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S-1033 - 02/11/2003 - ZONING - OrdinancesORDINANCE 2003- ZO- V- EX1 -S- 1033 AN ORDINANCE GRANTING A VARIATION FROM THE PROVISIONS OF SECTION 13 -3 -6 OF THE VILLAGE CODE OF THE VILLAGE OF OAK BROOK RELATIVE TO FENCES AND APPROVING A LICENSE AGREEMENT (Oak Brook Club Drive) WHEREAS, an application has been filed requesting a variation from the provisions of Section 13 -3 -6 of the Village Code of the Village of Oak Brook to permit the replacement of an existing six foot high stockade fence with similar stockade fence around the perimeter of the Oak Brook Club Subdivision, and WHEREAS, a public hearing of said application has been conducted by the Zoning Board of Appeals of the Village on September 3, 2002 pursuant to due and appropriate legal notice; and WHEREAS, the Zoning Board of Appeals has recommended that the requested variation be granted, and WHEREAS, subsequently a plat of survey was prepared which revealed that the existing fence encroaches upon the Village right -of -way of Spring Road for a distance of approximately 210 feet with said encroachment not exceeding 12 65 feet at its widest point, and WHEREAS, a license agreement (hereby attached) has been prepared which provides that the Oak Brook Club will remove the fence within 90 days if requested to do so by the Village of Oak Brook; and WHEREAS, the corporate authorities of the Village of Oak Brook deem the passage of this ordinance to be in the best interest and in furtherance of the general welfare of the Village of Oak Brook; NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows - Section 1 That the provisions of the preamble hereinabove set forth are hereby adopted as though fully set forth herein Section 2 That a variation is hereby granted from the provisions of Section 13 -3 -6 of the Village Code of the Village of Oak Brook so as to allow the reconstruction of an existing six -foot high, solid wood stockade fence along the perimeter of the existing fence Section 3 This ordinance is limited and restricted to the property located at northwest corner of 16" Street and Spring Road, Oak Brook, Illinois, which property is legally described as follows. All of Lots 1, 2, 3, 4, and 5 in the Oak Brook Club Subdivision, being a subdivision in the Northwest Quarter of Section 23, Township 39 North, Range 11, East of the Third Principal Meridian, according to the plat thereof recorded February 7, 1973, as Document Number R73- 7036, in DuPage County, Illinois, except the property as defined and described in the certain Declaration of Condominium Ownership and of Easements, Restrictions and Covenants, dated September 15, 1970, relating to the Oak Brook Clubdominium West, recorded in DuPage County, Illinois as Document Number R70- 33423, and except the property as defined and described in the certain Declaration of Condominium and of Easements, Restrictions and Covenants, dated July 30, 1972, relating to the Oak Brook Clubdominium Three, recorded in DuPage County, Illinois, as Document Number R72- 45509, and except the property as defined and described in the certain Declaration of Condominium and of Easements, Restrictions and Covenants, dated June 4, 1973, relating to the Oak Brook Clubdominium Ordinance 2003- ZO- V- EX1 -S- 1033 Variation Relative to Fences Page 2 Four, recorded in DuPage County, Illinois, as Document No R73- 32738, and except the property as defined and described in the certain Declaration of Condominium and of Easements, Restrictions and Covenants, dated April 4, 1974, relating to the Oak Brook Clubdominium Six, recorded in DuPage County, Illinois, as Document No R74- 17562, and except the property as defined and described in the certain Declaration of Condominium and of Easements, Restrictions and Covenants, dated November 13,1975, relating to the Oak Brook Clubdominium Five, recorded in DuPage County, Illinois as Document No R75- 63209, all in DuPage County, Illinois Permanent Index Number 06 -23- 109 -004 Section 4 That the Village Board does hereby approve a License Agreement with the Oak Brook Club to allow the maintenance of a fence on the Spring Road right -of -way subject to the terms and provisions of the license attached hereto and incorporated herein Section 5 That the Village President and Village Clerk are hereby authorized and directed to execute a license agreement with the Oak Brook Club in substantial conformity with the form of license agreement which is attached. Section 6- That this ordinance shall be in full force and effect from and after passage and approval pursuant to law. Ayes- Nays PASSED THIS llthday of February, 2003 Trustees Aktipis, Caleel, Korin, Miologos and Savino None Absent. Trustee Craig n' Nan e D THIS 11th day of February, 2003 . , M Village Clerk 53 d as to Form / 9 G Village Attorney Published Date Paper Not Published XX LICENSE AGREEMENT This License Agreement is made and entered into as of this 11th day of February , 2003, by and between the Village of Oak Brook, an Illinois municipal corporation (,,Village" or ,Licensor,,) and the Oak Brook Club, Inc. a /k/a Oak Brook Club Community Area Trust, a residential condominium development and an Illinois not for profit corporation (,,Club,, or ,,Licenseel. The following recitals of fact are a material part of this License Agreement: A. The Village owns and maintains a certain road and right of way in the Village commonly referred to as Spring Road; said Spring Road runs north and south on the east side of the Village. B. The Village and the Club share a common property line along the west right of way line of Spring Road, beginning at a point approximately 310 linear feet north of the intersection of Spring Road and 16th Street and thence continuing northerly for approximately 837 feet (the ,Common Property Line,,). C. The Club, a gated residential condominium development has been surrounded by a fence since its inception in the early 1970's and the Club has maintained a certain wood stockade fence approximately six (6) feet high, a certain portion of which is along the Common Property Line. D. Approximately 210 feet of the existing fence encroaches on the right of way of Spring Road, with said encroachment not exceeding 12.65 feet at its widest point and, for the most part, encroaching to a much lesser distance as depicted on aplat of survey of The Oak Brook Club property by Gremley & Biedermann, dated August 1, 2002, attached hereto and made a part hereof as Exhibit A. E. In order to preserve existing mature trees, bushes and landscaping which would be destroyed by moving the fence to a point entirely within the property line of the Club, the Club requests a License from the Village to permit a fence in the right of way of Spring Road, to be installed and maintained by the Club. NOW, THEREFORE, FOR AND IN CONSIDERATION of Ten Dollars ($10.00) in hand paid and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the following grants, licenses, covenants and restrictions are made by the Licensor to the Licensee: 1. A Grant of License The Licensor hereby grants to the Licensee, its successors and assigns an exclusive right to replace, construct, install and maintain a fence in the right of way of Spring Road upon the terms and conditions and for the purposes set forth herein. 2. License Purpose. The license herein granted to the Licensee shall be an exclusive license to replace, construct, install and maintain a fence in substantially the same location as the fence is depicted on Exhibit A attached hereto and made a part hereof, and to maintain in an appropriate and customary manner the portion of the right of way on the west side of the fence. The Licensee shall maintain the fence in a safe condition at all times the License Agreement is in effect. 3. Restoration by Licensee. After the performance of any work on the fence and in the right of way, by, or on behalf of the Licensee, the Licensee at the Licensee's sole cost and expense shall replace and restore such area and /or improvements on the east side of the fence damaged or destroyed by such work to the condition of such area and /or improvements before the performance of such work 4. Rights to Trim or Remove Vegetation. The right is also hereby granted to the Licensee, to the extent necessary, to cut down, trim or remove any shrubs or other vegetation that interfere with the construction and the maintenance of the fence and to appropriately landscape the area which is the subject of this License Agreement. 5. Indemnification The Licensee agrees to indemnify, defend, save and hold harmless the Licensor, its officers, employees, and agents from any loss, damage or expense, including attorneys fees, which Licensor may suffer, incur or sustain resulting, directly or indirectly, from the Licensee's installation and maintenance of a fence in the portion of the right of way which is the subject of this License Agreement. 5b. The Licensee shall indemnify the Licensor for all costs and expenses, including reasonable attorneys fees, incurred by the Licensor in any legal proceeding or action, whether at law or in equity instituted for the purpose of enforcing any provision of this License Agreement. 6. Construction of Grant of License The rule of strict construction does not apply to this License Agreement. This License Agreement shall be given a reasonable construction so that the intention of Licensor to confer a usable right of enjoyment on the Licensee is effectuated. 