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R-22-57VILLAGE OF DEERFIELD RESOLUTION NO. R-22-57 A RESOLUTION APPROVING A LICENSE AGREEMENT (909 Lake Cook Road — WEC Business Services) WHEREAS, the Village is the record title owner of the property commonly known as 909 Lake Cook Road, Deerfield, Illinois, and legally described in Exhibit A attached and, by this reference, made a part of this Ordinance ("Property'); and WHEREAS, the Property is located within the P-1 Public Lands District of the Village ("P-1 District's; and WHEREAS, WEC Business Services LLC ("Applicant') operates a natural gas utility in the Village and surrounding area; and WHEREAS, the Applicant desires to construct a 165-foot monopole, an electric enclosure, and fence on the Property to serve its utility network (collectively, "Improvements') pursuant to a proposed license agreement between the Applicant and Village; and WHEREAS, in furtherance of the construction of the Improvements, the Applicant filed an application with the Village seeking approval of a special use permit pursuant to a special use ordinance ("Final Approvals'; and WHEREAS, the Final Approvals require that the Village and Owner enter into a license agreement governing the Applicant's use and development of the Property ("License Agreement"); and WHEREAS, the Village Board has determined that entering into the License Agreement with the Applicant will serve and be in the best interest of the Village; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows: SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and made a part of, this Resolution as findings of the Village Board. SECTION TWO: APPROVAL OF LICENSE AGREEMENT. The License Agreement by and between the Village and the Applicant is hereby approved in substantially the form attached to this Resolution as Exhibit A, and in a final form to be approved by the Village Manager and the Village Attorney. SECTION THREE: EXECUTION OF LICENSE AGREEMENT. The Village Mayor and the Village Clerk are hereby authorized and directed to execute and attest, on behalf of the Village, the License Agreement upon receipt by the Village Clerk of at least one original copy of the License Agreement executed by the Applicant; provided, however, that if the executed copy of the License Agreement is not received by the Village Clerk within 30 days after the effective date of this Resolution, or within such greater period of {00129022.1} time as the Village Board may approve by resolution, then this authority to execute and attest will, at the option of the Village Board, be null and void. SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and effect upon its passage and approval by a majority of the members of the Village Board. AYES: Benton, Berg, Metts-Childers, Oppenheim, Seiden NAYS: None ABSTAIN: None ABSENT: Jacoby PASSED: November 7, 2022 APPROVED: November 7, 2022 RESOLUTION NO. R-22-57 Daniel C.._ hapiro, Mayor ATTEST: W 15 - !� �-- Y- Kent S. St eet, Village Cle �k W 129022.1} EXHIBIT A LICENSE AGREEMENT {00129022.1} LICENSE AGREEMENT This License Agreement ("Agreement') is made as of 2022 ("Effective Date's by and between the Village of Deerfield, an Illinois home rule municipal corporation, ("Village'l and WEC Businesses Services LLC, a Wisconsin limited liability company authorized to do business in Illinois ("Licensee"). WITNESSETH: WHEREAS, the Village owns the property commonly known as 1095 Lake Cook Road, Deerfield, Illinois and legally described in Exhibit A, attached to, and by this reference made a part of, this Agreement ( "Property); and WHEREAS, the Village uses the Property for various purposes, including for a stormwater reservoir; and WHEREAS, Licensee desires to install, operate, and maintain an approximately 165- foot monopole tower, transmission equipment, and appurtenances thereto (collectively the "Tower's on the portion of the Property depicted in Exhibit B, attached to, and by this reference made a part of, this Agreement ("Premises'; and WHEREAS, the Village and Licensee (collectively the "Parties'l desire to enter into this Agreement to establish the terms and conditions for installation, operation, and maintenance of the Tower on the Premises; and WHEREAS, Licensee is authorized to enter into this Agreement and to perform the covenants and promises herein made and undertaken; and WHEREAS, Licensee acknowledges that this Agreement does not provide exclusive use of the Property to Licensee, but does provide an exclusive license to the Premises, and that the terms of this Agreement are nondiscriminatory, competitively neutral, and commercially reasonable; NOW, THEREFORE, in consideration of the recitals and the provisions of this Agreement, the Parties agree as follows: Section 1. Recitals. The foregoing recitals are incorporated in this Agreement by this reference as substantive provisions of this Agreement. Section 2. Grant of License. A. Grant of License. Subject to the terms and conditions set forth in this Agreement, the Village hereby grants to Licensee, and Licensee hereby accepts, an exclusive revocable license for the use of the Premises solely to install, operate and maintain the Tower to operate its gas utility ("License'D. {00126656.6} B. Limitation of Interest. Except for the License granted pursuant to this Agreement, Licensee shall have no legal, beneficial, or equitable interest, whether by adverse possession or prescription or otherwise, in the Premises. LICENSEE HEREBY EXPRESSLY ACKNOWLEDGES THAT THIS AGREEMENT IS A LICENSE, NOT A LEASE, AND EXCEPT FOR NOTICES ALLOWED OR REQUIRED UNDER THE TERMS OF THIS AGREEMENT, EXPRESSLY WAIVES ANY NOTICE TO QUIT, NOTICE TO VACATE, NOTICE OF INTENT, OR ANY OTHER NOTICES WHICH MAY OTHERWISE BE REQUIRED BY LAW. C. As -Is, Where -Is. Licensee hereby accepts the Premises in its condition at the time of the execution of this Agreement, WHERE -IS and AS -IS, and subject to applicable requirements of law. Licensee acknowledges and agrees that: (i) the Village has made no representation or warranty as to the suitability of the Premises for Licensee's intended purposes; and (ii) the Village will have no responsibility to maintain the Premises or Property in any particular condition or manner or provide security to the Property. Licensee waives any implied warranty that the Premises is or will be suitable for Licensee's intended purposes. D. Term. The License term commences on the Effective Date and expires on the date that is 40 years after the Effective Date ("Term'. Upon mutual agreement of the Parties, the Parties may extend the Term. E. Termination of License: Restoration of Licensed Premises. 1. Termination Event. Without prejudice to any other rights and remedies available pursuant to this Agreement, the License shall terminate at the Village's option upon the occurrence of any of the following: a. Expiration. At the end of the Term if the Parties do not agree to an extension. b. Failure to Comply. Licensee has violated any provision of this Agreement; provided, however, that prior to termination pursuant to this Section 2.E.l.b, the Village shall provide Licensee with 10 days written prior notice pursuant to Section 14 of this Agreement and an opportunity to cure the violation; provided that if the nature of the violation makes a cure impossible within 10 days, Licensee's opportunity to cure the violation shall be extended to 30 days. C. Village Construction. The Village desires to engage in construction or other improvements on the Property or Premises and elects, in its sole discretion, to terminate this Agreement and the License; provided that the Village provides Licensee with 6- months prior written notice pursuant to Section 14 of this Agreement. {00126636.6} 2 e. Dangerous Condition. The Village determines, in its sole and absolute discretion, and provides Licensee prior written notice pursuant to Section 14 of this Agreement, that the Tower or use thereof threatens the public health and safety, and that the repair or removal of the Tower is necessary to abate the dangerous condition; provided that if the threat to the public health and safety is curable, that Licensee has 72 hours to cure the threat; provided that if the nature of the threat makes a cure impossible within 72 hours, Licensee's opportunity to cure the violation shall be extended to 30 days and provided further that the Village has the right to take all reasonable measures to abate the threat until such time as the threat is cured by Licensee. f. Abandonment. If the Tower ceases operation for a continuous period of six months. 2. Restoration of Licensed Premises. a. Licensee Obligation. Upon termination or expiration of this Agreement pursuant to this Section 2.E, Licensee, at its sole cost and expense, shall remove the Tower and restore the Premises as nearly as practicable to its condition on the Effective Date of this Agreement. b. Failure to Restore. In the event that Licensee fails or refuses to repair, replace and/or restore the Premises or any Village -owned property that is disturbed, damaged, or removed by Licensee, in accordance with Section 2.E.2.a of this Agreement, the Village shall have the right, but not the obligation, to perform and complete the repair, restoration, and/or replacement, and to charge Licensee for all costs and expenses, including legal and administrative costs incurred by the Village, for such work. The rights and remedies provided in this Section 2.E.2.b shall be in addition to, and not in