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S-767 - 12/14/1993 - AGREEMENT - Ordinances ORDINANCE 94-AG-EXl-S-767 AN ORDINANCE GRANTING TO McDONALD'S CORPORATION CERTAIN RIGHTS TO INSTALL FIBER OPTIC CABLE IN THE VILLAGE OF OAK BROOK, DuPAGE AND COOK COUNTIES, IL WHEREAS, McDonald's Corporations ("McDonald's") has requested the Village of Oak Brook's permission to install and maintain certain telecommunication and information systems, including but not limited to underground fiber optic cables in, under, across, along and through portions of certain public ways and streets of the Village of Oak Brook for the limited purpose of allowing McDonald's to connect and operate its telecommunication and information systems between its Oak-Brook locations; and WHEREAS, as limited in the attached License Agreement, allowing the installation of such fiber optic cables will not adversely affect the general use of the public ways and streets; and WHEREAS, allowing the installation of such fiber optic cabling will contribute to the continued health of the business community in Oak Brook, and WHEREAS, in light of the foregoing, the Village of Oak Brook agrees to grant McDonald's a license to use certain public ways and streets and such existing facilities located therein for the purposes set forth in, and subject to, the terms and conditions of the License Agreement attached hereto as Exhibit 1; 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: The Village of Oak Brook hereby grants to McDonald' s Corporation the right to construct, install, operate, repair, maintain, replace and remove in, under, across, along and through certain public ways and streets of the Village underground communication cables (including, but not limited to, fiber optic cables) , conduits, access manholes, and all associated appurtenances in accordance with and subject to the terms and provisions of the License Agreement attached hereto labeled Exhibit 1 and hereby made a part hereof. Section 2: The Village President and Village Clerk are hereby authorized and directed to execute the License Agreement on behalf of the Village. Section 3: This ordinance shall be in full force and effect upon its passage and approval in the manner provided by law, provided, however, that this ordinance shall be of no force or effect unless and until the License Agreement is fully executed by McDonald's. 1 i Ordinance 94-AG-EXI-S-767 Granting Certain Rights to McDonald's to Install Fiber Optic Cable Page 2 PASSED THIS 8th day of February , 1994. Ayes: Trustees Bartecki, McInerney, Shumate and Skinner Nays: None Absent: Trustees Kenny and Pa ovich Abstain: None APPROVED THIS 8th day of February , 1994. 4 k1a gVe e President ATTEST: al Villag Clerk Approved as to Form: Village Attorney Published Date Paper Not Published XX Applicant: McDONALD'S CORPORATION Address: 2111 McDonald's Dr;vP, nak Brook, IL 60521 PIN 06-23-407-006 LICENSE AGREEMENT THIS AGREEMENT entered into this 2I day of February, 1994, by and between the Village of Oak Brook,an Illinois municipal corporation ("the Village"), and McDonald's Corporation, a Delaware corporation having its principal place of business in Oak Brook, Illinois ("McDonald's"); WITNESSETH: WHEREAS, McDonald's has requested the Village of Oak Brook to permit McDonald's to install and maintain certain telecommunication and information systems, including but not limited to underground fiber optic cables, in, under, across, along, and through portions of the public ways and streets of the Village of Oak Brook described in Exhibit A attached hereto ("the Designated Public Ways and Streets") for the purpose of allowing McDonald's to connect and operate its telecommunication and information systems between its Oak Brook locations; and WHEREAS,pursuant to Ordinance No. 94-AG-EXI-S-767 of the Village of Oak Brook, the Village has granted McDonald's a license to use the Designated Public Ways and Streets for the purposes, and subject to the terms and conditions, hereinafter set forth; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows: Section 1. The foregoing recitals are hereby incorporated herein as in fully set forth. Section 2. (a) The Village hereby grants to McDonald's the right to construct, install, operate,repair, maintain,replace, and remove in, under, across, along, and through the Designated Public Ways and Streets of the Village underground communication cables (including but not limited to fiber optic cables), conduits, access manholes, and all associated appurtenances (hereinafter collectively referred to as "the Authorized Facilities") in i EXHIBIT 1 order to connect the telecommunication and information systems of McDonald's,its agents, employees, franchisees, suppliers and affiliates (hereinafter" the McDonald's System") for purposes of transmitting, receiving, and distributing telecommunications and other information, including but not limited to voice, data,video, facsimile, alarm, and other forms of intelligence through the McDonald's System only. All cables installed in the Designated Public Ways and Streets shall be underground. (b) The Authorized Facilities shall not be used for transmitting,receiving, or distributing telecommunications and other information through, between, or among any system other than the McDonald's System unless and until McDonald's has first obtained additional authorization from the Village for such new or expanded use,which authorization shall be subject to any ordinances,rules and regulations of the Village that are applicable to such new or expanded use. (c) The Authorized Facilities shall be constructed in accordance with the reasonable requirements of, under the direction of and subject to the approval and inspection of the Village Engineer, and in substantial conformity with the designs and specifications attached to the construction permit. Such construction shall not cause any material and prolonged interference with an existing surface or subsurface structures. The Authorized Facilities shall be maintained accordance with all Ordinances, regulations and policies of the Village governing the construction and maintenance of underground structures and facilities. (d) McDonald's work in connection with the