S-784 - 09/27/1994 - AGREEMENT - Ordinances ORDINANCE 94-AG-EXI-S- 7$4
AN ORDINANCE GRANTING TO COMMONWEALTH EDISON
CERTAIN RIGHTS TO INSTALL FIBER OPTIC CABLE IN THE
VILLAGE OF OAK BROOK, DuPAGE AND COOK COUNTIES, IL
WHEREAS, Commonwealth Edison ("ComEd") 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
ComEd 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 ComEd 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 ComEd 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 ComEd.
Ordinance 94-AG-EXI-S-784
Granting Certain Rights
to ComEd to Install
Fiber Optic Cable
Page 2
PASSED THIS 27th day of September, 1994.
Ayes: Trustees Bartecki, Calzaretta, Kenny, McInerney, Payovich and Shumate
Nays: None
Absent: None
Abstain: None
APPROVED THIS 27th day of September, 1994.
Vi lage President
ATTEST:
it ge Clerk
Appro d as to Form:
Village Attorney
Published
Date Paper
Not Published XX
Applicant: COMMONWEALTH EDISON
Address: 125 S. Clark St. . Chicag o
PIN 06-24-402-027 & 06-24-402-035
Exhibit Y
LICENSE AGREEMENT
THIS AGREEMENT entered into this 27th day of September, 1994, by and between
the Village of Oak Brook, an Illinois municipal corporation ("the Village"), and
Commonwealth Edison Company, an Illinois corporation having its principal place of business
in Chicago, Illinois ("ComEd");
WITNESSETH:
WHEREAS, ComEd has requested the Village of Oak Brook to permit ComEd 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 and public utility easements of the Village of Oak Brook described in
Exhibit A attached hereto ("the Designated Public Ways and Streets") for the purpose of
allowing ComEd to connect and operate its telecommunication and information systems
between it's various locations; and
WHEREAS, pursuant to Ordinance No. S-784 of the Village of Oak Brook,
the Village has granted ComEd 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 ComEd 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 order to
connect the telecommunication and information systems of ComEd, its agents, employees,
franchisees, suppliers and affiliates (hereinafter "the ComEd 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 ComEd 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 ComEd System unless and until ComEd 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. Said Authorization shall not be unreasonably withheld.
(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 in accordance with all Ordinances, regulations and policies of
the Village governing the construction and maintenance of underground structures and
facilities.
(d) ComEd'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 ComEd shall maintain or cause to be maintained such barriers, signals,
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or other protective devices during any construction related to the Authorized Facilities as
reasonably required by the Village. In addition, as soon as reasonably practicable after
completion of the installation of the Authorized Facilities. ComEd shall restore the surface of
any disturbed areas to the same conditions that such surface was in prior to the
commencement of such installation.
Section 3. (a) ComEd'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 this License and any renewal or extension
thereof, provided that such grant does not obstruct, injure 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 judgement 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, ComEd 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 reasonable 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 ComEd
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in identifying alternative rights-of-way for the relocated facilities, provided, however, that
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nothing in this License Agreement shall be construed as requiring or obligating the Village to
identify alternative rights-of-way.
(c) ComEd shall discontinue any use of the public way, if the Village reasonable
determines that such use is inconsistent with the public health or safety or with the purposes
for which such public way was created or dedicated or is currently being used. ComEd
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
ComEd'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 ComEd move all or any portion of the Authorized Facilities. the
Village Engineer shall certify, in writing, the basis of the emergency and shall give ComEd 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 ComEd fails to move its facilities. the
Village may do so and charge ComEd 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 judgement of the
Village to remove or damage any of ComEd's facilities, no charge shall be made by ComEd
against the Village for restoration and repair.
(e) In the event of any public way or portion thereof used by ComEd shall be
vacated by the Village, then, upon request and written notice from the Village, ComEd 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
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the former right-of-way to which title has passed to ComEd or for which ComEd has received
thereof written authority to leave the Authorized Facilities in place. In the
from the owner(s) Y
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event such Authorized Facilities shall be required to be removed, the Village Engineer shall
cooperate with ComEd 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 right-of-way.
Section 4. The rights and privileges granted by this Agreement shall be subject to
and conditioned upon, ComEd's:
(a) Insuring that the work specified in each work permit issued by the village be
carried out in compliance with the terms and conditions of such permit(s) and also protecting
and indemnifying the Village from and against any and 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 approval 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) Furnishing, the Village with a Certificate of Self-Insurance.
Section 5. ComEd 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 ComEd 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 ComEd in this Agreement.
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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 ComEd 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. ComEd has the right to conduct or
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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 ComEd's sole cost and expense.
Section 7. In consideration of the rights granted by this Agreement, ComEd shall
pay to the Village the actual costs incurred by the Village for legal and engineering inspection
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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 8. Whenever a period of time is provided for in this Agreement for either
the Village or ComEd to do or perform any act or obligation, neither part shall be liable for
any delays or inability to perform due to causes beyond the control of said party such as Nvar,
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 part-
is so delayed. An act or omission shall not be deemed to be (a) "beyond ComEd's control" if
committed, omitted or caused by ComEd, its employees, officers or agents or a subsidiary,
affiliate or parent of ComEd; or (b) "beyond the Village's control" if committed, omitted or
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caused by the Village's employees, officers, agents or contractors.
Section 9. This Agreement shall become effective upon its approval and execution
by authorized representatives of the Parties. I
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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. These rights may be extended or renewed upon the mutual
consent of the Village and ComEd.
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«-hen
delivered in person at the address set forth below, or three business days after deposit in any
main or branch United State Post Office, and shall be certified or registered mail, return
receipt requested, postage prepaid, property addressed to the parties, respectively, as follows:
For notices and communications to ComEd:
Commonwealth Edison Company
P.O. Box 767
Chicago, Illinois 60690
Attention: Corporate Telecommunications
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 partm shall
have the right to change the address or addressee or both for all future notices and
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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.
Section 15. This Agreement may be amended by the same procedure as required b}'
Illinois Statutes for its original execution and approval.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their authorized representative on or before the date first mentioned above.
VILLAGE OF OAK BROOK COMMMONWEALTH EDISON COMPANY
By: - By:
Its: sident ^ " Its:
ATTES - ATTEST:
ASSISTA'T e. CY. T�R�'
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