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HomeMy WebLinkAboutRes 21-15 06/02/2015 Authorizing a License Agreement Between VOMP and Lake Briarwood H/O AssociationRESOLUTION NO. 21-15 A RESOLUTION AUTHORIZING A LICENSE AGREEMENT BETWEEN THE VILLAGE OF MOUNT PROSPECT AND THE LAKE BRIARWOOD HOMEOWNERS ASSOCIATION WHEREAS, this License Agreement (the "Agreement) is made and entered into by and between the Village of Mount Prospect, a home rule municipal corporation (the "Village"); and Lake Briarwood Homeowners Association (the "Licensee); and WHEREAS, the Licensee desires to improve the landscaping at the front entryway into the subdivision at or around 1803-1843 West Algonquin Road, Mount Prospect, Illinois "Landscaping Area"; and WHEREAS, the Landscaping Area includes a public right-of-way owned and controlled by the Village; and WHEREAS, the Village and the Licensee have determined that is in their best interest to enter into an Agreement that will promote and protect the interests of both the Village of Mount Prospect and the Lake Briarwood Homeowners Association. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS, PURSUANT TO ITS HOME RULE POWERS: SECTION ONE: That the Board of Trustees of the Village of Mount Prospect do hereby authorize the Mayor to execute the License agreement with Lake Briarwood Homeowners Association, a copy of which is attached and incorporated into this resolution as Exhibit A. SECTION TWO: That this Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. AYES: Hoefert, Matuszak, Polit, Rogers, Saccotelli, Zadel NAYS: None ABSENT: None PASSED and APPROVED this 2nd day of June, 2015 Arlene A. Juracek Mayor ATTEST: M. Lisa Angell Village Clerk LICENSE AGREEMENT FOR THE USE OF A PUBLIC RIGHT-OF-WAY This License Agreement (the "Agreement") has been entered into by and between the Village of Mount Prospect, an Illinois home rule municipal corporation (the "Village" or "Licensor") and the Lake Briarwood Homeowners Association (the "Licensee") (collectively the "Parties") in regard to the following: WHEREAS, the Homeowners Association desires to improve the landscaping at the front entryway into the sub -division at or around 1803-1843 West Algonquin Road, Mount Prospect, Illinois 60056 (the "Landscaping Area") (See Group Exhibit A); and WHEREAS, the Landscaping Area includes a public right-of-way owned and controlled by the Village; and WHEREAS, the Parties desire to establish an Agreement that will promote and protect the interests of both the Homeowners Association and the Village and its citizens; and WHEREAS, the Agreement is required by the Village and is a necessary inducement for the Village to allow the use of any public right-of-way. NOW, THEREFORE, the Village grants the Licensee a license to improve and maintain the Landscaping Area, as hereinafter described, in accordance with the following terms and conditions. Section 1. Landscaping Plans Approval. The Licensee shall submit to the appropriate Village employees and officials its plans for improvements it seeks for the Landscaping Area. The Licensee agrees that it will make any changes to its landscaping plan required by the Village. Section 2. Term. This License shall be for a three (3) year period begirming at the date of final Agreement execution. The License is subject to termination as hereafter provided. The Parties shall determine no later than sixty (60) clays prior to the end of the License period whether or not to extend the License and the length o l; such extension. Section 3. Condition of Premises. Licensee accepts the Landscaping Area in its existing condition as of the effective date of this Agreement. Licensee acknowledges that it has inspected the licensed public right-of-way and acknowledges that it is in good condition. The Licensor makes no representation or warranty with respect to the condition of the Landscaping Area. Licensee acknowledges that the Licensor has made no representations or promises to repair, alter or otherwise improve the condition of the Landscaping Area. 1 Section 4. Use. Compliance with Applicable Laws and Conditions. A. Licensee shall be permitted to use the Landscaping Area for the installation of its landscaping improvements as approved by the Village. B. Licensee's use of the Landscaping Area is contingent upon its continuing compliance with this Agreement and all regulations, ordinances, requirements and laws of all Village, state, county and federal authorities now in force, or that may hereafter be enacted, pertaining to public right-of-way use and the Landscaping Area, all at the Licensee's own cost and expense. C. License agrees to give written notice to the Village of any damages caused to the Landscaping Area or of any claims, demands, lawsuits received by the Licensee relative to the Landscaping Area or the landscaping improvements and its components. The notice shall be delivered to the Village within twenty-four (24) hours of Licensee or its employees or agents learning of such damage or receiving such claims, demands or lawsuits. Section 5. Care. Maintenance and Restoration of Premises, A. Licensee shall, at its own expense and at all times, be responsible for maintaining the Landscaping Area in good condition. The determination of good condition shall be in the sole discretion of the Village's Director of Public Works. Licensee agrees that upon written notice of a failure to maintain the Landscaping Area in good condition, that the Licensee shall have five (5) business days in which to remedy such insufficiency. Upon a failure to remedy such insufficiency within the five business day period to the satisfaction of the Village, this Agreement may be immediately terminated by the Village Manager. B. Upon termination of this Agreement or completion of the Licensee's use of the Landscaping Area under this Agreement, the