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16-130
Resolution No. 16-130 RESOLUTION AUTHORIZING THE RENEWAL AND EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT WITH FOREST PRESERVE DISTRICT OF KANE COUNTY FOR ELGIN SHORES PARK BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to renew and execute an Intergovernmental Agreement with Forest Preserve District of Kane County on behalf of the City of Elgin for Elgin Shores Park,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain,Mayor Presented: November 2,2016 Adopted: November 2, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk INTERGOVERNMENTAL AGREEMENT THIS INTERGOVERNMENTAL AGREEMENT(this "Agreement") is made and entered into as of the ,.31' day ofC 44/ 3x, , 2016, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City") and the FOREST PRESERVE DISTRICT OF KANE COUNTY, an Illinois forest preserve district (hereinafter referred to as the "District"). WITNESSETH: WHEREAS,Article 7, Section 10 of the constitution of the State of Illinois, 1970, authorize units of local government, including municipalities and forest preserve districts, to enter into contracts to exercise, combine or transfer powers or functions not prohibited to them by law or ordinance; and WHEREAS,the Intergovernmental Cooperation Act (5 ILCS 220/1 et seq.)authorizes units of local government of Illinois to exercise jointly with any other public agency within the State, including other units of local government, any power, privilege, or authority which may be exercised by a unit of local government individually and to enter into contracts for the performance of governmental services, activities and undertakings; and WHEREAS, the City is a home rule unit which may exercise any power, perform any function relating to its government and affairs; and WHEREAS, the City has previously licensed from the District the property known as the Elgin Shores Forest Preserve, such property being legally described on the depiction attached to Exhibit"A" attached hereto and incorporated herein by this reference (hereinafter referred to as the "Subject Property") and the District is the fee simple owner of the Subject Property; and WHEREAS, the City desires to license the Subject Property from the District and the District desires to license on an exclusive basis the Subject Property to the City to use the Subject Property as a public park with playing fields and walking paths and in all manners consistent with the Illinois, subject to the District's reservation of the right to grant easements as hereinafter provided and as provided in the use permit and license agreement for the Subject Property; and WHEREAS, in exchange for licensing the Subject Property to the City, the District desires to retain the right to grant public utility and drainage and similar easements to other entities across, upon and over the Subject Property; and WHEREAS, the various undertakings by the District in this Agreement relate to the government and affairs of the District; and WHEREAS, the various undertakings by the City in this Agreement relate to the government and affairs of the City. PacP,g,$1' NOW, THEREFORE, for and consideration of the mutual promises and undertakings set forth herein, and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals. The foregoing recitals to this Agreement are substantive and are hereby incorporated into the Agreement as though fully set forth herein. 2. Agreement to License.The District agrees to license to and the City agrees to license from the District the Subject Property according to the license agreement attached hereto as Exhibit A. 3. District to Reserve Right to Grant Easements. The City and District agree that in exchange for the license of the Subject Property to the District,the District shall retain the right to grant public utility and drainage and similar easements to other entities across, upon and over the Subject Property. The District shall notify the City in writing thirty(30)days prior to its intent to grant such easement rights to install utilities or other similar infrastructure pursuant to such easement. The parties shall cooperate with any grantee to whom such easement is granted,expressly permitting the use and exercise of the easement by such grantee,with the condition that any such grantee shall make every reasonable effort to minimize the impact on the use of the Subject Property by the City with respect to the installation of such public utilities on the Subject Property. In addition, the District agrees to require as a condition of any such grant that the grantee thereof shall restore any surface