18-110 Resolution No. 18-110
RESOLUTION
AUTHORIZING EXECUTION OF A LICENSE AGREEMENT WITH
BOYS AND GIRLS CLUB OF ELGIN FOR A COMMUNITY GARDEN
(355 Ann Street)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,
that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby
authorized and directed to execute a License Agreement on behalf of the City of Elgin with Boys
and Girls Club of Elgin for use of land as a community garden, a copy of which is attached hereto
and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: September 26, 2018
Adopted: September 26, 2018
Vote: Yeas: 8 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
LICENSE AGREEMENT FOR USE OF LAND
AS A COMMNITY GARDEN
This License Agreement (hereinafter the "Agreement") is made and entered into at Elgin,
Illinois this 26 day of September 2018, by and between the City of Elgin, an Illinois
municipal corporation (hereinafter the "the City") and Boys and Girls Club of Elgin, a not-for-
profit corporation organized and existing under the laws of the State of Illinois (hereinafter the
"Licensee").
Recitals
WHEREAS, the City is the owner of certain real property within the City of Elgin legally
described on Exhibit A, attached hereto and incorporated herein by this reference, said property
being commonly known as 355 Ann Street and by Kane County PIN 06-13-128-001 (hereinafter
referred as the "City Property"); and,
WHEREAS, Licensee is a not-for-profit corporation having an office at 355 Dundee
Avenue, and whose primary purpose is to enable all young people, especially those who need us
most, to reach their full potential as productive, caring responsible citizens and,
WHEREAS, Licensee desires to utilize the City Property for the establishment and
maintenance of a community garden on the City Property; and,
WHEREAS, the City has agreed to grant to Licensee a temporary and non-exclusive
personal privilege to use the City Property described above for the purpose of establishing and
maintaining said community garden, 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 temporary and non-exclusive
personal privilege and permission to enter upon the City Property for the purpose of
establishing and maintaining a community garden (hereinafter 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 City
Property, or any other easements, conditions, covenants or restrictions of record.
3. Term.
(a) Initial Term. This Agreement and the License granted to Licensee hereunder shall
commence as of the date of this Agreement set forth above and shall continue for three
(3) years, unless otherwise terminated in accordance with the terms of this Agreement
(the "Initial Term").
(b) Renewal Terms. Following the Initial Term of this Agreement, this Agreement may
be renewed for successive three (3) year terms, subject to mutual written agreement by
the parties hereto. The parties may elect to renew this Agreement in its current form or in
a modified form on such terms as they shall find mutually agreeable.
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 Property. The City
retains legal possession of the full boundaries of the City Property and this Agreement
merely grants to Licensee the personal privilege to use the City Property for the purposes
described herein for the term of this Agreement.
6. No Vested Right. Notwithstanding any expenditure of money, time and/or labor by
Licensee on or within the City Property, 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 City Property 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 and improvements:
Establishment and maintenance of a fenced community garden, including a
greenhouse and raised beds for growing vegetables and plants, making
improvements to the soil including bringing in top soil, mulch and compost, and
using the site as a teaching gardens for Boys and Girls Club members under the
supervision of Boys and Girls Club staff.
Licensee shall not have the right to expand or alter Licensee's use of City Property
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.
2
a. Recording of Notice of Termination. Upon expiration or 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 Licensee. In the event of the expiration or 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 City Property, nor any monetary damages of any
kind whatsoever.
10. Permanent Removal of Encroachments and Improvements Upon Termination. At such
time as this Agreement and the License herein granted to Licensee is terminated, either at
the expiration of its Initial Term, the expiration of any Renewal Term, or pursuant to
paragraph 9 of this Agreement, 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 Property. Any other provision of this Agreement to
the contrary notwithstanding, Licensee shall immediately remove, at its sole cost and
expense, any such improvements 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 Property, or in the event that the City determines
that any such improvements interfere with pedestrian or vehicular traffic, public utilities,
or constitute a safety hazard. Any replacement or repair of such improvements 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 Property, 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 City Property. 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, alternatively, if the insurance states that it is excess or prorated, it shall be
endorsed to be primary with respect to the City.
