===== PDF PAGE 35 ===== [Extraction: OCR (rendered-page OCR)] CITY OF WEST CHICAGO CITY COUNCIL © _ AGENDA ITEM SUMMARY ITEM TITLE: AGENDA ITEM NUMBER: 3-C. License Agreement Use of Prince Crossing Road and FILE NUMBER: Meadowview Crossing Rights-of-Way ; COMMITTEE AGENDA DATE: N/A Resolution #21-R-0029 COUNCIL AGENDA DATE: May 3, 2021 STAFF REVIEW: Tom Dabareiner, AICP SIGNATURE ZA — APPROVED BY CITY ADMINISTRATOR: Michael SIGNATURE Guttman ITEM SUMMARY: The owner of 1100 E. North Ave. has submitted, through their attorney, a draft license agreement to use the City’s public right-of-way for a sanitary sewer system. Specifically, the rights-of-way of Prince Crossing Road and Meadowview Crossing are sought to install, operate, and maintain a sewer main and appurtenances for sanitary sewer service at the subject property. This proposed sanitary service will serve the Cascade Drive-In Theater, which the owner intends to reopen at the subject property. The property was used for the theater for 40+ years before its discontinuation in 2018. In 2019, the property was sold to the current ownership, held in a land trust, who are pursuing reopening the theater. In December of 2020, the owner received zoning approval to continue using the property as a legal nonconforming drive-in theater. The owner is now preparing to upgrade utility infrastructure. Neither sewer nor water are available for the property. The property has an existing private well and uses an off-site septic pond for its sanitation. The owner intends to continue using the existing well and has submitted a separate request to waive the City’s water connection requirement. The use of the septic pond, however, will be discontinued by the owner due to concerns with public health. Instead, a private lift station will be constructed on the property and a force main will be installed that will connect the lift station to an existing sanitary sewer stub in the Prairie Meadows residential subdivision. For this connection to occur, the owner is seeking use of the City’s rights-of-way to provide a route from the Cascade property to the sanitary stub. The length of the sanitary sewer from the Cascade property to the existing stub is approximately 850 feet. The draft license agreement between the owner and the City will allow this connection to occur within the rights-of-way and will have a term of 20 years, with an automatic 20-year renewal at the expiration, unless the owner has violated the terms of the agreement. The agreement will also expire if the owner has abandoned the sanitary sewer or if the Cascade Theater has ceased operations. Furthermore, the owner is required to maintain commercial general liability insurance throughout the term of the agree- ment. ACTION PROPOSED: Discussion and authorization to execute the proposed License Agreement. COMMITTEE RECOMMENDATION: This item did not go to a committee. Cc: Resolution License Agreement ===== PDF PAGE 36 ===== [Extraction: OCR (rendered-page OCR)] RESOLUTION NO. 21-R-0029 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A CERTAIN LICENSE AGREEMENT WITH CHICAGO TITLE LAND COMPANY TRUST 8002380575 FOR USE OF CITY RIGHT-OF-WAY ALONG PRINCE CROSSING ROAD AND MEADOWVIEW CROSSING BE IT RESOLVED by the City Council of the City of West Chicago, in regular session assembled, that the Mayor is hereby authorized to execute a certain License Agreement for use of City right-of-way along Prince Crossing Road and Meadowview Crossing between the City of West Chicago and Chicago Title Land Company, as Trustee under the provisions of a certain Trust Agreement dated April 9, 2019 and known as Trust Number 8002380575 by East North Avenue, LLC, the holder of the beneficial interest of the trust, by Apercen Partners, LLC, its manager, by William Hartwig, its manager, in substantially the form attached hereto and incorporated herein as Exhibit “A”. APPROVED this 3" day of May, 2021 AYES: NAYES: ABSTAIN: ABSENT: Mayor, Ruben Pineda ATTEST: City Clerk, Nancy M. Smith ===== PDF PAGE 37 ===== [Extraction: OCR (rendered-page OCR)] RESOLUTION NO. 21-R-0029 A RESOLUTION OF THE CITY OF WEST CHICAGO, DUPAGE COUNTY, ILLINOIS AUTHORIZING THE EXECUTION OF A RIGHT OF WAY LICENSE AGREEMENT WITH CHICAGO TITLE LAND COMPANY, AS TRUSTEE UNDER THE PROVISIONS OF A CERTAIN TRUST AGREEMENT DATED APRIL 9, 2019 AND KNOWN AS TRUST NUMBER 8002380575 WHEREAS, the City of West Chicago (“City”) is a home rule municipality existing pursuant to the Illinois Municipal Code, 65 ILCS 5/1-1 et seg,, located in the County of DuPage, State of Illinois; and WHEREAS, the City owns right of way in the City commonly known as Meadowview Crossing; and WHEREAS, Chicago Title Land Company, As Trustee