installation of the Authorized Facilities shall not unreasonably interfere with ordinary travel along or upon the Designated Public Ways and Streets, and McDonald's shall maintain or cause to be maintained such barriers, signals, or other protective devices during any construction related to the - 2 - Authorized Facilities as reasonably required by the Village. In addition, as soon as reasonably practicable after completion of the installation of the Authorized Facilities, McDonald's shall restore the surface of any disturbed areas to the same condition that such surface was in prior to the commencement of such installation. Section 3. (a) McDonald's rights to use and occupy public ways shall not be exclusive. The Village hereby reserves the right to grant any right or use of such public ways to any person at any time during the period of the license and any renewal or extension thereof, provided that such grant does not obstruct,injury or prevent the use and operation of the Authorized Facilities. (b) The Village hereby retains the right to lay and permit to be laid, sewer, gas, water and other pipelines, cables and conduits in any public way; to change any curb or sidewalk or the grade or dimension of any street; and to do and to permit to be done any other work as the Village shall deem necessary or proper in its sole judgment and discretion. All such works shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of the Authorized Facilities. If any of such Authorized Facilities shall interfere with the construction or repair of any public way or public improvement therein,McDonald's shall, at its sole cost and expense,commence and diligently prosecute to completion, the relocation, removal or replacement of such Authorized Facilities, within 120 days after the delivery of such written notice by the Village. Such work shall be performed as reasonably directed by the Village. In the event all or any portion of the Authorized Facilities must be so relocated, the Village Engineer shall cooperate with McDonald's in identifying alternative rights-of-way for the relocated facilities, provided, however, that nothing in this License Agreement shall be construed as requiring or obligating the Village to identify alternative rights-of-way. (c) McDonald's shall discontinue any use of the public way, if the Village reasonably determines that such use is inconsistent with the public health or safety or with the purposes for I - 3 - r which such public:way was created or dedicated or is currently being used. McDonald's acknowledges and accepts at its own risk that the Village may make use in the future of the public ways in which the Authorized Facilities are located in a manner inconsistent with McDonald's use of such public right-of-way for its placement of its Authorized Facilities. (d) In the event an emergency should arise wherein the Village of Oak Brook deems it necessary to have McDonald's move all or any portion of the Authorized Facilities, the Village Engineer shall certify, in writing, the basis of the emergency and shall give McDonald's a reasonable amount of time under the circumstances,but in no event less than 14 days, to move all or such portion of its facilities. In the event McDonald's fails to move its facilities, the Village may do so and charge McDonald's for any costs to the Village for movement of the facilities. The Village shall have no liability for any damages as a result of such movement. Wherever, in case of fire or other disaster, it becomes necessary in the judgment of the Village to remove or damage any of McDonald's facilities, no charge shall be made by McDonald's against the Village for restoration and repair. (e) In the event any public way or portion thereof used by McDonald's shall be vacated by the Village, then, upon request and written notice from the Village, McDonald's shall, at its sole cost and expense, remove its facilities therefrom within 120 days of the date of such notice; provided, however, that no such removal shall be required from those portions of the former right-of-way to which title has passed to McDonald's or for which McDonald's has received from the owner(s) thereof written authority to leave the Authorized Facilities in place. In the event such Authorized Facilities shall be required to be removed, the Village Engineer shall cooperate with McDonald's in identifying alternative rights-of-way for the relocation of the Authorized Facilities; provided, however, that nothing in this License Agreement shall be construed as requiring or obligating the Village to identify alternative rights-of-way. -4- Section 4.- The rights and privileges granted by this Agreement shall be subject to and conditioned upon, McDonald's: (a) Furnishing the Village (or causing the Village to be furnished),prior to the issuance of each work permit, with a bond with corporate surety in an amount reasonably required by the Village Engineer and in form satisfactory to the Village Attorney to insure that the work specified in such permit shall be carried out in compliance with all the terms and conditions of such permit and to protect and to indemnify the Village from and against all damages or claims for damages that may arise directly or indirectly as a result of the construction, installation, repair, maintenance, replacement and removal of the Authorized Facilities; and (b) Securing all necessary permits from the Village as required by Ordinance; and (c) Securing the appLoval of any other governmental agency of all underground construction as being in compliance with applicable federal, state, and local laws, ordinances, and regulations; and (d) Assuming the cost of all changes and adjustments to, and relocation and abandonment of the Authorized Facilities; and (e) Maintaining public liability and property damage insurance, naming the Village as an additional insured, in amounts of not less than$500,000 per occurrence and$2,000,000 in aggregate. Section 5. McDonald's may not assign any or all of its rights and obligations established by this Agreement without the written consent of the Village, which shall not be unreasonably withheld. Section 6. All rights granted herein to McDonald's in the public ways are granted based on the information