3
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 City Property 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.
Licensee shall design and maintain the community garden so as to prevent the vegetation
or any improvements from obscuring visibility between motorists, bicyclists and
pedestrians at intersections and pedestrian crossing areas. Licensee shall keep and
maintain the City Property free from all noxious weeds including, but not limited to,
ragweed, giant and common; Canada thistle, all varieties; perennial sow thistle; European
bindweed; hoary cress; leafy spurge; and Russian knapweed.
Licensee shall design and maintain the fence on City Property in accordance with
approved Fence Permit 17-51562 and accompanying documents, all of which are
attached hereto as Exhibit B.
Upon the issuance of a building permit, Licensee may install one (1) greenhouse,
including electrical service, in substantial conformance to that depicted within Exhibit C,
provided:
(a) the frame of the greenhouse is factory-finished white to match the color of the fence
described within Exhibit B;
(b) the size of the greenhouse does not exceed two hundred and forty (240) square feet;
(c) the height of the greenhouse does not exceed eight (8) feet, exclusive of the system
used to secure it to the ground;
(d) the greenhouse is located at least fifty (50) feet south of the Ann Street lot line and
five (5) feet from all other lot lines;
(e) the greenhouse complies with all applicable accessibility codes, including the
provision of ingress and egress to the existing city sidewalk along Ann Street; and
(f) the greenhouse is installed in accordance with manufacturer's specifications, which
must be submitted for review and approval with the application for building permit.
4
13. Water Service. The City shall allow the Licensee to run a water supply line and water
service connections from the City Property to the City's water main, the full and
complete cost of which shall be borne by the Licensee. The water consumed by the
Licensee on the City Property shall be measured by a separate water meter. The Licensee
shall be responsible for all water usage charges for the City Property. The provision and
supply of water shall comply with the City's water regulations and all specifications as
determined approved by the City.
14. Compliance with Law. Licensee shall adhere to and comply with all ordinances, laws,
rules and regulations that may pertain to or apply to the City Property 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 City Property 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. Without limiting the foregoing, Licensee shall comply
with all federal, state and local laws and regulations pertaining to the environment and/or
environmental protection. Licensee shall not store or discharge, or permit to be stored or
discharged, any hazardous or toxic chemicals or pollutants on or within the City Property.
15. 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 Property. 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 City Property. Such
indemnification shall include the City's reasonable attorney's fees incurred in
connection with any such loss, claim or suit.
5
The provisions of this paragraph shall survive any termination and/or expiration of this
Agreement.
16. 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.
17. 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 Manager To the Licensee:
City of Elgin Boys and Girls Club of Elgin
150 Dexter Court 355 Dundee Avenue
Elgin, IL 60120-5555 Elgin, IL. 60120
With a copy to: With a copy to
Corporation Counsel [INSERT NAME AND ADDRESS]
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.
18. 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.
19. 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.
6
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. Paragraph Headings. Paragraph headings are inserted for convenience only and in no
way limit or define the interpretation to be placed upon this Agreement.
26. Binding Agreement on Parties. This Agreement shall be binding on the parties hereto
and their respective successors and permitted assigns.
27. 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.
28. 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.
29. 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
writing herein or in a duly-authorized and executed amendment hereof.
7
30. Authority of the City. This Agreement is authorized pursuant to section 13.04.130 of the
Elgin Municipal Code, 1976 as amended.