Under The Provisions Of A Certain Trust Agreement Dated April 9, 2019 And Known As Trust Number 8002380575 (“Owner”) seeks a license from the City to install, construct, locate, operate and maintain a sanitary sewer system, including sewer main and appurtenances in the right of way, which is designed to provide sanitary sewer service to the Owner’s Property located at 1100 E. North Avenue, to facilitate the reopening of the Cascade Drive-In Theater; and WHEREAS, the Owner and City Staff have discussed the terms for said license, which are contained in the License Agreement attached hereto and incorporated herein by reference as Exhibit A; and WHEREAS, the City Council of the City of West Chicago has reviewed the License Agreement and the purposes therefore, and deems it advisable and in the best interests of the residents of the City of West Chicago to authorize execution of the License Agreement for the purposes stated therein. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of West Chicago, Illinois, in regular session assembled: Section 1. That the recitals set forth above are incorporated herein in their entirety. SECTION 2: The City Council hereby authorizes the Mayor to execute on behalf of the City of West Chicago the License Agreement attached hereto and incorporated herein as Exhibit “A” and the City Clerk to attest to said signature thereto. Section 3. That the City Clerk shall record the License Agreement upon full execution. Section 4. That City Staffis hereby directed to take all steps necessary in furtherance of 1 21-R-0029 May 3, 2021 ===== PDF PAGE 38 ===== [Extraction: OCR (rendered-page OCR)] the License Agreement. Section 5, That all ordinances and resolutions, or parts thereof in conflict with the provisions of this Resolution are, to the extent of such conflict, hereby repealed. Section 6. That this Resolution shall be in full force and effect from and after its adoption, approval and publication in pamphlet form as provided by law. PASSED this 3 day of May, 2021. APPROVED as to form: City Attorney APPROVED this 3" day of May, 2021. Mayor Ruben Pineda ATTEST: Nancy M. Smith, City Clerk PUBLISHED: , 2021 2 21-R-0029 May 3, 2021 ===== PDF PAGE 39 ===== [Extraction: OCR (rendered-page OCR)] CITY OF WEST CHICAGO/CHICAGO TITLE LAND COMPANY, AS TRUSTEE UNDER THE PROVISIONS OF A CERTAIN TRUST AGREEMENT DATED APRIL 9, 2019 AND KNOWN AS TRUST NUMBER 8002380575 LICENSE AGREEMENT This License Agreement (the “License Agreement”) is entered into this ___ day of May, 2021, by and between the City of West Chicago, an Illinois municipal corporation, 475 Main Street, West Chicago, Illinois 60185 (“Licensor”) and Chicago Title Land Company, as Trustee under the provisions of a certain Trust Agreement dated April 9, 2019 and known as Trust Number 8002380575 by East North Avenue, LLC, the holder of the beneficial interest of the trust, by Apercen Partners, LLC, its manager, by William Hartwig, its manager, 625 N. Michigan Avenue, Suite 650, Chicago, Illinois 60611 (“Licensee”) (individually a “Party”, collectively, the “Parties”’). RECITALS: A. Licensor owns property commonly known as Meadowview Crossing, a Road Right-of- Way generally running east-west located connecting Prince Crossing Road and the Meadowview Crossing subdivision, which is legally described in Exhibit “A”, attached hereto and incorporated herein by reference (the “Licensed Premises”). B. Licensee desires to use the Licensed Premises for the installation, construction, location, operation, and maintenance of a sanitary sewer system, including sewer main and appurtenances to provide sanitary sewer service to the Cascade Drive-In Theater property located at 1100 E. North Avenue (“Cascade Property”). The sanitary sewer system to be constructed at Licensee’s sole cost and expense will include a lift station located on the Cascade Property and the sewer main and appurtenances located in the Licensed Premises (“Sanitary Sewer System”) so that Licensee can provide sanitary sewer service to the Cascade Property subject to the terms and conditions of this License Agreement. NOW THEREFORE, for and in consideration of the covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged, the Parties agree as follows: 1. The foregoing Recitals are incorporated as if fully set forth herein. ===== PDF PAGE 40 ===== [Extraction: OCR (rendered-page OCR)] 2. Subject to the terms and conditions of this License Agreement, Licensor hereby grants Licensee, a non-exclusive license for use of the Licensed Premises for the purpose of installation, construction, location, operation, and maintenance of a sanitary sewer main and associated appurtenances and equipment, as more fully depicted in