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HomeMy WebLinkAbout24-0627 Als Cafe ROW'5� /t a m 2� ?7- 6 RIGHT-OF-WAY ENCROACHMENT , LICENSE AGREEMENT'L— This Right -of -Way Encroachment License Agreement (hereinafter the "Agreement") is made and entered into at Elgin, Illinois this 27 day of June 2024, by and between the City of Elgin, an Illinois municipal corporation (hereinafter the "City") and j & L Restaurant Corp. DBA/ Al's Cafe and Creamery (hereinafter the "Licensee"). Recitals WHEREAS, Licensee is the owner of a restaurant known as Al's Cafe and Creamery located at 43 DuPage Court Elgin, Illinois (hereinafter referred to as the "Licensee's Premises"); and WHEREAS, the City is the owner of a certain public right-of-way commonly known as DuPage Court, Elgin, Illinois, (hereinafter referred to as "Pedestrian Walkway Area"); and WHEREAS, the Pedestrian Walkway Area is adjacent to Licensee's Premises; and WHEREAS, Licensee desires to utilize a portion of the Pedestrian Walkway Area immediately adjacent to Licensee's Premises for an exterior seating area, to consist of up to 18 tables with up to 4 seats per table. The portion of the Pedestrian Walkway Area to be used by Licensee is depicted on the Exhibit A, which is attached hereto and incorporated into this Agreement by this reference (hereinafter the "Exterior Seating Area"); and WHEREAS, the City has agreed to grant to Licensee a temporary and non-exclusive personal privilege to use the Exterior Seating 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 Pedestrian Walkway Area and to establish the Exterior Seating 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 Pedestrian Walkway Area, or any other easements, conditions, covenants or restrictions of record. 3. Term. This Agreement and the License granted to Licensee hereunder shall commence as of the date of this Agreement and shall terminate five (5) years from the date of this Agreement, unless terminated prior thereto in accordance with the terms of this Agreement. 1 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. 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 Exterior Seating Area or the Pedestrian Walkway Area. 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 Exterior Seating 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 Exterior Seating 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 Exterior Seating Area at Licensee's own risk and peril. 7. Limited Scope of License. The License granted to Licensee is limited in scope to the following use or uses: The License granted to Licensee shall be limited to the placement of tables and chairs within the Exterior Seating Area in the number and at the approximate locations as depicted on Exhibit A. Such tables and chairs may only be located within the Exterior Seating Area during the hours of 6:00 a.m. — 12:00 a.m. (midnight), any day of the week. Licensee shall remove the tables and chairs during all other times, and at such other times as may be required by the City in its sole discretion. Music is permitted within the Exterior Seating Area but no sound amplification device or system shall be heard from 150 feet away between the hours of 6:00 a.m. to 10:00 p.m. and from 75 feet away from 10:00 p.m. to midnight. No music is permitted after midnight. Licensee shall not have the right to expand the Exterior Seating Area or alter or change Licensee's use of the Exterior Seating 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. Finally, this Agreement may be terminated immediately by the City upon written notice to the Licensee of an executive order to that effect issued by either the Mayor or the Governor of the State of Illinois to terminate Exterior Seating Areas. 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 Licensee. In the event of termination of this Agreement, Licensee shall not be entitled to receive a refund of any portion of the consideration paid for this Agreement, nor shall Licensee be entitled to any compensation or reimbursement for any license fees, costs or expenses incurred or in any way arising from this Agreement or relating to the construction, installation, maintenance and/or removal of improvements from the Exterior Seating 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 Pedestrian Walkway Area. 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 Pedestrian Walkway Area, 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 Pedestrian Walkway Area, 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 upon thirty (30) days written demand for such reimbursement. 11. Insurance. Licensee shall maintain at all times during the term of this Agreement, at Licensee's sole cost, a policy or policies of comprehensive general liability coverage on an occurrence basis from an insurance company licensed with the State of Illinois or other insurer approved by Licensee with at least $1,000,000.00 single limit coverage on all risks. Such policy or policies shall provide that the coverage afforded thereunder shall not be canceled, terminated, or materially changed until at least thirty (30) days written notice has been given to the City. Licensee shall name the City as co-insured and shall furnish the City with duplicate policies or certificates evidencing insurance in force as required herein prior to utilizing the Exterior Seating Area. Evidence of payment of premiums shall be delivered to the City at least thirty (30) days prior to the expiration dates of each existing insurance policy. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the City. There shall be no endorsement or modification of this insurance to make it excess over other available insurance; alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the City. 12. Construction and Maintenance. Licensee agrees that the 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 Exterior Seating Area 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 3 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 Exterior Seating 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 Exterior Seating 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 at its own cost and expense. Licensee shall perform under this Agreement in accordance with all applicable legal requirements. 14. Indemnification. To the fullest extent permitted by law, Licensee agrees to indemnify, defend and save the City, its officers, agents, servants, employees, boards and commissions harmless from and against: 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 Pedestrian Walkway Area. 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 Exterior Seating Area or Licensee's property. Such indemnification shall include the City's reasonable attorney's fees incurred in connection with any such loss, claim or suit. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 15. Breach and Limitation on Damages. If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party shall have the right to seek such administrative, contractual or legal remedies as may be suitable for such violation or breach; provided, however, that in no event shall the City be liable to Licensee for monetary damages of any kind relating to or arising from any breach of this Agreement, and that no action of any kind shall be commenced by Licensee 0 against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of Licensee related to or arising from this Agreement and the City is the prevailing party in such action, the City shall be entitled to recover from Licensee reasonable interest and attorney's fees. 16. Notices. Any notice required or permitted under this Agreement shall be in writing and shall be sufficient if personally delivered or mailed by certified mail, return receipt requested, addressed as follows: To the City: To the Licensee: City Engineer [insert Name of Business from'Page 1 ] City of Elgin [insert Name of Responsible Person at Business] 150 Dexter Court [insert Address of Responsible Person] Elgin, IL 60120-5555 [insert City, State, Zip of Responsible Person] With a copy to: With a copy to: Corporation Counsel [insert Name of Person Receiving Copy] City of Elgin [insert Address of Person Receiving Copy] 150 Dexter Court [insert City, State, Zip of Person Receiving Copy] Elgin, IL 60120-5555 Notices mailed in accordance with the provisions of this paragraph shall be deemed to have been given on the third business day following mailing. Notices personally delivered shall be deemed to have been given upon delivery. 17. No Joint Venture or Partnership. This Agreement shall not be construed so as to create a joint venture, partnership, employment, or other agency relationship between the parties hereto. 18. No Personal Liability. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement, or because of their execution, approval or attempted execution of this Agreement. 19. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and Licensee, and as such, this Agreement shall not be construed against any other party as the otherwise purported drafter of the same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 20. Severability. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable, for any reason, the remainder of this Agreement shall remain in full force and effect. 21. Governing Law. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes or for the enforcement of any rights 5 arising out of or in connection with this Agreement shall be in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 22. References in Agreement. All references in this Agreement to the singular shall include the plural where applicable, and all reference to the masculine shall include the feminine and vice versa. If either reference shall be declared invalid, such decision shall not affect the validity of any remaining portion that shall remain in full force and effect. 23. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 24. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this Agreement. 25. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. 26. Assignment. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto. The License granted herein is personal to Licensee. Any attempt to assign this License will automatically terminate the license privileges granted to Licensee hereunder. 27. Entire Agreement. This Agreement and its exhibits constitute the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. 28. Modification. This Agreement may be changed, modified or amended only by a duly - authorized written instrument executed by the parties hereto. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly -authorized and executed amendment hereof. 29. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the Elgin Municipal Code. 30. Execution. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this agreement shall be re -executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. 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 Richard G. Kozal, City Manager ATTEST: Kimberly Dewis, City Clerk 01 J & L RESTAURANT CORP. DBA/ AL' S CAFE AND CREAMERY By: I - Patricia Luyten-Jamin Its: President/Owner Attest: Ly Jamin 7 ATTACHMENT A Depiction of Exterior Seating Area a_ E 0 i o 99 ; LO a - iIL _ > Z u ui ( �r� i (JJ(J