HomeMy WebLinkAbout25-0415 Dream Foods LLC ROWRIGHT-OF-WAY ENCROACHMENT
LICENSE AGREEMENT
This Right -of -Way Encroachment License Agreement (hereinafter the "Agreement") is
made and entered into at Elgin, Illinois this 15 day of April , 2025, by and
between the City of Elgin, an Illinois municipal corporation (hereinafter the "City") and Dream
Foods LLC, an Illinois limited liability company (hereinafter the "Licensee").
Recitals
WHEREAS, Licensee is the owner of an establishment known as Dream Foods LLC,
which operates at the property commonly referred to as 51 S. Grove Avenue, 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, which in part consists of a pedestrian walkway area located between
South Grove Avenue and South Spring Street, and of certain public right-of-way commonly known
as South Grove Avenue, Elgin, Illinois (both rights -of -way collectively hereinafter referred to as
the "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 twenty-
three (23) tables with no more than four (4) seats per table. The portion of the Pedestrian Walkway
Area to be used by Licensee, as well as the generally acceptable configuration of the tables and
chairs, is depicted on 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 new 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 referred to as 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.
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.
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:
a. Installation, maintenance, and use for food and beverage service of an outdoor
dining area with tables and chairs, umbrellas, and flower boxes within the
Exterior Seating Area as depicted in Exhibit A. Other than those items,
equipment, and improvements that are depicted on Exhibit A, no items,
equipment, or other improvements may be stored or located within the Exterior
Seating Area without the express written consent of the City.
b. The materials, style, and appearance of the tables, chairs, umbrellas, and flower
boxes and any other items, equipment, or improvements to be located in the
Exterior Seating Area shall be consistent with the materials, style, and
appearance of the DuPage Court Improvements and shall be subject to the prior
written approval of the City, in its sole discretion. No signage or advertising
shall be located and/or placed upon the tables, chairs, umbrellas, and/or flower
boxes, except that non -permanent menus may be placed upon tables in so long
as (1) their design and size are intended to only inform persons seated at the
associated table and (2) they are not left out upon said tables when the Exterior
Seating Area is closed to patrons.
c. No items, equipment, or improvements may be permanently installed or
otherwise affixed to the City property within the Exterior Seating Area,
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including, without limitation, bolting or otherwise affixing any items,
equipment, or improvements to the pavers.
d. Excepts as expressly set forth herein, Licensee shall not be authorized to make
use of or utilize any other property, resources, or improvements of the City,
including but not limited to any light or utility poles or any other public electric
or power supply.
e. Serving and seating hours shall be limited to Monday through Sunday, 7:00
a.m. to 11:00 p.m. The Exterior Seating Area shall be closed to patrons at all
other times.
f. No amplified music shall be played outdoors, and no sound amplification
devices shall be placed or utilized in the Exterior Seating Area.
Notwithstanding the foregoing, Licensee may use televisions in the Exterior
Seating Area, subject to compliance with the City's noise ordinance and the
provisions and restrictions in Licensee's Class O liquor license.
g. All tables and chairs, umbrellas, flower boxes, and any other items, equipment,
or temporary improvements associated with the Exterior Seating Area shall be
completely removed by the Licensee at its costs at the earlier of October 1 each
year or the first snowfall each year and may be reinstalled and opened on May
1. Licensee shall also remove the tables and chairs, umbrellas, flower boxes,
any other items, equipment, or temporary improvements within the Exterior
Seating Area at such other times as may be required by the City, in the City's
sole discretion.
h. Licensee is responsible at its costs for removal of all trash inside and around the
perimeter of the Exterior Seating Area at the close of business each day.
i. 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. In
addition, this Agreement shall automatically terminate in the event of the non -renewal,
surrender, or revocation of the Licensee's liquor license for the adjacent Licensee's
Premises. Finally, this Agreement may be suspended or terminated immediately by the
City upon written notice to the Licensee of an executive order by either the Mayor or the
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Governor of the State of Illinois requiring the closure or restricting the use of such 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.
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 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;
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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 or therein 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.
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
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 Kevin Echevarria
City of Elgin Dream Foods LLC
150 Dexter Court 51 S. Grove Avenue
Elgin, IL 60120-5555 Elgin, IL 60120-6403
With a copy to: With a copy to:
Corporation Counsel
City of Elgin
150 Dexter Court
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.
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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 parry 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
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 parry 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, 1976 as amended.
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
DREAM FOODS LLC
By: By: /40&�
Richard G. Kozal, City Manager ( evin Echevarria, Its Manager and
Registered Agent
ATTEST:
Kimberly Dewi , y
Clerk
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ATTEST:
Print Name Below]
Printed Name: Yesenia Echevarria
EXHIBIT A
(5 Pages)
Depiction of Exterior Seating Area, Prepared by Community Development
Department, Dated March 18, 2025
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