Exhibit “B” (hereinafter, the “Facilities”), attached hereto and incorporated herein by reference. Licensor also grants Licensee a non-exclusive license for ingress and egress to and from the Licensed Premises, for the purpose of maintaining the Facilities. Licensee shall be solely responsible for securing the necessary permits from any Federal, State, or local agencies and shall be solely responsible for the costs of same. The Licensee will apply for any necessary permits for construction within the Licensed Premises, and the Licensor shall cooperate in securing any necessary permits. Licensee shall secure the necessary permits to perform the work contemplated hereunder from the Licensor. Licensee agrees to provide the City Administrator of the City of West Chicago (“City Administrator”) seventy-two (72) hours-notice prior to commencing any work under this License Agreement. In the event that emergency repairs are necessary for Licensee’s Facilities, Licensee shall immediately notify the Licensor, in writing, of the need for such repairs. Licensee may immediately initiate such emergency repairs and shall apply for appropriate permits the next business day following discovery of the emergency. Licensee must comply with all Ordinance provisions relating to such excavations or construction, including the payment of permits or license fees. 3. Term. The term of this License Agreement (the “Term”) shall be twenty (20) years, commencing ___, 2021 and terminating ____, 2041. This term shall automatically be renewed for an additional twenty (20) year term at the expiration of each term unless Licensee is in default under this Agreement or Licensee has abandoned the Facilities or otherwise vacated the Licensed Premises. 4. Reimbursement of Permit Review and Inspection Fees. Licensee agrees to reimburse the Licensor for direct costs involved in any permit review and any applicable inspections of work performed within the Licensed Premises,. 5. Taxes. Licensee acknowledges that the Licensed Premises is exempt from real estate taxes, and that to the extent the County Assessor or State Department of Revenue, or any other authority with the power to do so, would attempt to assess any license or property tax as a result of the use authorized by this License Agreement, Licensee will assist Licensor in defending against any such action and if not successful, will pay any such tax as is finally determined. 6. No Lease. The Parties agree that this License Agreement confers upon the Licensee only a license and right to use the Licensed Premises upon the terms set forth herein, and that nothing contained herein is intended to confer upon the Licensee a leasehold interest in the Licensed Premises or any portion thereof. In the event of default by the Licensee, the Licensor shall not be obligated to bring a forcible entry and detainer action to terminate Licensee’s rights hereunder, provided termination of Licensee’s rights hereunder is available to Licensor as a remedy. ===== PDF PAGE 41 ===== [Extraction: OCR (rendered-page OCR)] 7. Default. In the event of the failure of any Party to perform any or all of its duties and obligations under the terms and conditions of this License Agreement, including payment of the license fees and the costs hereunder, the other Party shall notify the defaulting Party of such default in writing, and the defaulting Party shall have ninety (90) days from the receipt of such notice to cure the default. In the event said default is not cured within said cure period, or in the event of repeated defaults, the non-defaulting Party shall be entitled to all remedies available at law and/or equity to enforce its rights under this License Agreement and shall be entitled to recover its costs in bringing such suit, including its reasonable attorney’s fees. 8. General Insurance Provisions. A. Evidence of Insurance ~ Licensee shall procure, maintain and keep in effect throughout the Term a policy or policies of commercial general liability insurance with limits of not less than $1,000,000 for each occurrence (the “Insurance Coverage”). The limit can be satisfied by a combination of primary and umbrella/excess liability insurance. Prior to the commencement of the Term, Licensee agrees to cause said Certificate of Insurance to be amended to reflect that it is the insured, and that the Licensor and the Licensor’s officers, members and employees are each primary, non-contributory additional insureds on said policy, but for the negligent acts and omissions of Licensee and for whom Licensee is responsible. B. Prior to execution of this License Agreement, Licensee shall furnish the Licensor with the above-described Certificate of Insurance, and