damage to the Subject Property after completion of any public utility or other installation, maintenance, repair or replacement work to its original or equal condition prior to such public utility or other easement work. 4. Notices. All notices herein required shall be in writing and shall be served on the parties at the following addresses: City: City of Elgin District: Attention: City Manager Forest Preserve District of Kane County 150 Dexter Court Attention: Executive Director Elgin, IL 60120-5555 1996 North Kirk Road, Suite 320 Geneva, IL 60134 With a copy to: William A. Cogley With a copy to: Gerald K. Hodge, Esq. Corporation Counsel City of Elgin Kinnally, Flaherty, Krentz & Loran, P.C. 150 Dexter Court 2114 Deerpath Road Elgin, IL 60120-5555 Aurora, IL 60506 The mailing of a notice by registered or certified mail, return receipt requested, or personal delivery by courier service shall be sufficient service. Notices may also be served on the attorneys for the parties by use of a facsimile machine with proof of transmission and a copy of the notice with proof of transmission being sent by regular mail on the date of transmission. 2 Pagket#+x.38 5. Interpretation.This Agreement shall be construed, and the rights and obligations of City and District hereunder, shall be determined in accordance with the laws of the State of Illinois without reference to its conflict of laws rules. 6. Failure to Enforce Provisions. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. 7. Amendments. This Agreement may be modified or amended only in writing signed by the parties hereto, or their permitted successor or assigns, as the case may be. 8. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties herein, all prior agreements and undertakings having been merged herein and extinguished hereby. 9. Joint and Collective Work Product. This Agreement is and shall be deemed and construed to be a joint and collective work product of the District and the City, and, as such,this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, and the terms or provisions contained herein. 10. Assignment.This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns.This Agreement and the obligations hereunder may not be assigned without the express written consent of each of the parties hereto. 11. Effective Date.The effective date of this Agreement shall be the date on which this Agreement is approved by the respective legislative bodies of the City and the District. IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first written above and the signatories hereto represent that they are duly authorized to execute the Agreement on behalf of their respective bodies. CITY OF ELGIN FOREST PRESERVE DISTRICT OF KANE COUNTY an Illinois municipal corporation cY\By:42‘1,717/,Z7 y� , David K tai , Mayor Mike Kenyon, Presi• -nt ATTEST: ATTEST: ,i54" .41100 ille■■•■ City Cler Secretary b". . -r Date: November 2, 2016. 3 Pt Pgy 39, USE PERMIT AND LICENSE AGREEMENT KNOW ALL MEN BY THESE PRESENTS that the undersigned, FOREST PRESERVE DISTRICT OF KANE COUNTY(hereinafter"FPDKC"),for and in consideration of One Dollar($1.00)and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby permit the City of Elgin, a municipal corporation, (hereinafter called "CITY") the exclusive, (subject to the FPDKC's reservation of the right to grant easements as hereinafter provided) right, permission and authority to use, operate and maintain the park and athletic fields located at the Elgin Shores Forest Preserve which more particularly depicted on Exhibit A (the "Premises"), which is attached hereto and incorporated herein (hereinafter referred to alternatively as the "City License", "License", "Use Permit and License Agreement" or "Agreement"), which FPDKC warrants that FPDKC owns in fee simple. FPDKC further grants CITY the exclusive, (subject to the FPDKC's reservation of the right to grant easements as hereinafter provided) use of the fields for the purpose of CITY recreation leagues,together with the right of ingress and egress to and from the Premises,during the regular hours of the forest preserve in which it is located for the duration of its scheduled activities thereon, for itself, its volunteers, agents, players and audience for all other reasonable purposes convenient or incidental to the exercise by CITY of the rights herein granted for the term of this Agreement. For these purposes, the CITY shall have the first right and priority of use of the Premises, but FPDKC hereby reserves and shall have the right to grant utility easements, drainage easements and the like without the approval of the CITY, specifically including