limitation of, any other rights and remedies otherwise available to the Village. Section 3. Construction and Maintenance of Tower. A. Construction of Tower. The construction and installation of the Tower, including all appurtenances thereto and utilities that are to serve the Tower, shall strictly conform to the site plans and design, operation and location specifics set forth in Exhibit C, attached to, and by this reference made a part of, this Agreement ("Tower Specifications"). No change in or modification to the Tower that is not in conformance with the Tower Specifications shall be made by Licensee without: (i) an amendment to this Agreement; (ii) a permit issued by Village, if applicable; and (iii) the submission of an engineering study to the Village. When performing any construction, installation, replacement, or maintenance work on the Premises (collectively, "Work', Licensee shall provide the Village: (1) a construction schedule, which the Village must approve prior to the commencement of any Work; (ii) before (00126656.6) 3 and after photographs of the Work to demonstrate that the worksite is cleaned, clear of trash and debris, and (iii) if the Village requests, evidence that the Work was completed in accordance with the Tower Specifications and/or any Village permits. This requirement shall not apply to routine maintenance work. B. Access. Licensee and its authorized representatives shall have the right to enter the Property for the purpose of gaining access to the Premises though a daisy chained lock. Except in an emergency, the Licensee shall provide the Village with at least 48-hours prior written notice before accessing the Property. Notwithstanding anything contrary contained herein, prior written notice to the Village shall not be needed in a bona fide emergency threatening life or injury to property necessitating Licensee to enter the Premises, in which case, Licensee shall give the Village prior notice as soon as practicable, which notice can be given by calling the Village's police department. C. Maintenance. Licensee shall, at its sole expense, maintain the Premises and the Tower in a good, clean, safe, first rate manner, without hazard, and in accordance with all federal, State, and local laws, statutes, ordinances, and regulations (collectively, "Requirements of Law"). Licensee shall also comply with the following: 1. The Premises and Tower must be maintained as set forth and depicted in the Tower Specifications except as may be otherwise approved of by the Village; 2. Licensee shall keep the Premises and the Property locked and secure at all times when Licensee or its contractors are not present at the Premises. 3. Licensee may not store fuel, gasoline, flammable materials, or other dangerous substances or chemicals on the Property. D. Liens. Licensee hereby represents and warrants that it shall take all necessary action to keep all portions of the Premises free and clear of all liens, claims, and demands, including without limitation mechanic's liens, in connection with any work performed by the Licensee or its contractors on the Premises. Section 4. Use of Premises. A. Cost. Licensee acknowledges and agrees that it is solely responsible, and that the Village will have no obligation, for payinent of the costs of installation, operation or maintenance of the Tower or any costs associated with Licensee's use of the Premises pursuant to this Agreement, including, without limitation, all utility costs to operate the Tower. In the event that the Village incurs any costs as a result of Licensee's use of the Tower or Premises pursuant to this Agreement, Licensee must reimburse the Village for such costs within 30 days after receipt of an invoice therefor. B. Use of Premises b\- For or By Third Parties Prohibited. This Agreement allows for the use of the Premmses by Licensee only for the operation of Licensee's or its affiliates own networks and to serve Licensee's or its affiliates' business needs and customers. Licensee shall not operate the Tower or any equipment thereon to benefit other utility provider except for an {00126656.6} 4 affiliate or any cellular provider, or allow any other entity or third -party to operate on or at the Tower or install or operate any equipment on the Premises. C. Governmental Ap rovals. Licensee's ability to use the Premises is contingent on Licensee obtaining all certificates, permits, zoning, and other approvals (collectively "Governmental Approvals") that are required by federal, State, and local authorities that will permit Licensee's operation of the Tower on the Premises. If an application for a Governmental Approval is rejected or a Governmental Approval issued to Licensee is canceled, expires, lapses, is withdrawn, or is terminated