applicable policy endorsements, executed by a duly authorized representative of each insurer, showing compliance with the insurance requirements set forth above. C. Failure of the Licensor to demand such certificate, endorsement, or other evidence of full compliance with these insurance requirements or failure of the Licensor to identify a deficiency from evidence that is provided shall not be construed as a waiver of any insurance obligations herein. D. The Licensor shall have the right, but not the obligation, of prohibiting the Licensee from using or occupying the Licensed Premises until such Certificates of Insurance are received by the Licensor. E. All Certificates of Insurance required herein shall also state that no cancellation of the insurance shall become effective until the expiration of thirty (30) days written notice thereof shall have been given by the insurance company to the Licensor via first class mail. F. With respect to liabilities of Licensee arising from this Agreement, all coverages required herein shall be primary insurance as respect the Licensor. Any insurance or self-insurance maintained by the Licensor, its officials, officers, employees, volunteers, and agents shall be in excess of insurance maintained by the Licensee and shall not contribute with said coverages/insurance. ===== PDF PAGE 42 ===== [Extraction: OCR (rendered-page OCR)] G. The Licensee agrees that all policies and/or coverages required by its contractors shall contain a “contractual liability” clause. H. Acceptability of Insurers — The Licensee shall require its contractors to be insured by insurance companies which obtain a rating from A.M. Best, that rating should be no less than A-VII using the most recent edition of the A.M. Best’s Key Rating Guide. All insurance required herein shall be placed with insurers licensed to do business in the State of Illinois and licensed by the Illinois Department of Insurance. 9. Renewal of License and Abandonment of Facilities. The plan and manner of execution or operation shall meet the approval of and be done to the satisfaction of the City Administrator or his authorized representative. Licensee shall own the Facilities and the lift station located on the Cascade Property. Any and all of the aforesaid Facilities shall be maintained by the Licensee at Licensee’s sole expense. If the Licensee wishes to abandon use of its Facilities under or pursuant to the License Agreement, or upon cancellation, revocation or termination of the privilege herein granted, Licensee shall notify Licensor and may permanently abandon the Facilities in place, subject to Licensor’s approval, which shall not be unreasonably withheld, conditioned, or delayed. 10. Termination of License Agreement. Licensor shall not terminate the License Agreement without good cause unless: i) Licensee is in default and has failed to cure the default; ii) Licensee has abandoned the Facilities in accordance with the terms of this License Agreement; or iii) Licensee has ceased permitted operations on the Cascade Property for a period of three years. 11. Protection of Vegetation. It is further agreed that no trees, or shrubs, shall be cut, trimmed or removed nor shall any building or utilities of the Licensor be disturbed without the written permission of the City Administrator or his authorized representative, whose permission shall not be unreasonably withheld, conditioned, or delayed. 12. Construction/Restoration of Property. The Licensee agrees that the installation of the Facilities will be performed without any trenching or open trenching, except as set forth in this License Agreement or as may otherwise be permitted by the City engineer. Said construction, installation and maintenance shall utilize directional bore installation under any City streets, parkways and right-of-way areas where necessary. All movement and storage of equipment and materials shall be confined to the area designated by the City Administrator or his authorized representative. All surplus excavated material shall be disposed of off the Licensed Premises. All trees, stumps, and other debris resulting from construction operations shall be disposed of off the Licensed Premises. Within thirty (30) days after construction operations have been completed, all areas disturbed by construction operations shall be graded and restored to their original contours and conditions. The backfill settlement repair period shall be for one (1) year from date of placing of said backfill, during which time the affected areas shall be maintained by the Contractor in a condition satisfactory to the Licensor. ===== PDF PAGE 43 ===== [Extraction: OCR (rendered-page OCR)] 13. Liability of the Licensor. It is further understood and agreed that the Licensor shall not be liable for any damages or injury to any person or property arising from, growing out of, or incident to the construction, operation, or maintenance of the aforesaid Facilities for which the license is issued, except if such damages or injury are the result of Licensor’s own intentional misconduct or negligence. 