management 800 Dundee Avenue • RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT This Right-of-Way Encroachment License Agreement (hereinafter the "Agreement") is made and entered into at Elgin, Illinois this 8th day of May 2009, by and between the City of Elgin, an Illinois municipal corporation (hereinafter the "the City") and Brian Harrington — 3 Dimension Construction Management,Inc, a(n)Illinois Corporation(hereinafter the"Licensee"). Recitals WHREAS, Licensee is the record titleholder and responsible for the maintenance of certain real property located within the City of Elgin, County of Kane, State of Illinois, legally described on Exhibit A, attached hereto and incorporated herein by this reference, said property being commonly known as 800 Dundee Avenue, Elgin, Illinois (hereinafter referred to as "Licensee's Property"); and, WHEREAS, the City is the owner of the public rights-of-way within or adjacent to the area identified as the Licensee's Property including,but not limited to,those portions of Dundee Avenue and Lincoln Avenue located within said area (hereinafter the "the City Right-Of-Way"); and, WHEREAS, Licensee desires to utilize a portion of the City Right-Of-Way for the installation of Canopy in front of the building in certain sections of said the City Right-Of-Way within or adjacent to the Licensee's Property. The portion of the City Right-Of-Way to be used by Licensee is depicted on Exhibit B, which is attached to and incorporated into this Agreement by this reference (hereinafter the"Encroachment Area");and, WHEREAS, the City has agreed to grant to Licensee a temporary and non-exclusive personal privilege 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 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 and to use the Encroachment 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 continue until terminated 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 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 Encroachment Area described above throughout the term of this Agreement. b. No Vested Right. Notwithstanding any expenditure of money, time and/or Iabor by Licensee on or within the Encroachment 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 Encroachment 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: Overhead Canopy: "Installation and maintenance of decorative, Canopy, as depicted on Exhibit B, attached to and incorporated into this Agreement by reference, identified herein as the Encroachment Area. Licensee shall maintain the Canopy so as to prevent obscuring visibility between motorists,bicyclists and pedestrians at intersections and pedestrian crossing areas. Licensee's design and maintenance of the Canopy shall be subject to the sole approval of the City's Public Works Director. Licensee shall not have the right to expand the Encroachment Area or alter or change Licensee's use of the Encroachment Area without the City's prior written consent. 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. 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. 2 • 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 costs or expenses incurred in any way arising from this Agreement or relating to the construction, installation, maintenance and/or removal of improvements in the Encroachment Area,nor any monetary damages of any kind whatsoever. 10. Permanent Removal of Encroachments Upon Termination. At such time as this Agreement and the License herein granted to Licensee is terminated, Licensee shall, at the option of the City, remove, at Licensee's sole cost and expense, any and all encroachments or improvements owned or maintained by Licensee in the City Right-Of- Way. Any other provision of this Agreement to the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and expense, any such encroachments 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 any such encroachments interfere with pedestrian or vehicular traffic,public utilities, or constitute a safety hazard. Any replacement or repair of such encroachments shall be at the sole cost and expense of the Licensee. If the Licensee fails to exercise its duties under this paragraph, the City shall have the right to remove the encroachments or improvements and restore the City Right-Of-Way, 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 and/or restoration. 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 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 Encroachment 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 improvements described herein shall be erected and maintained at all times in a safe, neat, sightly and good physical 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 Encroachment Area and any improvements thereon in good 3 condition and in compliance with any applicable requirements of law. The City shall be the sole judge of the quality of the construction and maintenance and, upon written notice of the City stating in general terms how and in what manner maintenance is required, Licensee shall be required to perform such maintenance. If Licensee fails to do so,then the City shall have the right to perform such maintenance, 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. 13. Compliance with Law. Licensee shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Encroachment Area and the Licensee's use thereof. Licensee agrees and warrants that it has procured or shall procure any licenses, permits or like permission required by law, if any, to conduct or engage in the use of the Encroachment Area described herein, that Licensee will procure all additional licenses,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. 