Licensee, at the Village's request, shall at its own cost and expense return the Landscaping Area to the same condition it was immediately prior to the execution of this Agreement and the installation of the landscaping improvements. The Village may direct Licensee to make such repairs and restorations as the Village deems necessary to so restore the Landscaping Area to its previous condition. C. Whenever Licensee is required to restore the Landscaping Area to its previous condition, such restoration shall be completed within thirty (30) days of notice of such requirement. In the event that Licensee fails to do so within that time period, the Village may cause such restoration to be completed and Licensee shall be subject to liquidated damages in the amount of two (2) times the costs paid by the Village, to cover the Village's actual costs, including its administrative costs. Such costs may be recovered by recording a lien against the Homeowners Association property, or as otherwise provided by law. 2 Section 6. Interference. Licensee represents and warrants that its use of the Landscaping Area shall not interfere in any way with any lawful use of the remaining public right-of-way. Licensee agrees that upon written notice of any interference with the lawful use of the remaining public right-of-way, that the Licensee shall have seventy-two (72) hours in which to remedy the problem. Upon a failure to remedy such problem that interferes with the lawful use of the remaining public right-of-way within the seventy-two (72) hour period to the satisfaction of the Village, this Agreement may be immediately terminated by the Village Manager. Section 7. Excavation. In the event that the Village is required to excavate in the Landscaping Area to make necessary repairs to utilities located under the Landscaping Area, the Village will restore the excavated area to grade, but it will not be responsible for restoring the Landscaping Area to its pre -excavation condition. The Parties agree that the Village will not be liable for damages to Licensee's landscaping improvements in the Landscaping Area caused by any excavations required for utility repairs. Section 8. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of the Village. In the event of Licensee's unauthorized assignment, this Agreement shall terminate immediately. Section 9. Entry and Inspection. Licensee shall permit the Village and the Village's employees and agents to enter upon the Landscaping Area at any time with or without notice, for the purpose of inspecting the Landscaping Area for compliance with the terms of this Agreement. Section 10. Release, Hold Harmless and Indemnification. Licensee agrees as follows: A. Release Of Claims: Licensee agrees to waive and relinquish any and all claims, demands or causes of action of any kind, including, but not limited to injury, death, damages, or economic and non -economic damages or losses, that it or its members, officers, employees, volunteers, and agents may have against the Village and its officers, appointed and elected officials, president and trustees, employees, agents, attorneys, engineers, and volunteers arising out of, connected with, or in any way associated with the Landscaping Area, the landscaping improvements in the Landscaping Area or this Agreement. B. Risk Of Injury or Damage: Licensee assumes the full risk of injuries, death, damages or losses of any kind, which it or its employees, contractors or members of the public may sustain in any way in, on or about the Landscaping Area or the landscaping improvements in the Landscaping Area. C. Indemnity and Defense: Licensee agrees to protect, indemnify, save and hold forever harmless and defend the Village and its officers, appointed and elected officials, president and trustees, employees, agents, attorneys, engineers, and K volunteers from and against any and all liabilities, obligations, claims, damages of any kind, penalties, causes of action, costs and expenses brought by any person, including Licensee and its members, officers, officials, employees, contractors, subcontractors, volunteers and agents, arising out of, connected with, or in any way associated with the approval, existence or use of the Landscaping Area, the landscaping improvements in the Landscaping Area or any provision or section of this Agreement. Section 11. Insurance. During the term of this Agreement, Licensee agrees to have the Village and its officers, appointed and elected officials, president and trustees, employees, attorneys, engineers, volunteers and agents named as additional insureds on its insurance policies related to the Landscaping Area and the landscaping improvements installed in the Landscaping Area. Licensee shall provide the following types of insurance, written on the comprehensive form and as an "occurrence" policy, in not less than the following amounts: a. Comprehensive General Liability: Limit/ Limit/ Type Insurance: Each Occurrence Aggregate Bodily Injury $1,000,000 $1,000,000 Property Damage $1,000,000 $1,000,000 Contractual Insurance $1,000,000 $1,000,000 b. Workers' Compensation — Statutory C. Employer Liability: limits of not less than $1,000,000 per accident. Licensee shall provide the Village with satisfactory proof of the above insurance requirements in the form of a certificate executed by an insurer with no less than an A rating by the most recent "AM Best Insurance Rating Guide." The Certificates shall list the Village and its officers, appointed and elected officials, president and trustees, employees, attorneys, engineers, volunteers and agents, as additional insureds on all required insurance policies. The insurance coverage of Licensee shall be primary to the Village's own insurance. The Certificate shall provide for a thirty (30) day written notice to the Village in the event of cancellation