by a governmental authority, and if Licensee or the Village determines that the Governmental Approval cannot be obtained in a timely manner, then Licensee or the Village may terminate this Agreement by giving notice to the other party pursuant to Section 14 of this Agreement. No previously paid Rent (as defined in Section 5 of this Agreement) or other fees paid to the Village pursuant to this Agreement will be returned to Licensee in the event of such termination. Section 5. Licensee Fee. A. Initial Fee. Within 10 business days of the Effective Date of this Agreement, Licensee shall pay a fee to the Village of $5,000.00 ("Initial Fee'. B. Annual License Fee. In addition to the Initial Fee, Licensee shall pay an annual fee to the Village for the rights set forth in this Agreement ("Annual Fee'. The first Annual Fee shall be $30,000 and paid to the Village within 10 business days of the Effective Date of this Agreement. Licensee shall pay to the Village the Annual Fee on each anniversary date of the Effective Date or the next following business day if the Effective Date anniversary is a weekend or Village holiday, and beginning on the first anniversary of the Effective Date, the Annual Fee shall increase by three percent. Section 6. Operation and Maintenance Standards. The Tower and Licensee's operations on the Premises must meet the following requirements at all times: A. Compliance with Requirements of Law. The Tower and Licensee's use of the Premises must comply at all times with all applicable Requirements of Law. B. No Interference. Licensee's operation of the Tower must not unacceptably interfere with the frequencies currently used by the Village or any public safety agency for public safety communications located at the Property. If the Tower causes unacceptable interference with the Village's or any public safety agency's communications equipment located at the Property, and Licensee has been given written notice of the interference by the Village or public safety agency, then Licensee shall promptly investigate the same. If the investigation reveals that the Tower is causing the unacceptable interference, Licensee shall promptly take all reasonable steps necessary to correct and eliminate the unacceptable interference at Licensee's cost. If the unacceptable interference cannot be eliminated within 24 hours or some longer period agreed to by the Parties, the Village and Licensee shall engage in good faith diligent efforts to resolve the unacceptable interference issues in a manner that is mutually agreeable to the Parties. The Village may terminate this Agreement based on interference if Licensee at any time fails to make a good faith effort to remedy the unacceptable (00126656.6) 5 interference in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the Federal Communications Commission's ("FCC"). In the event that the Village's operation of communications equipment located at the Property unacceptably interferes with frequencies used by the Tower, the Village will work diligently and in good faith to find a solution that is mutually agreeable to the Parties. Section 7. Insurance. Licensee must secure and maintain the insurance policies, coverages and limits listed in Subsection (A) below under valid and enforceable policies, issued by insurers acceptable to the Village and legally able to conduct business with Licensee in the State of Illinois. A. Required Coverages and Limits. Licensee must secure and maintain the following liability insurance policies insuring Licensee as named insured. In addition, Licensee must cause the Village, and its elected and appointed officers, officials, and employees, to be included and endorsed as additional insureds as their interests may appear in accordance with a blanket additional insured endorsement in a form reasonably acceptable to the Village on the policies listed in the following Paragraphs (i) and (ii): (i) Commercial general liability insurance, including premises -operations, explosion, collapse, and underground hazard (commonly referred to as "X", "C", and "U" coverages) and products -completed operations coverage with limits of $5,000,000 per occurrence for bodily injury (including death) and for property damage, and with $5,000,000 general aggregate, plus an excess or umbrella policy with limits of $5,000,000 per occurrence and $5,000,000 in the aggregate, providing excess coverage at least as broad as and above the underlying commercial general liability insurance such that when any loss covered by the commercial general liability insurance exceeds the limits of that commercial general liability policy, the excess or umbrella policy becomes effective to cover such loss; (ii) Commercial automobile liability covering all