7. Termination. This License Agreement may be terminated by Licensor without cause upon ninety (90) days prior written notice to Licensee. In the event that Licensor so notifies Licensee, Licensee shall remove the fence and any other appurtenances from the Spring Road right -of -way at Licensee's sole cost prior to the termination date. 2 8. Notice A. Except as otherwise specifically provided herein, all notices required or permitted hereunder shall be in writing and shall be served: 1. By personal delivery; or 2. By mailing by certified mail, return receipt requested (in which event the notices shall be deemed served as of the second business day following such mailing); or 3. By sending a fax transmission to the fax number listed below (in which event the notice shall be deemed served as of the first business day following the date of the confirmation of receipt of such transmission on the sending fax machine); or 4. By sending by nationally recognized overnight express delivery services (such as Federal Express, Airborne, Emory, U.S. Postal Service, etc.) (in which event the notice shall be deemed served as of the first business day following the latest of the delivery day ranges held out by such express delivery service for the manner sent). B. For the purposes of this Agreement, a "business day" is deemed to mean Monday through Friday, 8:00 AM to 5:00 PM, local time, excluding federal holidays. C. All notices required or permitted hereunder shall be served on the persons set forth below: 1. In the case of the Village, to: a) Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Attn: Village Clerk and b) Richard Martens Attorney at Law 20 N. Wacker Drive K, Suite 1660 Chicago, IL 60606 Fax No 312/606 -7077 2. In the case of the Club, to: a) Oak Brook Club, Inc. a /k /a Oak Brook Club Community Area Trust Oak Brook Club Drive Oak Brook, IL 60523 Attn: Property Supervisor and b) Arnstein & Lehr Nancy S. Harbottle 2800 West Higgins Road Suite 425 Hoffman Estates, IL 60195 Fax No. (847) 843 -3355 or to such other address with respect to either party as that party may, from time to time, designate in writing and forward to the other as provided in this paragraph. 9. The parties to this License Agreement state that their relationship is strictly that of Licensor and Licensee; that this instrument does not grant the Licensee any interest or estate in the premises described herein; and that the Licensee is not the agent of the Licensor. The Licensee agrees that it will not claim at any time any interest or estate in the premises described herein by virtue of this License Agreement or the Licensee's occupancy or use hereunder. 10. Term The Term of this exclusive License Agreement is thirty (30) years provided however, that unless the Licensor serves written notice upon the Licensee at least ninety (90) days prior to the end of the Term, this agreement shall automatically renew for an additional five (5) year period In the event that Licensor so notifies Licensee, Licensee shall remove the fence and any other appurtenances from the Spring Road right -of -way at Licensee's sole cost prior to the expiration date. 11. No Assignment or Recordation. The Licensee shall not sell, assign or otherwise transfer its rights underthis License Agreement without the written consent of the Licensor. Additionally, the Licensee shall not record this License Agreement in the office of the Recorder of Deeds, DuPage County, 4 Illinois and any attempt to record this document shall automatically terminate this License Agreement and all rights granted hereunder. LICENSOR. The Village of Oak Brook, an Illinois municipal corporation By. /�1 � .' 1 � .�..ul ..- President Village Clerk Um -1 STATE OF ILLINOIS PA64-=bu COUNTY OF C -A6ff- LICENSEE: The Oak Brook Club, aka Oak Brook an Club Community Area Trust, an Illinois not - for - profit corporation By: 41-_� vl"o IV Its- P 3 M1 / ,P Ll- - jV T Attest: ACKNOWLEDGMENT OF LICENSOR I, the undersigned, a Notary Public in and for said County in the State aforesaid, DO HEREBY CERTIFY that S and D4 E , whose names are subscrib d to the foregoing instr ment, appeared before me this day in person and severally acknowledged that they are respectively the Village President and Village Clerk of the Village of Oak Brook, an Illinois municipal corporation (the "Village ") and that as such Village President and Village Clerk, they signed, sealed and delivered the said instrument pursuant to authority given by the Village Board of the Village, as their free nNdol�ptary act and as the free and voluntary act of said Village as authorized by -io33 dated �'R,PVp,Qy �, 2003, for the uses and purposes therein set forth -� GIVEN under m- `ndand seal this ��j�Y 2 da of � � � 003. C` IL SEAS �IDYCF IMF F -� PiLUM,- taV Pu is 5 STATE OF ILLINOIS COUNTY OF DUPAGE ACKNOWLEDGMENT OF LICENSEE I, the undersigned, a Notary Public in and for said Counti--� the State aforesaid, DO HEREBY CERTIFY that and Pcos s l � , whose names are subscr&A t t e fWgoing instrum t, appeared before me this day in person and severally acknowledged that they are respectively the - and of the Oak Brook Club Inc. a /k/a Oak v Brook Club Community Area Trust, an Illinois t- for - profit corporation (the "Club ") and that as such President and Secretary, they signed, sealed and delivered the said instrument pursuant to authority given by the Corporation, as their free and voluntary act and as the free and voluntary act. GIVEN under my hand and seal this �day of , 2003. 29539_3 [clean 1/6/03] E ICIAL SEAL" rk W. Burke No ry Public ublic, State of Illinois ission Exp 04/23/2006 0 P Nam µ L•N:+7' !7^'O. 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