or material change of coverage. Section 12. Alterations. Licensee shall not, without first obtaining the written consent of the Village, make any alterations to the Landscaping Area beyond those presented in the landscaping plans approved by the Village. Section 13. Default. Each of the following acts or omissions of Licensee or occurrences shall constitute an "Event of Default": a. Failure or refusal by Licensee to comply with any of the obligations of Licensee set forth in this Agreement or the Village Municipal Code or other Village regulations, including failure to pay any fee or charge owed to the Village when due; or 4 b. Termination of Homeowners Association's license. Section 14. VillaLFe's Remedies on Default. If any Event of Default occurs, the Village shall give Licensee notice of such default and if Licensee does not cure any such default within seven (7) days after the giving of such notice (or if such default is of such nature that it cannot be completely cured within such period, if Licensee does not commence such curing within seven (7) days and thereafter proceeds with reasonable diligence and in good faith to cure such), then the Village may terminate this Agreement. Upon termination of this Agreement, Licensee shall quit and surrender the Landscaping Area to the Village and restore the Landscaping Area to its condition as required by Section 5. Where other provisions of this Agreement call for a different notice period or for an immediate termination of the License under certain specified circumstance, the time limitations in those provisions shall control over this Section. Section 15. Non -Waiver. Except as otherwise expressly stated in this Agreement, the duties and obligations imposed by this Agreement and the rights and remedies available hereunder, shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available at law or in equity. Failure by the Village to insist on strict performance of any of the conditions, covenants, terms or provisions of this Agreement or to exercise any of its rights hereunder shall not waive such rights, but the Village shall have the right to enforce the terms and conditions of this Agreement at any time and take such action as might be lawful or authorized hereunder, either in law or equity. Section 16. Attorney's Fees. In case suit should be brought by the Village for recovery of the Landscaping Area, enforcement of the terms of this Agreement or because of any act, which may arise out of the possession of the Landscaping Area, the Village shall be entitled to all litigation costs incurred in connection with such action, including reasonable attorneys' fees and expenses and consultant and witness fees and expenses. Section 17. Notices. Any notice which either party may or is required to give shall be in writing and given by mailing the same, by United States Registered or Certified Mail, postage prepaid, to Labe Briarwood Homeowners Association, c/o Traci Peters, Agetit, 7 Oakcrest Drive, Pekin, Illinois 61554 or to the Village of Mount Prospect, 50 S. Emerson Street, Attention Village Manager, Mount Prospect, Illinois 60056, or at such other places as may be designated by the respective parties from time to time. Notice shall be deemed given when received, as evidenced by receipt or refusal, as applicable. Section 18. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Section 19. Right to Terminate. Notwithstanding any other provision authorizing termination, the Village may terminate this Agreement at any time and for any reason upon 5 ninety (90) days written notice to Licensee or immediately in the event that the Village, in its sole discretion, determines that the health, welfare and safety of the public warrants revocation. Section 20. Venue. The parties agree that for the purpose of any litigation relative to this Agreement and its enforcement, venue shall be in the Circuit Court of Cook County, Illinois and the parties consent to the in nersonam jurisdiction of said Court for any such action or proceeding. This Agreement, and all questions of interpretation, construction and enforcement hereof, and all controversies hereunder, shall be governed by the applicable statutory and common law of the State of Illinois. Section 21. Complete Defense. It is expressly understood and agreed by the parties that this Agreement may be pleaded by the Village as a complete defense to, and in bar of, any and all claims or causes of action of any kind brought, maintained or conducted by the Licensee or by a third parry in connection with or on account of any of the matters set forth in this Agreement. The parties agree that this Agreement shall be admissible in evidence in any action in which the terms of this Agreement are sought to be enforced. Section 22. Authority to Bind. The parties warrant and represent that the execution, delivery of, and performance under this Agreement is pursuant to authority, validly and duly conferred upon the parties and the signatories hereto. Section 23. Effective Date: This Agreement shall become effective upon the date of execution by the Village President. Section 24. Successors and Assigns. All obligations of the Parties shall be binding upon, and all rights of said Parties hereby shall insure to the benefit of, the successors and permitted assigns of the Parties. Section 25. Counterparts: This Agreement may be signed in counterparts, and each of such fully executed counterparts shall be deemed an original of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this instrument as of this day o, 2015. VILLAGE OF MOUNT PROSPECT: LICEN E: By:} . -� Arlene A. Jurace, illage President Les kent, Preside f. Lake Briarwood Homeowners Association Date; j. ,-,+1 2015 Attest: Lisa Angell, Villag Clerk Date:] -I , 2015 r - 2 Group Exhibit "A" Map of Landscaping Area and Site Plan (attached)