a grant of a pending force main sewer easement to Fox River Water Reclamation District over a portion of the Premises located near and adjoining the Fox River. The parties shall cooperate with any grantee to whom such easement is granted, expressly permitting the use and exercise of the easement by such grantee, with the condition that any such grantee shall make every reasonable effort to minimize the impact on the use of the Premises by the city with respect to the installation of such public utilities on the Premises. In addition, the FPDKC agrees to require a condition of any such grant that the grantee thereof shall restore any surface damage and any damage to any improvements and facilities on the Premises after completion of any public utility or other installation, maintenance, repair or replacement work to its original or equal condition prior to such public utility or other easement work. The Aforesaid Permit and exclusive license are granted as and from the date hereof for a term of twenty(20) years, and on the following terms and conditions precedent and continuing for the term of this Agreement,which terms and conditions are hereby mutually covenanted and agreed to, by and between FPDKC and CITY. FIRST. FPDKC covenants with CITY that it is the lawful fee simple owner of the aforesaid lands and that it has the right and authority to make this license and permit grant. 1 Packet Pg.40 SECOND. The CITY agrees to the following: 1) To be responsible for the maintenance and repairs of the Premises, including the proper maintenance and upkeep of the playing fields and paths; and 2) To be responsible for the maintenance of safe and sanitary conditions of the Premises, generally; and 3) The storage of any maintenance equipment and other supplies at the Premises is solely at the risk of the CITY or other leagues or similar users permitted by it to use the Premises. THIRD. This Use Permit and License Agreement concerning the Premises and the CITY License created hereby are granted from the date hereof, and shall expire at the end of twenty (20) years from the date of this Agreement and shall be subject to the following terms and conditions precedent and continuing for the term of this Agreement, which terms and conditions are hereby mutually covenanted and agreed to, by and between FPDKC and CITY. FOURTH. CITY, its assigns, volunteers, agents, representatives, employees and contractors agree to pay for the cost of and hold FPDKC harmless from any and all losses of or damages to property,including environmental and economic losses,or injuries to or death of any person resulting from CITY's activity or use on the Premises, or any property affected by such activity or use by CITY, its assigns, employees, volunteers, contractors, affiliates, subsidiaries or successors. CITY shall indemnify and save harmless FPDKC, its officers and employees, from all claims, litigation and liability asserted against them or any of them, and any costs and attorney's fees incidental thereto, arising from CITY's action or inaction which results in injury to or death of any person or persons whomsoever, or damage to any property, caused by, connected with, or in any way attributable to,the rights herein granted or CITY's failure to comply with any of the terms or conditions hereof. CITY shall pay for the defense of FPDKC, its officers and employees in any such litigation, with FPDKC having the right to designate its own local counsel. FIFTH. CITY agrees that written approval shall be secured from the FPDKC prior to undertaking specific maintenance or renovation of the Premises. SIXTH. CITY agrees that there shall be no solicitation permitted on the Premises by any entity other than in conjunction with the sale of concessions or similar refreshments sold to attendees of events where it is intended to be consumed on premises during an event scheduled to occur. SEVENTH. The privileges herein granted are subject to the paramount rights of the FPDKC at the forest preserve in which the Premises is located, and FPDKC shall not be liable to CITY for damage to the property of CITY due to the installation, operation, maintenance or removal of any present or future facilities of FPDKC or any easement holder. 