14. Indemnification. To the fullest extent permitted by law, both Parties shall indemnify and hold harmless the other Party and its officers, officials, employees, volunteers, trustees, beneficiaries, members, managers, and agents from and against all claims, damages, losses and expenses, including but not limited to legal fees (reasonable attorney and paralegal fees and court costs), arising from or in any way connected with (i) any act, omission, wrongful act or negligence of either Party or any of its officers, officials, employees, volunteers, trustees, beneficiaries, members, managers, and agents, contractors, subcontractors, vendors, or of anyone acting on behalf of the other Party; and (ii) any accident, injury, death or damage whatsoever occurring, growing out of incident to, or resulting directly or indirectly from either Party’s use of the Subject Property. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any Party or person described in this paragraph. Either Party’s indemnity obligations hereunder shall not apply to any injuries, claims, demands, judgments, damages, losses, or expenses arising out of or resulting from the negligence, misconduct, or breach of this section by the other Party, its officers, officials, employees, volunteers, trustees, beneficiaries, members, managers, agents, or representatives. In no event shall either Party be entitled to damages for lost profits, lost opportunity, or lost income arising from either Party’s performance under this License. This License Agreement is entered into for the sole benefit of the Parties hereto, and nothing in this License Agreement shall be construed as either expressly or indirectly extending, establishing, or acknowledging any rights or obligations in favor of third persons who are not signatures or beneficiaries to this License Agreement. 15. Supervision. The Licensee assumes and exercises full responsibility for the supervision of its employees, contractors, sub-contractors, suppliers, vendors, and/or agents during the term of this License Agreement. This paragraph is inserted solely for the benefit of the contracting Parties, and is not intended to establish, impose, or acknowledge any duty to supervise as to third parties. 16. Notice. All notices required shall be in writing and shall be given in the following manner: A. By personal delivery of such notice; or B. By mailing of such notice to the addresses recited herein by certified mail, postage pre-paid, return receipt requested. Except as otherwise provided herein, notice served by certified mail, shall be effective on the date of mailing; or C. By sending facsimile or email transmission. Notice shall be effective as of date and time of facsimile or email transmission, provided that the notice transmitted shall be ===== PDF PAGE 44 ===== [Extraction: OCR (rendered-page OCR)] sent on business days during business hours (9:00 A.M. to 4:30 P.M. Chicago time). In the event facsimile or email notice is transmitted during non-business hours, the effective date and time of notice is the first hour of the first business day after transmission; or D. By depositing such notice with a nationally recognized overnight courier. Notice shall be effective upon being deposited with the overnight courier. Any Party shall have the right to designate any other address for notice purposes by written notice to the other Party or his attorney in the manner aforesaid. The addresses of the Parties are as follows: If to Licensee: If to Licensor: Chicago Title Land Company, as Trustee of Michael Guttman, Trust Number 8002380575 City Administrator c/o Apercen Partners, LLC City of West Chicago 625 N. Michigan Avenue, Suite 650 475 Main Street Chicago, IL 60611 West Chicago, IL 60185 FAX: (630) 293-3028 mguttman@westchicago.org With a required copy to: With a required copy to: Russell G. Whitaker, III Patrick K. Bond, Esq. Rosanova & Whitaker, Ltd. Bond, Dickson & Conway 127 Aurora Avenue 400 South Knoll Street, Unit C Naperville, IL 60540 Wheaton, IL 60187-4557 russ@rw-attorneys.com FAX: (630) 352-3610 17. Prohibited Uses and Activities. The Parties agree to keep the Licensed Premises in a clean, safe, and sanitary condition. The Licensee further agrees that it shall abide by any and all applicable laws, ordinances, statutes and regulations of the County, the State of Illinois and the United States of America and enforcement and regulatory agencies thereof, which regulate or control the Licensee’s use of the Licensed Premises and/or Facilities. 