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HomeMy WebLinkAbout23-65 Resolution No. 23-65 RESOLUTION AUTHORIZING EXECUTION OF A LICENSE AGREEMENT RENEWAL WITH GIFFORD PARK ASSOCIATION FOR USE OF LAND AS A COMMUNITY GARDEN BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a License Agreement Renewal on behalf of the City of Elgin with Gifford Park Association, for use of land as a community garden, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 12, 2023 Adopted: April 12, 2023 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk LICENSE AGREEMENT FOR USE OF LAND AS A COMMUNITY GARDEN This License Agreement renewal (hereinafter the "Agreement") is made and entered into at Elgin, Illinois this 12th day of April, 2023, by and between the City of Elgin, an Illinois municipal corporation (hereinafter the "the City") and Gifford Park Association, an Illinois not- for-profit corporation under Section 501(c)4 of the US Internal Revenue Code (hereinafter the "Licensee"). Recitals WHEREAS, the City is the owner of certain real property within the City of Elgin having parcel index number (PIN) 06-13-252-011, said property being commonly known as 111 N. Channing Street, (hereinafter referred to as the"City Property"); and, WHEREAS, Licensee is a not-for-profit corporation having an office at P.O. Box 928, Elgin, IL 60120,and whose primary purpose is preserve the integrity of the Elgin Historic District (comprising Gifford Park,the City's first neighborhood and park); and, WHEREAS, Licensee desires to utilize the City Property for the establishment and maintenance of a community garden on the City Property; and, WHEREAS, the City has agreed to grant to Licensee a temporary and non-exclusive personal privilege to use the City Property described above for the purpose of establishing and maintaining said community garden, all in accordance with and subject to the terms, conditions and limitations of this Agreement; and WHEREAS,the City and the Licensee have previously entered into a License Agreement, as amended,for the use of the City Property as a community garden,having a term that commenced on April 8, 2020 and ending on April 8,2023; and WHEREAS, the parties hereto wish to enter into a new License Agreement for the continued use of the City Property as a community garden by the Licensee. 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 Property for the purpose of establishing and maintaining a community garden (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 Property, or any other easements,conditions, covenants or restrictions of record. 3. Term. (a) Term. This Agreement and the License granted to Licensee hereunder shall commence as of April 8, 2023 and shall terminate on April 8, 2026, unless otherwise terminated prior thereto in accordance with the terms of this Agreement(the"Term"). (b) Renewal Terms. Following the Term of this Agreement, this Agreement may be renewed for successive three (3) year renewal terms, subject to mutual written agreement by the parties hereto. The parties may elect to renew this Agreement in its current form or in a modified form on such terms as they shall find mutually agreeable. 4. Consideration. The consideration for this Agreement shall be the mutual undertakings by the parties herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. 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 Property. The City retains legal possession of the full boundaries of the City Property and this Agreement merely grants to Licensee the personal privilege to use the City Property for the purposes described herein for the term of this Agreement. 6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the City Property, 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 City Property 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: Establishment and maintenance at Licensee's sole cost and expense of a community garden on the City Property, including building raised beds for growing flowers and plants, making improvements to the soil including bringing in top soil and compost, and installation of such other improvements and structures thereon as further depicted and described in the site map dated March 2, 2023, attached hereto as Exhibit A and incorporated herein by this reference. Licensee shall not have the right to expand or alter Licensee's use of the City Property 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. 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 the expiration or 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 the expiration or 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 City Property,nor any monetary damages of any kind whatsoever. 10. Permanent Removal of Encroachments and Improvements Upon Termination. At such time as this Agreement and the License herein granted to Licensee is terminated, either at the expiration of its Initial Term, the expiration of any Renewal Term, or pursuant to paragraph 9 of this Agreement, 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 Property. Any other provision of this Agreement to the contrary notwithstanding,Licensee shall immediately remove,at its sole cost and expense, any such improvements 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 Property, or in the event that the City determines that any such improvements interfere with pedestrian or vehicular traffic,public utilities, or constitute a safety hazard. Any replacement or repair of such improvements 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 Property, 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 3 City with duplicate policies or certificates evidencing insurance in force as required herein prior to utilizing the City Property. 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 City Property and any improvements thereon in good 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. Licensee shall design and maintain the community garden so as to prevent the vegetation or any improvements from obscuring visibility between motorists, bicyclists and pedestrians at intersections and pedestrian crossing areas. Licensee shall keep and maintain the City Property free from all noxious weeds including,but not limited to,ragweed,giant and common;Canada thistle,all varieties;perennial sow thistle;European bindweed;hoary cress; leafy spurge; and Russian knapweed. The City shall provide routine mowing to the service level completed regularly on the City Property prior to this agreement. 13. Water Service. The City shall allow the Licensee to use water service connections located on the City Property, the full and complete cost of which shall be borne by the City. The water consumed by the Licensee on the City Property shall be measured by a separate water meter. The City shall be responsible for all water usage charges for the City Property. The provision and supply of water shall comply with the City's water regulations and all specifications as determined and approved by the City. 14. Compliance with Law. Licensee shall adhere to and comply with all ordinances,laws,rules and regulations that may pertain to or apply to the City Property 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 City Property 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. 4 Licensee shall perform under this Agreement in accordance with all applicable legal requirements. Without limiting the foregoing,Licensee shall comply with all federal,state and local laws and regulations pertaining to the environment and/or environmental protection. License shall not store or discharge, or permit to be stored or discharged, any hazardous or toxic chemicals or pollutants on or within the City Property. 15. 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 Property. 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 City 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. 16. 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. 5 17. 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: City Manager Gifford Park Association City of Elgin P.O. Box 928 150 Dexter Court Elgin, IL 60120 Elgin, IL 60120-5555 With a copy to: With a copy to Corporation Counsel Gifford Park Association City of Elgin P.O. Box 928 150 Dexter Court Elgin, IL 60120 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. 18. 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. 19. 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. 20. 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. 21. 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. 22. 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. 6 23. 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. 24. 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. 25. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 26. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 27. 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. 28. 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. 29. 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. 30. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the Elgin Municipal Code, 1976 as amended. 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 By: _ G� City Manager ATTEST. City Clerk GIFFORD PARK ASSOCIATION By: c ' , �,,t G Li q—4- CtrL4 Name: Its: a�s7 Attest: Legal Dm&Ava=wnWAmn=m&Y Gadm Lase Agieammt-CWWd Prdk AnwivWn-Cleaa-34-23A= I 8 I i EXHIBIT A: SITE MAP March 2, 2023 16#4 North Street e C Botsford Place o 4 E: V) Cz Division Street 40 U12' raised Fruit trees � .� Watering station bed gardens + hose corral 12 U20' raised bed gardens Pumpkin patch + benches 3 additional f - Dog waste station U20' raised bed gardens , . j Pergola Sign g