09-173 t
Resolution No. 09-173
RESOLUTION
AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH
DOMANI CAFE
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 Domani Cafe to permit
outside seating at licensee's premises at 109 East Highland Avenue, a copy of which is attached
hereto and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: August 12, 2009
Adopted: August 12, 2009
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this /a day of nuo;1 S`- , 2009,
by and between the City of Elgin, an Illinois municipal corporation, organized and existing under
the laws of the State of Illinois (hereinafter referred to as the "City") and Domani Café, an
Illinois corporation, (hereinafter referred to as "Licensee").
WITNES SETH
WHEREAS, the City is the owner of certain public property, consisting of a pedestrian
walk area commonly known as Highland Avenue, Elgin, Illinois, (hereinafter referred to as
"Pedestrian Walkway Area"), which is immediately adjacent to Licensee's premises at 109 East
Highland Avenue,Elgin,Illinois; and
WHEREAS, Licensee desires to provide for outside seating consisting of tables and
chairs (hereinafter referred to as "Tables and Chairs") at its restaurant commonly known as
"Domani Café"; and
WHEREAS, both parties hereto have each determined it to be in the best interests of the
citizens of the City, and of Licensee, respectively, to facilitate the aforementioned placement of
Tables and Chairs.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby
agree as follows:
1. The aforementioned recitals are hereby incorporated into and made a part of this
agreement.
2. The City hereby grants unto Licensee a nonexclusive temporary license
permitting the Licensee to place Tables and Chairs on to a portion of the East Highland Avenue
Pedestrian Walkway Area at the locations drawn on the diagram attached hereto and made a part
hereof as Attachment "A" during the hours of 6:00 a.m. — 5:00 p.m., Monday through Friday;
and 7:00 a.m. to 2:00 p.m.., Saturday. Licensee shall remove Tables and Chairs during all other
times, and at such times as may be required by the City's Economic Development Director and
or his designee(hereinafter referred to as "Director").
3. In consideration for this agreement, Licensee agrees to pay to the City a fee of
Ten Dollars($10.00) due and payable upon the execution of this agreement.
4. This agreement and the licenses associated herewith shall terminate five (5) years
from the date of this agreement. Alternatively, this agreement may be terminated by either party
hereto 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. Any such termination shall be without
penalty or liability to City for any reason.
5. Licensee agrees to modify the Tables and Chairs only pursuant to the specific
written authorization of the Director and at such site, position and manner as may be designated
by the Director or his designee. The location of any Tables and Chairs shall in no event interfere
with pedestrian traffic, public utilities or result in any safety hazard, and shall not result in any
violation of law.
Licensee understands, acknowledges and agrees that this Agreement does not create an interest
or estate in Licensee's favor in the Pedestrian Walkway Area. City retains legal possession of
the full boundaries of the Pedestrian Walkway Area and this Agreement merely grants to
Licensee the personal privilege to use the Pedestrian Walkway Area described above throughout
the term of this Agreement.
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Notwithstanding any expenditure of money, time and/or labor by Licensee on or within the
Pedestrian Walkway 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 Pedestrian Walkway Area at Licensee's own risk and peril.
6. Licensee agrees and warrants that all Tables and Chairs, shall be placed and
maintained at all times in a safe, neat, sightly manner, and good physical condition and in
accordance with all requirements of the Elgin Municipal Code, 1976, as amended. The City
shall be the sole judge of the maintenance and placement of such Tables and Chairs and upon
written notice by the City, through its Director, stating in general terms how and in what manner
replacement, removal or relocation is required. Licensee shall be required to perform such
removal, relocation or replacement at Licensee's sole cost. If Licensee fails to do so, then the
City shall have the right to perform such relocation, removal or replacement at Licensee's sole
cost. Any such Tables and Chairs shall be removed from the Pedestrian Walkway Area
immediately upon instructions from the Director for the removal of same. Licensee shall at its
own responsibility, liability and expense obtain and keep in effect all licenses, bonds and permits
necessary for the existence of all materials installed and/or erected pursuant to this agreement.
7. Notwithstanding any other provision in this agreement to the contrary, Licensee
shall immediately remove, at its own expense, any Tables and Chairs in the event the City
determines such removal is necessary or convenient for the replacement of any utilities or any
other public improvements on the Pedestrian Walkway Area or in the event the City determines
that the Tables and Chairs interfere with pedestrian or vehicular traffic, public utilities or
constitutes a safety hazard. Any replacement, removal or relocation of the Tables and Chairs
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shall be at the sole expense of the Licensee. If Licensee fails to perform its duties pursuant to
this paragraph, the City shall have the right to remove the Tables and Chairs at no cost or
liability to the City. Licensee covenants and agrees to reimburse the City upon thirty (30) days
written demand for such removal.
8. Upon termination of this agreement, Licensee shall immediately remove all
Tables and Chairs and shall restore the Pedestrian Walkway Area to its original condition.
9. The City shall in no way be liable for loss of or damage to the Pedestrian
Walkway Area 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 during the replacement,
use, removal or relocation of the Tables and Chairs and Licensee hereby indemnifies and holds
harmless the City, its officers, agents, servants and employees from and against any and all such
claims.
10. To the fullest extent permitted by law Licensee agrees to and shall indemnify,
defend and hold harmless the City, its officers, employees, agents,boards and commissions from
and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief of
whatsoever nature, including but not limited to workers' compensation claims, in any way
resulting from or arising out of the existence or performance of this agreement and/or the
existence, maintenance, use or location of the Tables and Chairs. In the event of any action
against the City, its officers, employees, agents, 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. The provisions of this paragraph shall survive any termination
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and/or expiration of this agreement, and shall be construed as entirely exculpatory as to City in
all respects.