owned, non -owned and hired vehicles with a combined single limit of $1,000,000 per accident for bodily injury and property damage; (Ili) Worker's compensation with statutory limits and employer's liability insurance with limits of $1,000,000 per accident/disease/policy limit; and (iv) All-risk property insurance for its property's replacement cost. Licensee must require its contractors to be named and endorsed as additional insures on the CGL insurance or to have their own CGL insurance with a minimum coverage of not less than $2,000,000 per occurrence. B. Copies Regqired. Licensee must provide certificates of insurance as evidence of the policies required by this Section on an annual basis, including the additional insured endorsement which may be part of a blanket endorsement with other additional insureds under (00126606.6) 6 agreements similar to this one, to the Village within 10 days following receipt of a written request therefor from the Village. C. Adiustment in Coverage and Limits. The Village reserves the right to increase the coverage and limits (collectively "Coverage") required under Paragraph A of this Section so long as the Coverage is applied uniformly and so long as the Village has reasonably determined (i) that the current Village Insurance Standards are not adequate and (ii) the Coverage is not unreasonably greater than the Coverage commonly required by municipalities. D. Notice of Cancellation. Upon receipt of notice from its insurer(s), Licensee must provide the Village with 30 days' prior written notice of cancellation of any required coverage. Within seven days after receipt by the Village of that notice, and in no event later than three days prior to the cancellation, Licensee must obtain and furnish to the Village certificates of insurance as evidence of replacement insurance policies meeting the requirements of this Section. E. Self -Insurance. Licensee may self -insure all or a portion of the insurance coverage and limit requirements required by Subsection (A) of this Section. If Licensee elects to self -insure, then it must provide to the Village evidence sufficient to demonstrate its financial ability to self -insure the insurance coverage and limit requirements required under Subsection (A) of this Section. F. Effect of Insurance and Self -Insurance on Licensee's Liability. The legal liability of Licensee to the Village and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this Section will not be limited by such insurance policies or self-insurance or by the recovery of any amounts thereunder. Section 8. Indemnification. Licensee hereby agrees to indemnify, defend, and hold the Village harmless from and against all costs, damages, claims, liabilities or expenses (including attorneys' fees) incurred by or claimed against the Village directly or indirectly, as a result of or in any way arising from (a) any failure of Licensee to perform any of Licensee's obligations under this Agreement, (b) any act or omission of Licensee while on the Property or related to the Tower or Work, (c) the use and occupancy of the Property by Licensee or Licensee's employees, agents, contractors, invitees, licenses, customers, clients, family members, or guests, or in any other manner which relates to the business of Licensee, or (d) any accident, injury or damage whatsoever caused by Licensee to any person, or the property of any person, occurring in or about the Property unless the same was caused by the Village's gross negligence or willful misconduct. Licensee's liability to the Village under this License extends to the acts and omissions of Licensee and any employee, agent, contractor, invitee, customer, client, family member or guest of Licensee; and any cost, damage, claim, liability, or expense incurred by the Village due to Licensee's indemnity liability shall be reimbursed by Licensee to the Village. The Village assumes no liability whatsoever for any property placed by Licensee or any person present on the Property unless damaged solely as a result of the Village's gross negligence or willful misconduct. Licensee shall also reimburse the Village for all damages to the Property or surrounding premises resulting from its use of the same. The indemnification pursuant to'this section shall survive termination or expiration of this Agreement. 