and belief of the Village that it has title or an interest in such public ways and the right and power to grant the rights and interests granted to McDonald's in this i i - 5 - Agreement. The Village does not represent or warrant that it has title to or any interest in the Public Ways or the right to grant to McDonald's the rights and interests granted in this Agreement. This Agreement shall be deemed to grant only such rights to use the public ways as the Village may have the right and power to grant in this Agreement. McDonald's has the right to conduct or obtain a title search of the public ways to ascertain the status of the Village's rights and interest in the same, which shall be at McDonald's sole cost and expense. Section 7. In consideration of the rights granted by this Agreement, McDonald's shall pay to the Village the actual costs incurred by the Village for legal and engineering inspection and review services within thirty (30) days after receipt of an itemized statement detailing such costs. Such fee shall be inclusive of all applicable fees and charges required under the Village's ordinances. Section 9. Whenever a period of time is provided for in this Agreement for either the Village or McDonald's to do or perform any act or obligation, neither party shall be liable for any delays or inability to perform due to causes beyond the control of said party such as war, riot, insurrection, rebellion, strike,lockout, unavoidable casualty or damage to personnel, materials or equipment, fire, flood, storm, earthquake, tornado or any act of God; provided, however, that said time period shall be extended for only the actual amount of time said party is so delayed. An act or omission shall not be deemed to be (a) "beyond McDonald's control" if committed, omitted or caused by McDonald's, its employees, officers or agents or a subsidiary, affiliate or parent of McDonald's; or (b) "beyond the Village's control" if committed, omitted or caused by the Village's employees, officers, agents or contractors. Section . This Agreement shall become effective upon its approval and execution by authorized representatives of the Parties. Section 10. The rights granted by this Agreement shall extend for a term of fifty (50) years from the effective date hereof; and shall not be revoked or terminated by the Village except for good cause. i - 6 Section 11: ' If any section, subsection, sentence, clause,phrase, or other portion of this Agreement or its application to any person is, for any reason, declared invalid in whole or in part by any court, agency, commission, legislative body, or other authority of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. Section 12. This Agreement and the rights of the parties hereunder shall be interpreted and enforced in accordance with the laws of the State of Illinois. Section 13. All notices and other communications in connection with this Agreement shall be in writing, and shall be deemed delivered to the addressee thereof when delivered in person at the address set forth below, or three business days after deposit in any main or branch United States Post Office, and shall be certified or registered mail,return receipt requested, postage prepaid,properly addressed to the parties,respectively, as follows: For notices and communications to McDonald's: McDonald's Corporation One McDonald's Plaza Oak Brook, Illinois 60521 Attention: General Counsel For Notices and Communications to the Village: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60521 Attention: Village Attorney By notice complying with the foregoing requirements of this section, each parry shall have the right to change the address or addressee or both for all future notices and communications to such party, but no notice of a change of address shall be effective until actually received. Section 14. Subject to Section 5 above, each of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and the respective successors and assigns. -7 - y Section 15: This Agreement may be amended by the same procedure as required by Illinois Statutes for its original execution and approval. IN WITNERSS WHEREOF,the parties have caused this Agreement to be executed by their authorized representatives on or before the date first mentioned above. VILLAGE OF OAK BROOK McDONALD'S CORPORATION Y Y Its: President-e-t-"`' Its: Department Director ATTEST: ATTEST: d! af!i Assist Sec c NJ • OO°LV...Nagy McDonald's (ACKNOWLEDGMENT) STATE OF ILLINOIS SS: COUNTY OF DuPAGE I,Karen M.Billman,a Notary Public in and for the county and state aforesaid,DO HEREBY CERTIFY that Laura Horstman, Director and Michael J. Sise,Assistant Secretary, of McDonald's Corporation, a Delaware corporation, who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Laura Horstman and Michael J. Sise, respectively,appeared before me this day in person and acknowledged that they signed,sealed and delivered the said instrument as their free and voluntary act as such Director and Assistant Secretary , respectively, as the free and voluntary act of said corporation for the uses and purposes therein set forth. Given under my hand and notarial seal,this 22nd day of February, 1994. /0 A& OFFS�IAL SEAL Notary Public +cA 'I S_I- ()F NOTARY F.,� IC_-.A E OF ILLINOIS MY COMMISSION EXP. APR_ 17.1995 My commission expires: (ACKNOWLEDGMENT - INDIVIDUAL) STATE OF SS: COUNTY OF DuPage I, Sandra P. Schmidt ,a Notary Public in and for the county and state aforesaid,DO HEREBY CERTIFY that Karen M. Bushy and Linda K. Gonnella of the Village of Oak Brook who ((j* (are) personally known to me to be the same person(s) whose name(s) 6W (are) subscribed to the foregoing instrument appeared before me this day in person and acknowledged that WwO (they) signed,sealed and delivered the said instrument as (their) free and voluntary act for the uses and purposes therein set forth. Given under my hand and notarial seal,this 25th day of February 19_24. r Notary Public •. "LNOTARY FICIAL SEAL " My commission expires: RA P. S C H M I D T PUBLIC. STATE OF ILLINOIS ISSION EXPIRES 5/11/96 g:kbillman/ACK-IND • d x i i N it •• � / �/ � � �- - z i. lz ` yL' ' p its o � • a � � • I n � ........... e ......... f Odo 2 r 112 2t .� V� E• I� ..�, �r �. m /'. / as