11. Licensee covenants and agrees to furnish the City with a certificate of insurance
naming the City of Elgin as additionally named insured for the Pedestrian Walkway Area as
described in this license agreement as proof that it has secured and paid for a policy of public
liability insurance annually covering all public risks related to the use, maintenance, existence or
location of Tables and Chairs. The amounts of such insurance shall be as follows:
Comprehensive General Liability for Bodily Injury, Personal Injury and Property Damage:
$100,000 per occurrence; $500,000 annual aggregate; with the understanding of and agreement
by Licensee that such insurance amounts shall be revised upward at the City's option and
Licensee shall so revise such amounts within thirty (30) days following notice to Licensee of
such requirements at Licensee's sole cost. The insurance required pursuant to this agreement
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
prorate, it shall be endorsed to be primary with respect to the City. Such insurance shall not be
exculpatory as to the insurance provider or Licensee in any manner. The provisions of this
paragraph are of the essence of this agreement.
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.
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12. This license is personal to Licensee. It is non-assignable and any attempt to
assign this license will automatically terminate the license privileges granted to Licensee
hereunder.
13. Licensee agrees that should any action, whether real or asserted, at law or in
equity, arise out of the terms of this agreement, or by Licensee's operations on the Pedestrian
Walkway Area, venue for the said action shall lie in Kane County, Illinois. This agreement shall
be subject to and governed by the laws of the State of Illinois.
14. In any action brought by the City for the enforcement of the obligations of
Licensee and the City is the prevailing party in such action, the City shall also be entitled to
recover interest and reasonable attorney's fees.
15. This agreement shall not be construed so as to create a joint venture, partnership,
employment or other agency relationship between the parties hereto.
16. This agreement is the sole agreement between the parties hereto regarding the
subject matter hereof. There are no other agreements, either oral or implied, between the parties
hereto regarding the subject matter hereof.
This Agreement may not be changed, modified or amended except 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.
17. 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.
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18. All notices pursuant to this agreement shall be deemed effective when directed to
the following:
FOR THE CITY: RuthAnne K. Hall,Management Analyst
City of Elgin
150 Dexter Court
Elgin,IL 60120-5555
FOR THE LICENSEE: Domani Café
Leo Urdaneta
109 East Highland Avenue
Elgin, Illinois 60120
19. Notwithstanding any other provision of this agreement it is expressly agreed and
understood that in connection with the performance of this agreement that the Licensee shall
comply with all applicable Federal, State, City and other requirements of law, including, but not
limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace
safety and legal status of employees. Without limiting the foregoing, Licensee hereby certifies,
represents and warrants to the City that all Licensee's employees and/or agents who will be
providing products and/or services with respect to this agreement shall be legal residents of the
United States. Licensee shall also at its expense secure all permits and licenses, pay all charges
and fees and give all notices necessary and incident to the due and lawful prosecution of the
work, and/or the products and/or services to be provided for in this agreement. The City shall
have the right to audit any records in the possession or control of the Licensee to determine
Licensee's compliance with the provisions of this section. In the event the City proceeds with
such an audit the Licensee shall make available to the City the Licensee's relevant records at no
cost to the City.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement on the date
and year first written above.
CITY OF ELGIN Domani Café
BY ,/ . /j /I• By
Se. 1'Stegall, City M. _er Its bwoer
By
Its
Attest: Attest:
City Clerk
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July 16,2009 _`' ' `e`'_
TO: Mayor and Members of the City Council
D�^�"
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FROM: Sean R. Stegall, City Manager
RuthAnne K. Hall, Management Analyst
SUBJECT: License Agreement with Domani Café to Permit Outside Seating
PURPOSE
The purpose of this memorandum is to provide the Mayor and members of the City Council with
information to consider approving a License Agreement with Domani Café which would permit
the placement of tables and chairs in the public right-of-way adjacent to 109 East Highland
Avenue.
RECOMMENDATION
It is recommended that the City Council approve the License Agreement with Domani Café.
BACKGROUND
Domani Café recently opened as a coffee house in downtown Elgin at 109 East Highland
Avenue. To promote business, the owner has requested permission to place several café tables
and chairs on the public right of way. The proposed layout calls for 2 tables with seating
capacity for up to 6 customers. Currently, Al's Café, Villa Verone, Mad Maggie's, and Red Bar
Winery are approved for outside seating.
There will be restrictions on the times that the outside seating may be used. Outside seating shall
be permitted during the hours of 6:00 a.m. to 5:00 p.m., Monday through Friday; and 7:00 a.m.
to 2:00 p.m. Saturday. Ownership shall remove the tables and chairs during all other times.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None.
Domani Café License Agreement
July 16,2009
Page 2
FINANCIAL IMPACT
The fee for the License Agreement is $10. There is minimal staff time involved with monitoring
the insurance requirements associated with the licensing agreements.
LEGAL IMPACT
None.
ALTERNATIVES
1. The City Council may choose to approve the License Agreement with Domani Café to
allow for outside seating.
2. The City Council may choose not to approve the License Agreement with Domani Café
to allow for outside seating.
Respectfully submitted for Council consideration.
SRS/rh
Attachments
4.,4 OF Et.
C
Ci ':t. Memorandum of Elgin
Memorandum
f x7
Date: August 17, 2009
To: RuthAnne Hall, Management Analyst
From: Jennifer Quinton, Deputy City Clerk
Subject: Resolution No. 09-173, Adopted at the August 12, 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 Domani Café