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: a. Damage to Licensee's Property. Any and all claims, loss or damage (including reasonable attorney's fees) to the Licensee's encroaching improvements or any property belonging to or rented by 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 Licensee's encroaching improvements 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 Encroachment 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. 4 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 Owner: City Engineer Brian Harrington City of Elgin 3 Dimension Construction Management,Inc 150 Dexter Court 800 Dundee Avenue Elgin,IL 60120-5555 Elgin,Illinois 60120 With a copy to: With a copy to Corporation Counsel Brian Harrington City of Elgin 3 Dimension Construction Management,Inc 150 Dexter Court 800 Dundee Avenue Elgin,IL 60120-5555 Elgin,Illinois 60120 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 5 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 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. 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. 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 or writing herein or in a duly authorized and executed amendment hereof. 29. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the Elgin Municipal Code, 1976 as amended. SIGNATURE PAGE TO FOLLOW 6 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 By: City Manager ATTEST: City Clerk Brian Harrington—3 Dimension Construction Management,Inc. By: Brian Harrington—3 Dimension Construction Management,Inc. Its: President Attest: OFFFCIAL SEAL AMBER DEERE NOTARY PUBLIC-STATE OF!LIAM MY COMMISSION EXPIRES JUN.18.2012 8 ORIGINAL RIGHT-OF-WAY ENCROACHMENT LICENSE AGREEMENT 800 DUNDEE AVENUE - ELGIN, IL 60120 EXHIBIT A • ' .-. ...-.•,-...•...•... . ....., .• (-- . ...k • i.,......,., ..,........,........,....................„...., ------\\ . , . . ...... ,i, .. a - . Air NORTH k 1.07'EAST :•i.�i1AlT-'r•: •')is _ • j O IX • o . xi �Y 8�D/ .- ova .9ua. • E/3f FACE OWN lHaf •..3'A:(yt;Y4,:". . ON LINE at 0.29 N :' . t• i-'-^'i,it• LOT 20(EXCEPT THE NEST 52 FEET THEREOF)IN BLOCK 8!)F GRAND VIEW - '"•'..•''' �5�7- 5;'�r;'. ADDITION TO ELGIN. IN THE CITY OF ELGIN.KANE COUNTY.ILuN015. • ,.a R-." ".......-; . :. .,._ -..;�., +11,-.7 +rig: 1•; `,r.•r•a�;-,C.. •±;t` ,.-'_`l'�k�'1 5... Y_J.�. ,, �":�'w F1J:fi u'!F•..t1.,.,>- './• S 1 „•. x'•9•22.-`5-C,A1 "ice L`,d. ' ;,;t � y ,S 89'45'0" E: : 1 x wry.._, l,- ,•.t•.+%.-• ...::? Sss•'� .i'rr '�.f.l.') J� .+;C- � - .rp1,i\,:[1r;n'GL�-':f•,y...r-s,��ei-:,�i„�•;: �G• 1.k.;l .ry�. +r•IZ*.i-..+r s;G„v' COMMONLY KNOWN AS: 800 DUNDEE AVENUE - :X ,� ,7 •F.^.,:�;' �i"S` �ry .r'r..�t�_AF1�'-Z Y4��%�xl� BI•Tuh6N0t15 'AVEIA•EFI 5311.94 SQUARE FEET f;- • : U : D</E To HtaVY SNOW COVE NOT'NIVSPHALI, COPICRfTE, PATIOS AND DECKS SHOW FIELS WORK COMPLETER ON JANUARY 24, 2009 CLIENT REQUESTED THIS BOUNDARY SURVEY WITHOUT NONUMENTATION STATE OF ILLINQI9 (NOT STAKED& FLAGGED OR OTHERWISE MONUMENTED) COUNTY OF C C'C' PLAT CANNOT BE USED FOR AFFIDAVIT OF TITLE GRAPHIC SCALE PYRAMID LAND sJRVE Rs INC. AS IIJJN015 LICENSED PROFESSIONAL LAND SURVEYORS, HEREBY STATE THAT WE HAVE./ hl:` PYRAIVIID LAND SURVEYORS, INC. ao o m ao 10 In SURVEYED THE PROPERTY DESCRIBED ABOVE AND THE PLAT - HEREON DRAWN ES A TRUE REPRESENTATION OF SAME. GOA N UNDER MY HAND AND SEAL THIS 241H Lend Surv6y0>^9/J/Ino/s and lN,slCons%R DAY OF JANUARY 2009 108 GREY FOX COURT,STREAMWOOD IWNOIS 60107 . ( TN PM) J. PHONE 830-497-1832 FAX.630-497 S 40 L �d THIS PROFESSIONAL SERVICE CONFORMS TO THE CURRENT • ILUNOIS MINIMUM ST AIDS F A B DART SURVEY. DRAWN BY: 0.V.5. FIELD WORK COMPLETED: JANUARY 247H, 2009 • \` DESIGN FIRM: 184-DD2898 DRAWING N0: 117=090110 SCALE COMPLETED: GENE SCOLA PLS YD3.'�-•003364 - EXPIRES 11-30-10 BOOK N0: 0901-06 ORDERED BY: R. I<OCUREKS . 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'^ t 4 '•? ti, - - r -- - .'.fS".sl�fcy Sr 4t -+er ll_ '" - V - J. � : -W a ari] � y1 , r•t r+z „ . "' t-. kv'� r £' + tom , s .� T � x 4,,,+,,4" rN � :1 ,4.i .- .. r , eg, , a,.:6 -rt ? a' ^ � g' a wiz.:,...,: Northeast Elevation Qty. 1 Set of New Awning"Skins"for Existing Awning Structure Digital Artwork Provided:Q YES ® NO Location; P,ge. ,� 3, , 8D0 Dundee Rood Elgin,IL 2 of 3 Survey Completed: ®YES p No � �' �t m "=' Filename: u:,��: 3 Dtmenston e0o Dundee ELEV cdr 04-10-09 Measurements: Q ESTIMATED ®ACCURATE �"'""" ""'�" "a"�"""""""'" "" °re`n by: N Scale: i..a,iti: N'-•^ ULV4.`8 a.--1+r,'.I•N'1Ge r rr 7cJ0. 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Southeast Elevation Qty. 1 Set of New Awning"Skins"for Existing Awning Structure • Digital Artwork Provided: ElYES ® NO Location: 800 Dundee Road Elgin,IL i igc.3 of 3 Survey Completed: ®YES NO - „k�r, Filename: Liam' �: IA _ - 3 Dimension 800 Dundee ELEV.cdr 04-1 O-O9 ....�,. ._ ..,,. ., .x.A. . „ Drawn b • �/ Scale: Revised: Measurements: ESTIMATED ®ACCURATE ,3 i\Nt fnT 4lvp. <<.IPU IgVr d�L 6Vtti 3, 4y-S 4 BS)' inx !lo7.52a 7D 3 y 7, t �TRIGVINC'A01 Cl s y t y au —�r_c r -.. / V 4 , • M f \ Memorandum r 7 t: City of Elgin Date: July 13, 2009 To: Ron Rudd, Engineer From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 09-156, Adopted at the July 8, 2009, Council Meeting Enclosed you will find the agreement listed below. Please 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. • License Agreement with 3 Dimension Construction Management, Inc. (800 Dundee Avenue)