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
Ia
By:
City Manager
ATTEST:
City Clerk
[INSERT NAME OF LICENSEE]
By:
Name: I
Its:
Attest:
8
EXHIBIT A
Plat of Survey Dated April 5, 2006 (One Page)
9
SCALE I .? flat of 5urvey 0
OF PROPERTY DESCRIBED AS:LOT 1 AND THE 10 FOOT ALLEY LYING EAST OF AND ADJOINING SAID LOT 1 IN THOMAS R.WELCH HEIRS'
SUBDIVISION OF LOT 11 OF P.J.KIMBALL SR'S ADDITION TO ELGIN,IN THE CITY OE ELGIN,KANE COUNTY,ILLINOIS.
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order No 26083
Ordered By,Victoria Hoogervorst STATE OF ILLINOIS
Attorney At law COUNTY OF KANE SS
Property Aaaress:366 Ann Street
Elgin,IL This is to certify that this plat and the survey on which it is based was made under my direction.
This professional service conforms to the carte t Illinois minimum standards for a boundary survey
DISTANCES ARE GIVEN IN FEET AND
DECIMAL PARTS THEREOF
O INDICATES IRON TAKE FWND Michael J.Morrissy,P.L.S.No,2943,11, MyUcen • n Nwemlxr Z..c.
INDICATES IRON STME SET .
+c-mac--"` INacATEeFENGNo MJM CONSULTING, INC.
IRDICATES CONCRCTt Ally discrepamy in measurements should be promptly rtported to sur tjor
loresplanotionorcontction. 40W580 ATCHISON DRIVE
PEAT NOT VALID WrT14OlTT EMBOSSED SEAL HAMPSHIRE, IL 60140-9005
TEL. (847) 888-8293
EXHIBIT B
Fence Permit No. 17-51562 and Site Plan Dated July 14,2017 (Three Pages)
10
City of Elgin
Community Development Engineering
150 Dexter Court, Elgin, IL 60120-5555 1900 Holmes Road, Elgin, IL 60123
Telephone (847)931-5920 Fax (847) 931-6790 Telephone(847)931-5955 Fax (847)931-5965
Application Number . . . . . 17-00051562 Date 7/14/17
Property Address . . . . . . 355 ANN ST
Parcel Number: 06-13-128-001 -
Application type description FENCES/ALL TYPES
Subdivision Name . . . . . . WELCH HEIR' S SUB.
Property Use ► . . . . . . . . DETACHED SINGLE FAMILY j
Property Zoning . . . . . . . AREA BUSINESS
Application valuation . . . . 0
Owner Contractor
------------------------ ------------------------
CITY OF ELGIN LAMP INC
150 DEXTER CT 460 N GROVE AVE
ELGIN IL 60120 ELGIN IL 60120
(847) 931 -6100 (847) 741 -7220
-------------_-_--------------------------------- ----------------------- 1
Permit . . . . FENCE
Additional desc
Permit Fee . . 65. 00 Plan Check Fee . 00
Issue Date . . . . 7/14/17 Valuation . . . . 0
Expiration Date 1 /10/18
Qty Unit Charge Per Extension
BASE FEE 65.00
----------------------------------------------------------------------------
Special Notes and Comments
OWNER IS RESPONSIBLE FOR ALL EASEMENTS
AND COVENANT RESTRICTIONS AND
UNDERSTANDS CITY OF ELGIN REQUIREMENTS;
1 . THE "GOOD" SIDE OF THE FENCE MUST `
FACE YOUR NEIGHBOR' S PROPERTY.
2 . THE FENCE MUST BE PAINTED OR STAINED
Semi/transparent stain is NOT permitted
in the historic district) . **
4 ' & 6 ' PRIVACY FENCE PER APPROVED PLAT
--------------------------------------------------------------------------- -
Fee summary Charged Paid Credited Due
Permit Fee Total 65. 00 . 00 . 00 65. 00
Plan Check Total . 00 . 00 .00 . 00
Grand Total 65. 00 . 00 . 00 65 . 00
By my signature below, I acknowledge that I have read,understand,and agree to abide by said terms and conditions.
This permit is issued with the to ms and conditions described on the reverse side of the permit card.