2 Pt6ic`ko!!4.4i, EIGHTH. This License shall not in any manner or to any extent limit or restrict the right of FPDKC to grant additional easements or licenses or rights over, along, under and across the Premises herein for other purposes, subject to the rights of this license including the CITY's exclusive, priority use and possession of the Premises during its scheduled activities. NINTH. FPDKC shall have the right to perform inspections of facilities and grounds with a 5-day notice. Notice of required maintenance or improvements to facilities and/or grounds with reasonable deadlines for compliance will be provided to the CITY in writing. TENTH. CITY covenants and agrees that it will not permit or suffer any lien to be put upon or arise or accrue against said Premises in favor of any person or persons, individual or corporate,furnishing either labor or material in any work herein proposed, and CITY further covenants and agrees to hold FPDKC and said Premises free from any and all liens or rights or claims of lien which may or might arise or accrue under or be based upon any mechanic's lien law, so called, of the State of Illinois, now in force or hereafter to be enacted. All contracts and agreements that may be made by CITY relating to any work herein proposed, shall expressly state that the interest of FPDKC in and to said Premises shall be wholly free from and not subject to any lien or claim of any contractor, subcontractor, mechanic, material man or laborer, whether based upon any law or regulation of the State of Illinois, or any other authority, now in force or hereafter to be enacted, and CITY also hereby covenants and agrees that it will not enter into any contract for such work which shall not in express terms contain the aforesaid provision. ELEVENTH. CITY agrees to maintain during the term of this License or any extension thereof, at CITY's cost, a policy or policies of insurance issued by good and responsible insurance companies and in a form satisfactory to FPDKC as follows: 1. Worker's Compensation Insurance Policy: a) Coverage A:To pay promptly when due all compensation and other benefits required of the insured by the worker's compensation law. b) Coverage B: Employers Liability-To pay on behalf of the insured with limits not less than $75,000 each accident/occurrence all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom. 2. Comprehensive General Liability Policy or Policies with limits not less than the combined single limit of$1,000,000 for bodily injuries to or death of one or more persons and/or property damage sustained by one or more organizations as a result of any one occurrence, which policy or policies shall not exclude property of FPDKC. FPDKC shall be added as a Named Additional Insured under such policy or policies. Bodily injury means bodily injury, death, sickness, or disease sustained by any person which occurs during the polity period, including death, at any time resulting therefrom. Property damage means (1) physical injury to or 3 Pact P 41 destruction of tangible property which occurs during the policy period, including loss of the use thereof at any time resulting therefrom, or(2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. There shall be furnished to FPDKC each year a Certificate of Insurance issued pursuant to the requirements contained in subparagraphs(1) and (2) of this paragraph ELEVENTH. Insurance coverage as required herein in subparagraphs(1) and (2) shall be kept in force during the term of this license. On all policies of insurance, FPDKC shall be listed as a named additional insured. TWELFTH. NOTICE. Any notice required or permitted herein shall be in writing and delivered personally or by U.S. mail to the address or addresses or persons set forth below: City: District: City of Elgin Forest Preserve District of Kane County Attention: City Manager Attention: Executive Director 150 Dexter Court 1996 North Kirk Road, Suite 320 Elgin, IL 60120-5555 Geneva, IL 60134 With a copy to: With a copy to: William A. Cogley Gerald K. Hodge, Esq. Corporation Counsel City of Elgin Kinnally, Flaherty, Krentz& Loran, P.C. 150 Dexter Court 2114 Deerpath Road Elgin, IL 60120-5555 Aurora, IL 60506 THIRTEENTH. This Agreement is not assignable or transferable. FOURTEENTH. CITY shall pay all costs of this transaction, including recording fees, any tax,fee levy or cost associated with this transaction or any use contemplated by such transaction now or in the future. FIFTEENTH. This Use Permit and License Agreement is subject to the terms and conditions of the original deed of conveyance of the property and all other conditions,covenants and restrictions of record, each as disclosed by each party to the other party. SIXTEENTH. It is agreed and understood by the parties hereto that no special duties or obligations to any third party are intended nor shall be deemed or construed to be created by this Agreement. It is further agreed and understood that this Agreement is not intended nor shall be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the