16-0713 Kirpach ROW 227 N. Porter St. • lb 0-.113
7 y
RIGHT-OF-WAY ENCROACI;MENT
LICENSE AGREEMENT
This Right-of-Way Encroachment License Agreeme t (hereinafter the "Agreement") is
made and entered into at Elgin, Illinois this i3-0^ da of -.MA 2016, by and
between the City of Elgin, an Illinois municipal corporate n (hereinafter the "the City") and
Theodore W. Kirpach, an Individual.
Recitals
WHEREAS, Licensee is the record titleholder and esponsible for the maintenance of
certain real property located within the City of Elgin, Coun y of Kane, State of Illinois, legally
described on Exhibit A, attached hereto and incorporated h ein by this reference, said property
being commonly known as 227 N. Porter Street, Elgin, Illinois (hereinafter referred to as
"Licensee's Property"); and,
WHEREAS, the City is the owner of the public rig is-of-way within or adjacent to the
area identified as the Licensee's Property including, but not invited to, those portions of Addison
Street located within said area(hereinafter the"the City Rig t-Of-Way"); and,
WHEREAS, Licensee desires to utilize a portion of the City Right-Of-Way for the
installation of a picket fence in certain sections of said Cit Right-Of-Way within or adjacent to
the Licensee's Property. The portion of the City Right-•f--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 Lice+ see a temporary and non-exclusive
personal privilege to use the Encroachment Area describe, above, all in accordance with and
subject to the terms, conditions and limitations of this Agreement.
NOW, THEREFORE, for and in consideration of e mutual covenants, and obligations
contained herein and other good and valuable consithl ation received by each party, the
sufficiency of which is hereby acknowledged, the parties a ee as follows:
1. Incorporation of Recitals. The foregoing recit. s are hereby incorporated into this
Agreement in their entirety.
2. Grant of License. The City hereby grants to Licr nsee a temporary and non-exclusive
personal privilege and permission to enter upon e City Right-Of-Way and to use the
Encroachment Area described above (hereinafter t e "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, loc.ted within the City Right-Of-Way, or
any other easements, conditions, covenants or res ' tions of record.
1
/
1 ,
f I
3. Term. This Agreement and the License granted to Licensee hereunder shall commence as
of the date of this Agreement and shall continue unti: terminated in accordance with the
terms of this Agreement.
4. Consideration. The consideration to be paid by Li ensee to the City for the privilege
granted by this Agreement shall be Ten Dollars ($10 00), the receipt of which is hereby
acknowledged by the City.
5. No Interest in Land. Licensee understands, acknowledges and agrees that this Agreement
does not create an interest or estate in Licensee's favor in the City Right-Of-Way. The
City retains legal possession of the full boundaries of its right-of-way and this Agreement
merely grants to Licensee the personal privilege to u$e the Encroachment Area described
above throughout the term of this Agreement.
6. No Vested Right. Notwithstanding any expenditu e of money, time and/or labor by
Licensee on or within the Encroachment Area, th s Agreement shall in no event be
construed to create an assignment coupled with an in erest or any vested rights in favor of
Licensee. Licensee shall expend any time, money .r 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 in scope to the
following use or uses:
Installation and maintenance of a woo'en picket fence with pickets not
exceeding 48" and posts not exceeding 56' height in the City Right-Of-Way,
specifically, those portions of the pub c streets of Licensee Drive and
Subdivision Parkway, as depicted on Exhi•it A, attached to and incorporated
into this Agreement by reference, iden tied herein as the Encroachment
Area. Licensee shall design and mainta't the aforementioned fence so as to
prevent it from obscuring visibility •etween motorists, bicyclists and
pedestrians at intersections and pedestria crossing areas. Licensee's design
and maintenance of this fence shall be ubject to the sole approval of the
City's Public Works Director.
Licensee shall not have the right to expand the E e croachment Area or alter or change
Licensee's use of the Encroachment Area without e City's prior written consent.
8. Non-Transferability of License. The License grant:d to Licensee by this Agreement is a
mere personal privilege granted by the City to Lic-nsee, and is neither transferable nor
assignable by Licensee without the City's prior wri en 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 b; terminated by the City upon five (5)
days written notice to Licensee of a breach of any term or condition of this Agreement.
