14-0804 ROW 829 Walnut Ave E LG N MEMORANDUM
THE CITY IN THE SUBURBS-
DATE: August 12, 2014
TO: Sean Stegall, City Manager
FROM: William Becker, Engineering Inspector kit)
SUBJECT: 829 Walnut Avenue
Right-of-Way Encroachment License Agreement
COPY: William Cogley, Corporation Counsel/Chief Development Officer
Joe Evers, City Engineer
Ron Rudd, Senior Engineer
File
The owner of the subject property, Bruce & Kathleen Nelson, located at 829 Walnut Avenue,
Elgin, IL 60123, have requested to enter into a license agreement with the City to install an
overhang in the Walnut Avenue right-of-way. The License agreement will allow the subject
property to utilize a portion of the right-of-way for the installation of a 16" overhang on the
north side of their building on Walnut Avenue. The specific location is identified in the legal
description attached to the License agreement as Exhibit A. The overhang improvement is
requested to minimize water damage to the adjacent building.
The owner of the subject property will be responsible for the installation and maintenance of
the overhang within the right-of-way. The owner has provided the city with a certificate of
insurance with the City as additionally insured and the license agreement template, previously
approved by the legal department, was modified for this location.
Please execute the agreement where indicated and return to me at your earliest convenience.
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 4th day of August, 2014, by and between the City of
Elgin,an Illinois municipal corporation(hereinafter the "the City")and Bruce G. and Kathleen L.
Nelson ,owners in joint(hereinafter the "licensee").
Recitals
WHEREAS, 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 829 Walnut Avenue, Lot 5 Block.Grote& Waldron's 4th
Addition to Elgin (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 Walnut
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 cantilever 2x6 over existing gable end by 16"and install aluminum fascia in
certain sections of said 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 an 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 an to use the
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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 easements, if any, located within the City Right-Of-Way, or
any other easements,conditions,convenants 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.
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 to scope to the
following use or uses:
Cantilever 2x6 over existing gable end by 16" and install aluminum fascia
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.
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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.
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
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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
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.
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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.
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 — - -
City of Elgin _ _ //°
150 Dexter Court r've e Aje<SC9.rc x
• Elgin,IL 60120-5555 ) 79' IV CA./ ,Z, ,-t
E/ r"et, J cC3/z3
With a copy to: With a copy to
Corporation Counsel _
City of Elgin y v e , /s Oh.
150 Dexter Court
Elgin,IL 60120-5555 `7 2' I" 7e lc w A h
I , X L 6 r/z.T
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 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 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.
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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
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•
•
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: _5 ALe / • /b.
7 Manager
ATTEST:
•iitAA.A4/ ,44/46e.:4
City Clerk
[INSERT NAME OF LICENSEE]
BY:
Name: Z do v L -e- IV-c60 "-
Its:
Attest:
JENNIFER QUINTON
1C OFFICIAL SEAL
Notary Public,State of I linois
My Commission Expires
�.�. January 10,2016
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