CITY and/or the FPDKC and/or their officials, officers, employees and/or agents pursuant to the Local Governmental and Governmental Employees Tort Immunity Act at 745 ILCS 10/1-101 et seq., as amended, and/or otherwise provided by law, it being agreed that all of the civil immunities set forth in such Act, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might asserted against the CITY and/or the FPDKC and/or their respective officials, officers, employees and/or 4 PPg43 agents as a result of this Agreement, the CITY'S use, operation and/or maintenance of the Premises or any actions of the parties pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no third party beneficiaries are intended or shall be construed to be created by the provisions of this Agreement. The provisions of this section shall survive any expiration and/or termination of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this document this 13th day of September , 2016. CITY OF ELGIN FOREST PRESERVE DISTRICT ) OF KANE COUNTY BY: i Z` ��(C'I,lafi David Ifaptai ayor BY: 4 Michael J. Kenyo Presiden Attest: Attest: 4111,1P City Clerk Secre ary 5 P P9 4► EXHIBIT A DEPICTION OF PREMISES LOCATED AT ELGIN SHORES FOREST PRESERVE ELGIN, ILLINOIS 6 POO 45 �} , , ;� , - 4 �...._--_r V -4_.�_x.-... ti_•r- I- ; t -r--� I 1 +v • f { Ai ' t s ' -�' Y- y s. P fir s.,. ■ r ''... ' ' - " ''‘''`‘-', :---i,..%. 4 --'*-...41,4.. a. I ;1^}; I' >3{3 24, iii r t f'V• w 7,., 1- •-.-I.. . • , ' ! .s . i' t•, 11_11? ac ,k l ,..t..',",f I • t F c : : F ,C'Al i , fa(. . A Y r 1titN ■„Ls ��*. ( 4 t. 1 _ t t.13 • s Ray L'i,t,f. i1 t.f,,,il —41 . ,4‘r: u- ' • A. ,, . 4 , y FJ Ih Iri. L ( Ift:,1 C.F. a1A-rr I' } Ii:L r. ILur .)I&. ST IL O•F IL1 : I .i7t',ARf140141 L LLIL- -PO L'1lK :_m,'1 t. ' .. 30 AFf v-L3Lq 1'i) B4 X 1916.1 f pfZINGFILLO L. 6i'9-4 — — a 8rRIsvGF!Err} i1_ tfi Lt, _ _ _ ', a h f Zi P — r t ti, a i I _ 1 SL,9■E 9 -?, ■ 4.7 0 I.. __ __ 1 v. 4 •.w 1J t+w.r ELGIN SHORES PARK ~f Packet Pg.46 Client#:83688 CITYELG2 ACORDDATE(MMIDD/YYYI') � CERTIFICATE OF LIABILITY INSURANCE 10/14/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Mackey Team PHONE 312 595-6200 FAx (NC,No,Ext): (A/C,No): Mesirow Insurance Services E-MAIL ADDRESS: 353 N.Clark Street INSURER(S)AFFORDING COVERAGE NAIC# Chicago,IL 60654 INSURER A:Travelers Indemnity Company 25658 INSURED INSURER B:Safety National Casualty Corp 15105 City of Elgin INSURER C: 150 Dexter Court INSURER D: Elgin,IL 60120 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT 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 CERTIFICATE 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. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LTR INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY ZLP21 N35819 10/01/2016 10/01/2017 PEACH OCCURRENCE $2,000,000 CLAIMS-MADE X OCCUR PREMISES(Ea oguErience) $1,000,000 MED EXP(Any one person) $ PERSONAL BADVINJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $3,000,000 PRO- POLICY JECT LOC PRODUCTS-COMP/OP AGG $3,000,000 OTHER: $ A AUTOMOBILE LIABILITY 8109160P901 10/01/2016 10/01/2017 COMBINED 1 000,000 (Ea aaidenq SINGLE LIMIT X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS NON OWNED PROPERTY DAMAGE $ X HIRED AUTOS X AUTOS (Per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED , RETENTION$ $ B WORKERS COMPENSATION SP4053869 10/01/2016 10/01/2017 X SPER TUTE I 12r- AND EMPLOYERS'LIABILITY TA Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? N N I A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached If more space is required) RE:Agreement dated 11-12-96 for the use of property known as the 50 strip of property adjacent and parallel to the Fox River for special use as a river nature walk License Agreement dated 3-13-07 for the Burnidge and Eagles Club Property License Agreement 3-13-07 for the Jack Cook Regional Park Intergovernmental Agreement for Elgin Shores Forest Preserve for the period 9113/2016-2036 (See Attached Descriptions) CERTIFICATE HOLDER CANCELLATION Forest Preserve District of Kane SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN County ACCORDANCE WITH THE POLICY PROVISIONS. Attn:John Goreth 1996 S.Kirk Road;Suite 320 AUTHORIZED REPRESENTATIVE Geneva,IL 60134 194 ©1988-2014 ACORD CORPORATION.All rights reserved. ACORD 25(2014/01) 1 of 2 The ACORD name and logo are registered marks of ACORD #S2185222/M2177550 MPX • DESCRIPTIONS (Continued from Page 1) Forest Preserve District of Kane County is listed as an Additional Insured,with respects to General Liability,where required by written contract with the Named Insured. SAGITTA 25.3(2014/01) 2 of 2 #S2185222/M2177550