C:\Users\tkirpach\AppData\Local\Microsoft\Windows\Temporary Internet Files\Conten.Outlook\BREA102L\0 Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
2
a. Recording of Notice of Termination. Upon toination of this Agreement the City
may cause to be recorded with the County Re order of Kane County, Illinois, a
written Notice of Termination.
b. No Compensation to Owner. In the event of tern ination of this Agreement, Licensee
shall not be entitled to receive a refund of any ortion of the consideration paid for
this Agreement, nor shall Licensee be entitled to y compensation or reimbursement
for any costs or expenses incurred in any way ari ing from this Agreement or relating
to the construction, installation, maintenance an or removal of improvements in the
Encroachment Area,nor any monetary damages f any kind whatsoever.
10. Permanent Removal of Encroachments Upon Te mination. At such time as this
Agreement and the License herein granted to Licen.ee 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 maintains d by Licensee in the City Right-Of-
Way. Any other provision of this Agreement to thi contrary notwithstanding, Licensee
shall immediately remove, at its sole cost and expanse, 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 'tilities, or constitute a safety hazard.
Any replacement or repair of such encroachments s all be at the sole cost and expense of
the Licensee. If the Licensee fails to exercise its u uties 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 .hall 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 d ring the term of this Agreement, at
Licensee's sole cost, a policy or policies of compr:hensive general liability coverage on
an occurrence basis from an insurance company .censed with the State of Illinois or
other insurer approved by Licensee with at least $ ,000,000.00 single limit coverage on
all risks. Such policy or policies shall provide that i e 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 certific;tes evidencing insurance in force as
required herein prior to utilizing the Encroachm-nt Area. Evidence of payment of
premiums shall be delivered to the City at leastthirty (30) days prior to the expiration
dates of each existing insurance policy. This insur ce 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 insur'nce states that it is excess or prorated,
it shall be endorsed to be primary with respect to th City.
12. Construction and Maintenance. Licensee agrees at the improvements described herein
shall be erected and maintained at all times in a safe, neat, sightly and good physical
C:\Users\tkirpach\AppData\Local\Microsoft\Windows\Temporary Internet Files\Conte .Outlook\BREAl02L\O Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
3
condition and in accordance with all requirements of the Elgin Municipal Code, 1976, as
amended. During the term of this Agreement, License shall, at Licensee's sole cost and
expense, maintain the Encroachment Area and animprovements thereon in good
condition and in compliance with any applicable requ rements of law. The City shall be
the sole judge of the quality of the construction and m intenance and, upon written notice
of the City stating in general terms how and in wh t manner maintenance is required,
Licensee shall be required to perform such mainten ce. If Licensee fails to do so, then
the City shall have the right to perform such mainte ante, 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 an comply with all ordinances, laws,
rules and regulations that may pertain to or apply o 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 aw, if any, to conduct or engage in
the use of the Encroachment Area described her in, that Licensee will procure all
additional licenses,permits or like permission herein fter required by law during the term
of this Agreement, and that Licensee will keep the sa e in full force and effect during the
term of this Agreement. Licensee shall perform unde 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 License:, 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,judgment-, costs,attorney's fees, loss, liability,
damage or other relief, including but not limited o Workers' Compensation claims, to
any person or property in any way resulting fern or arising out of the existence of
this Agreement and/or the existence, mainten• ce, use or location of Licensee's
encroaching improvements within the City Righ -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.
c. Mechanic's Lien. Any loss, liability, claim or suit arising from the foreclosure, or
attempted foreclosure, of a mechanic's or mate 'almen's lien for goods delivered to
Licensee or work performed by or for Licensee pon or at the Encroachment Area or
Licensee's property. Such indemnification hall include the City's reasonable
attorney's fees incurred in connection with any uch loss, claim or suit.
C:\Users\tkirpach\AppData\L.ocal\Microsoft\Windows\Temporary Internet Files\Content Outlook\BREA102L\0 Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
4
The provisions of this paragraph shall survive any termination and/or expiration of this
Agreement.
15. Breach and Limitation on Damages. If either party iolates 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 administrati e, contractual or legal remedies as
may be suitable for such violation or breach; provider, however, that in no event shall the
City be liable to Licensee for monetary damages of. y kind relating to or arising from
any breach of this Agreement, and that no action o any kind shall be commenced by
Licensee against the City for monetary damages. In he event any legal action is brought
by the City for the enforcement of any of the obligat.ons of Licensee related to or arising
from this Agreement and the City is the prevailing p: y in such action, the City shall be
entitled to recover from Licensee reasonable interest ; d attorney's fees.