100126656.61 7 Section 9. Licensee Ownership of Tower. The Tower, including equipment, conduits, fixtures, and personal property, are the property of Licensee, and Licensee has the right and responsibility to remove the Tower in its entirety at any time during the Term, regardless of whether the Tower or any of its components are considered fixtures and attachments to real property under applicable law. Section 10. Holdover. If Licensee continues to occupy the Premises beyond the date or time Licensee is required to remove the Tower under any provision of this Agreement (the "Holdover Period"), then Licensee will be charged, and must pay, three times the Annual Fee for the entire Holdover Period. Section 11. Notices. All notices and payments required or permitted to be given under this Agreement shall be given by the Parties by (i) personal delivery, (ii) deposit in the United States mail, enclosed in a sealed envelope with first class postage thereon, or (iii) deposit with a nationally recognized overnight delivery service, addressed as stated in this Section 14. The address of either Party may be changed by written notice to the other Party. Any mailed notice shall be deemed to have been given and received within three days after the same has been mailed and any notice given by overnight courier shall be deemed to have been given and received within 24 hours after deposit. To Village: Village of Deerfield 850 Waukegan Road Deerfield, Illinois 60015 Attention: Village Manager To Licensee: WEC Businesses Services LLC 200 E Randolph St Chicago, Illinois 60601 Attention: Real Estate Section 12. General Provisions. A. Amendments. This Agreement may be amended only in writing signed by properly authorized representatives of the Village and Licensee. B. Third Parties. This License is personal to Licensee and may not be transferred or assigned by Licensee without the Village's prior written consent, which consent may be withheld in the Village's sole and absolute discretion. C. Authorization. Each party represents and warrants that it has the authority to enter into this Agreement. {00126656.6) 8 D. Binding Effect. This Agreement is binding on each party's successors and assigns. E. Entire Agreement. This Agreement constitutes the entire agreement between the parties to this Agreement, and supersedes all prior agreements and negotiations between the parties, whether written or oral, relating to the specific subject matter of this Agreement. F. Choice of Law. This Agreement shall be interpreted according to the internal laws, but not the conflict of laws rules, of the State of Illinois. G. Good Faith C000eration. Licensee and the Village agree that in the event a decision by a regulatory authority at the federal, state, or local level requires modifications of this Agreement then Licensee and the Village will negotiate in good faith to modify this Agreement to permit each of them, to the extent practicable, to enjoy the intended benefits of this Agreement. Licensee and the Village otherwise mutually agree to cooperate with each other in good faith to perform their duties and obligations under this Agreement. H. No Waiver of Provisions. The delay or failure of a party to assert a right under, or insist on strict performance of, this Agreement will not be deemed a waiver of that right or the ability to insist on strict performance. I. No Joint Venture. It is hereby understood and agreed that nothing contained in this Agreement shall be deemed or construed as creating the relationship of principal and agent, partnership or joint venture between the parties to this Agreement, it being agreed that no provision of this Agreement and no acts of the parties to this Agreement shall be deemed to create any relationship between the parties other than the relationship set forth specifically by the terms of this Agreement. J. Counterparts. This Agreement may be signed separately by the Village and Licensee and transmitted to the other party in .pdf format, and the two signed counterparts will be deemed one instrument. [Signature Page to Follow.] (00126656,61 9 IN WITNESS WHEREOF, the Village and Licensee have caused this Agreement to be signed by its duly authorized representative as of the Effective Date. WEC Businesses Services LLC Village of Deerfield Si e: Signature Arvin J.C,6drews, Manager Property Management Kent S. Street, Village Manager Date: �� 1 �S�! 41� �� Date: ' .�'2, 2 (00126656.6) 10 Exhibit A Legal Description of Property (00126656.61 11 PARENT PARCEL LEGAL DESCRIPTION: THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER (EXCEPT THE WEST 3 ACRES THEREOF) OF SECTION 5, TOWNSHIP 42 NORTH, RANGE 23, EAST OF THE THIRD PRINCIPAL MERIDIAN, (EXCEPT THAT PART TAKEN BY ILLINOIS STATE TOLL HIGHWAY COMMISSION JUDGMENT ORDER ENTERED DECEMBER 3, 1956 IN CASE NUMBER 56-S-149$4) (ALSO EXCEPTING THOSE PARTS OF LAKE -COOK ROAD AND PFINGSTON ROAD CONVEYED TO THE STATE OF ILLINOIS, DEPARTMENT OF TRANSPORTATION, IN COOK COUNTY, ILLINOIS. Exhibit B Depiction of Premises {00126656.6} 12 afi Rf�s(< _ _ - ill y sae QW� # aQ{ •''•o .i gal 2n w� �� W y•'S� C V�Q' 'hys �••��A�i-.. 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