18. Licensed Premises Disclaimer. The Licensee expressly acknowledges that the Licensor has made no representations or warranties, express or implied, as to the adequacy, fitness or condition of the Licensed Premises for the purposes set forth herein, or for any other purpose or use, express or implied, by the Licensee. ALL IMPLIED WARRANTIES OF QUALITY, FITNESS, MERCHANTABILITY AND HABITABILITY ARE HEREBY EXCLUDED. The Licensee accepts use of the Licensed Premises and any improvements thereon in “AS-IS” condition and “WITH ALL FAULTS”. The Licensee acknowledges that it has inspected the Licensed Premises and has satisfied itself as to the adequacy, fitness, and condition thereof. ===== PDF PAGE 45 ===== [Extraction: OCR (rendered-page OCR)] 19. Right to Relocate. If during the term of the License Agreement, the Licensor is required to perform any work on Licensed Premises, including but not limited to, improvements or reconstruction, or for any other reason, and in the reasonable judgment of Licensor such work necessitates relocation of the Licensee’s Facilities, the Licensee shall be solely responsible for relocating the Facilities thereon and shall be solely responsible for any and all costs associated therewith, except as provided by law where a third party may be responsible for the cost of such relocation, including, but not limited to situations of eminent domain, airport improvement, urban renewal, and/or public transportation projects. In the event Licensee is required to relocate its Facilities due to the construction of a public improvement, Licensor shall provide Licensee with notice at least one hundred twenty (120) days prior to any required action of Licensee to relocate its Facilities. Licensor shall cooperate with the Licensee to identify and approve alternative routing and construction methods for the relocation of its Facilities in the least disruptive and least costly manner possible. Said relocation shall be fully completed within one hundred eighty (180) days from the date of receipt of the Notice accompanied by a preliminary engineering design plan. In the event said relocation is delayed due to the fault of a third party, Licensee shall make a written request for an extension for the completion of said relocation. Provided Licensee uses all commercially reasonable measures to relocate the Facilities, the Licensor’s approval shall not be unreasonably withheld, conditioned, or delayed. 20. Right to Enter. The Licensor reserves the right to enter upon and repair any or all damage to areas surrounding the Licensed Premises, and if such damage is caused by Licensee, then the actual, reasonable, and documented cost of such repair will be the responsibility of Licensee. 21. Miscellaneous. A. The Parties agree that no change or modification to this License Agreement, or any exhibits or attachments hereto, shall be of any force or effect unless such amendment is dated, reduced to writing, executed by both Parties, and attached to and made a part of this License Agreement. B. The Parties agree that the titles of the items of this License Agreement, hereinabove set forth, are for convenience of identification only and shall not be considered for any other purpose. C. The Parties agree that if any provision of this License Agreement is held invalid for any reason whatsoever, the remaining provisions shall not be affected thereby if such remainder would then continue to conform to the purposes, terms, and requirements of applicable law. D. This License Agreement shall be construed, governed, and enforced according to the laws of the State of Illinois and any action to enforce this License Agreement may be brought in the Circuit Court for the Eighteenth Judicial Circuit, DuPage County, Illinois. LICENSEE, Chicago Title Land Company, as Trustee under the provisions of a certain Trust Agreement dated April 9, 2019 and known as Trust Number 8002380575, ===== PDF PAGE 46 ===== [Extraction: OCR (rendered-page OCR)] By: East North Avenue, LLC, the holder of the beneficial interest By: Apercen Partners, LLC, its Manager By: William Hartwig, Manager LICENSOR, City of West Chicago By: Ruben Pineda, Mayor City of West Chicago Attest: By: Nancy R. Smith, City Clerk City of West Chicago ===== PDF PAGE 47 ===== [Extraction: OCR (rendered-page OCR)] EXHIBIT “A" LEGAL DESCRIPTION ===== PDF PAGE 48 ===== [Extraction: OCR (rendered-page OCR)] EXHIBIT "B" FACILITIES PLAN ===== PDF PAGE 49 ===== [Extraction: OCR (rendered-page OCR)] EXHIBIT “C" CERTIFICATE OF INSURANCE