16. Notices. Any notice required or permitted under thi Agreement shall be in writing and
shall be sufficient if personally delivered or mail d by certified mail, return receipt
requested, addressed as follows:
To the City: To the wner:
City Engineer Theodo e W. Kirpach
City of Elgin 50 S. G ove Ave., 11107
150 Dexter Court Elgin, I 60120
Elgin, IL 60120-5555
With a copy to: With a opy to
Corporation Counsel Peter V sely
City of Elgin 5400 alnut Ave.,#404
150 Dexter Court Downes Grove, IL 60515
Elgin, IL 60120-5555
Notices mailed in accordance with the provisions f this paragraph shall be deemed to
have been given on the third business day foil wing mailing. Notices personally
delivered shall be deemed to have been given upon elivery.
17. No Joint Venture or Partnership. This Agreement hall not be construed so as to create a
joint venture, partnership, employment, or other a ncy relationship between the parties
hereto.
18. No Personal Liability. No official, director, offic , 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, appr val or attempted execution of this
Agreement.
C:\Users\tkirpach\AppData\Local\Microsoft\Windows\Temporary Internet Files\Conten.Outlook\BREA102L\0 Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
5
19. Joint and Collective Work Product. This Agreei ent is and shall be deemed and
construed to be a joint and collective work product of he City and Licensee, and as such,
this Agreement shall not be construed against any of -r party as the otherwise purported
drafter of the same by any court of competent j 'sdiction in order to resolve any
inconsistency, ambiguity, vagueness or conflict, i any, in the terms or provisions
contained herein.
20. Severability. The terms of this Agreement shall be .everable. In the event any of the
terms or provisions of this Agreement are deemed to se void or otherwise unenforceable,
for any reason,the remainder of this Agreement shall emain in full force and effect.
21. Governing Law. This Agreement shall be subject t• and governed by the laws of the
State of Illinois. Venue for the resolution of any 'i isputes or the enforcement of any
rights arising out of or in connection with this Licen.e agreement shall be in the Circuit
Court for the Sixteenth Judicial Circuit, Kane County Illinois.
22. References in Agreement. All references in this A: -ement to the singular shall include
the plural where applicable, and all reference to the asculine shall include the feminine
and vice versa. If either reference shall be declared i valid, such decision shall not affect
the validity of any remaining portion that shall remaii in full force and effect.
23. Multiple Counterparts. This Agreement may be ex:cuted in multiple counterparts, each
of which shall be deemed an original, but all of wh ch together shall constitute one and
the same instrument.
24. Paragraph Paragraph headin s are inse ed for convenience onlyand in no
b P Headings. g
way limit or define the interpretation to be placed up n this Agreement.
25. Binding Agreement on Parties. This Agreement s all be binding on the parties hereto
and their respective successors and permitted assign-.
26. Assignment. This Agreement and the obligations h ein may not be assigned without the
express written consent of each of the parties he -to. The License granted herein is
personal to Licensee. Any attempt to assign this Li•ense will automatically terminate the
license privileges granted to Licensee hereunder.
27. Entire Agreement. This Agreement and its exhibit. constitute the entire agreement and
understanding between the parties and supersedes y prior agreement or understanding
relating to the subject matter of this Agreement.
28. Modification. This Agreement may be changed, i odified or amended only by a duly
authorized written instrument executed by the pa es 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.
C:\Users\tkirpach\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\BREA102L\0 Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
6
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 FOL .OW
C:\Users\tkirpach\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content. utlook\BREA102L\0 Kiipach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
7
IN WITNESS WHEREOF, each of the parties heret has caused this Agreement to be
executed by its duly authorized representative as of the day a d year first above written.
CITY O ELGIN
BY:/ 1 {6L
City Manager
ATTEST:
sklux.)
ity Clerk
Theodore W. rpach
0
By: •
J____14/. t.,ec.,-- (
Name: Dt - GO Kt tzf.l cd
Its: rPirJnf e2--
Attest:
'2LAttest:
C:\Users\tkirpach\AppData\L.ocal\Microsoft\Windows\Temporary Internet Files\Content. utlook\BREA102L\0 Kirpach Jun 20 227 N Porter
Right of Way Encroachment License Agreement Approved 06-23-2016.doc
8
SCHEDULE A
Right of Way Encroachment LicenseAI reement
227 N. Porter Street
Let it be recognized that the property, i
Lot 7 in Block 4 of Grote&Waldron's Third Addition to Elgin,in the City of Elgin, Kane County, Illinois
is commonly known as 227 North Porter Street, Elgin, Illinois.