Owner/ /ontractor uthorized Agent
Print Name70y O cia
F
S'Ai-E 2� Plat of 5arvey M044
OF PROPERTY DESCRIBED AS:LOT 1 AND THE 10 FOOT ALLEY LYING EAST OF AND ADJOINING SAID LOT 1 IN THOMAS R.WELCH HEIRS'
SUBDIVISION OF LOT 11 OF P.J.KIMBALL SR'S ADDITION TO ELGIN,IN THE CITY CIE ELGIN,KANE COUNTY,ILLINOIS,
11-LC- T-a Le
3 S S k/`^i ST. Pl •1'eRr,.
FENCE CORNER NOT TO BE LOCATED ANY
CLOSER THAN 20'-0'FROM WHERE THE
ADJACENT DRIVEWAY AND SIDEWALK
4'TALL LE PICKET STYLE PVC FENCE,TYP.
WHITE FOOTINGS E BE 12"WIDE X 42" APPROX.LOCATION FOR DOUBLE SWING MEET PER DAMIR./C,Tr of- f L e r N
GATE-8'-0'WIDE OPENING
DEEP.APPROX.432 FEET OFFENCE.
FENCE ON THE WEST AND PARTIAL NORTH
SIDE WILL BE LOCATED ON TOP OF THE HILL �� Q
APPROX T-W TO SIDEWALK. j
X
J ,� Ize.c at„t
\ )355 ANN STREET) BUILDING HAS BEEN N
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APPROX 10-0'TO ` Y'
DEMOLISHED eI
SIDEWALK. Q.�
A(/ /•/ ,
w
J FENCE ALONG
THE EAST SIDE
�1 w �• TOBE
• APPROX 12' 'TO SIDEWALK AS S CLLOSE TO
PLACED
i../ J -0
r A
THE PROPERTY
7 LINE AS
1�>� hike eas e—•—- own qF. �`LD
1 �
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jLANDSCAPING TO BE V
TRIMMED BACK FOR
/ FENCE INSTALL A O
FENCE IN THESE LOCATIONS TO BE '^ s.S i*A '
LOCATED AS CLOSE AS POSSIBLE TO Y 1 s
EXISTING FENCE IN ADJACENT PROPERTY. 7 I i
•
CITY OF ELGIN \ Lir
Community Oeve feAd "• s Lca.c
Iopment r�•F4A5• -V.o 2.a 5" 4 <:> oa.+se-
I
JUL 142017
OVEN FENCE IN THIS LOCATION TO BE 6'-0"TALL
Signs �;`/_� .. PRIVACY FENCE.PROPERTY TO THE SOUTH IS
COMMERCIAL.APPROX.40 FEET OF FENCE.
Order No 26083
Ordered BY Victoria Hoogervorst STATE OF ILLINOIS
Attorney At law COUNTY OF KANE SS
PropenY xJd— 356 Ann Street
Elgin.IL This is to certify that this plat and the survey on which it is based was made under my direction
This professional service conforms to the corre t Illinois minimum standards for a boundary survey
DISTANCES ARE otVEH IN FEET AW1
DECIMAL PARTS THEREOF '
o Michael J Morrissy,P CS No,2943 My Lk nae a Nova" --
• i«duTca Iwo«eTAice seT
-. R— INOIGATCf I[NGMO /� /
. �.F a caweeaTe AIq dixrepanry in masuremenh slloolo beprole pth port rYryot MJ M CONSULTING, INC.
rt td to so
Lor eXptanaCwn or correction. 40W5BO ATCHISON DRIVE
PtrAT NOT VALID WfRgDT EMBOSSED SEAL HAMPSHIRE, IL 60 1 40-9005
TEL. (647) 868-8293
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ELGIN A
EXHIBIT C
Essex Greenhouse Image(One Page)
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ESSEX GREENHOUSE
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THE DEVON/MILLFORD IOft MODEL
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ESSEX GREENHOUSE
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