,
SCHEDULE B
Right of Way Encroachment License Agreement
227 N. Porter Street 1
The ac Encro h ment Area is indicated below:
, \
1 \1
e...-v' t - <-, I
p� ISti _57 z r r"r �� c>,clzve_t>,ill-
-SczatEc-,1lc,I7c- 4/ip.
lo
m Nii � 2G�^B
'U�� 1. v2; ,-)—"r•1,.35,- I•-13.04; ''1%1.•37 :r :i1..P } t�
ISI _, �,. I c
0 1____
7_ L k1 , • ftz-t.. -+� ;/; _ __ 00
�( \9:�1t `� _14.04al",/,4/.:(j. II __1'•i___ 1.4y
s _1
7././//,,,-,,/
.%
��� `;.4.1, -44---//t
Ftvtir, l �ilvQ C 97245 5c2,�T, �_v-/.//. 'St'rZo.-_,D.
\,'E-
�
v 8,.. l p — ."2225 . .I_I:1u,
E • I 0._
5F- T Irac,�.
�
1
1----,,,....)1.46 1.0q-I R Ile' 0.7...3'
;>‘.,.Ch1 5 0_orc `t•/1:4'-'57
® DATE(MMlDDlYYYY)
ACORICI EVIDENCE OF PROPERTY INSURANCE 07/13/2016
THIS EVIDENCE OF PROPERTY INSURANCE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE
ADDTIONAL INEREST NAMED BELOW.THIS EVIDENCE OF PROPERTY INSURANCE DOES NOT AMMEND, EXTEND OR ALTER THE COVERAGE
AFFORDED BY THE POLICIES BELOW.
AGENCY PHONE 224 856 5542 COMPANY
JC INSURANCE AGENCY INC/ANCHOR INSURANCE GROUP GRANGE INSURANCE
104 TYLER CREEK PLAZA
ELGIN,IL 60123
FAX 224 856 5762 'E-MAIL JCISNEROS@JCISAGENCY.COM
(A1C,No.j: -- - - --- ---- -- -. _ -
CODE: SUB CODE:
AGENCY
CUSTOMER IDN:
INSURED LOAN NUMBER POLICY NUMBER
THEODORE KIRPACH 1724517
50 S GROVE AVE — —
ELGIN,IL 60120 EFFECTIVE DATE EXPIRATION DATE
_ CONTINUED UNTIL
01/18/2016 01/18/2017 I TERMINATED IF CHECKED
1__
THIS REPLACES PRIOR EVIDENCE DATED:
PROPERTY INFORMATION
LOCATION/DESCRIPTION
227 N PORTER ST
ELGIN,IL 60120
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
EVIDENCE OF PROPERTY INSURANCE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS
SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
COVERAGE INFORMATION
COVERAGE/PERILS/FORMS AMOUNT OF INSURANCE DEDUCTIBLE
---
A-COVERAGE DWELING $336,000 $336,000 $1,000
B-COVERAGE OTHER STRUCTURES $33,600 $33,600
D-COVERAGE LOSS OF RENTS $33,600 $33,600
L-COVERAGE PREMISES LIABILITY $300,000 $300,000
M-COVERAGE PREMISES MEDICAL EA PERSON $1,000 $1,000
M-COVERAGE PREMISES MEDICAL EA ACCIDENT $10,000 $10,000
U-COVERAGE EXCESS LIABILITY UMBRELLA $1,000,000 $1,000,000
REMARKS(Including Special Conditions)
THE CITY OF ELGIN IS LISTED AS ADDITIONAL INSURED TO THE POLICY ABOVE.
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO
MAIL_ 30 DAYS WRITTEN NOTICE TO THE ADDITIONAL INTEREST NAMED BELOW,BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION
OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES.
ADDITIONAL INTEREST
NAME AND ADDRESS I MORTGAGEE ! X'ADDITIONAL INSURED
CITY OF ELGIN
150 DEXTER CT J LOSS PAYEE
ELGIN,IL 60120 LOAN N 1/ f
AUTHORIZED REPRESS TATIVE �.
r r,
ACORD 27(2006/07) c ACORD Ci1ItPORATION 19 -2006.All rights reserved.
The ACORD name and logo are registered marks of CORD ii