HomeMy WebLinkAbout98-237 I
JULY, 2007
IN REVIEWING THIS FILE, IT WAS DETERMINED THAT AN EXECUTED COPY
OF THE AGREEMENT LISTED BELOW WAS NEVER RETURNED TO THE
CLERK'S OFFICE.
ALL THAT IS AVAILABLE IS THE ATTACHED DRAFT COPY OF THE
AGREEMENT AND ITS SUPPORTING PAPERWORK.
REFERENCE: RESOLUTION NO. 98-237
PASSED: SEPTEMBER 23, 1998
SUBJECT: AGREEMENT WITH I &M RAIL LINK, L.L.C. FOR TYLER CREEK
INTERCEPTOR SEWER-PHASE V
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WilsonJones® WHITE—ORIGINAL CANARY—DUPLICATE 44-900•Duplicate
Resolution No. 98-237
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
I & M RAIL LINK, L.L.C.
(Tyler Creek Interceptor Sewer - Phase V)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Joyce A. Parker, City Manager, be and is hereby
authorized and directed to execute an agreement on behalf of
the City of Elgin with I & M Rail Link, L.L.C. for the purpose
of installing a sanitary sewer within the railroad right of way
for the Tyler Creek Interceptor Sewer - Phase V project, a copy
of which is attached hereto and made a part hereof by
reference.
s/ Kevin Kelly
Kevin Kelly, Mayor
Presented: September 23, 1998
Adopted: September 23, 1998
Omnibus Vote: Yeas 6 Nays 0
Attest:
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
y OF ES '
G —City of Elgin Agenda Item No.
n ^
September 4 , 1998
TO: Mayor and Members of the City Council
FROM: Joyce A. Parker, City Manager
SUBJECT: License Agreement with I & M Rail Link
Company Associated with the Tyler Creek Interceptor
Sewer - Phase V
PURPOSE
The purpose of the memorandum is to provide the Mayor and
members of the City Council with information to consider
executing a License Agreement with I & M Rail Link for the
purpose of installing a 36-inch sanitary sewer within their
right-of-way.
BACKGROUND
f Baxter & Woodman (B&W) is under contract with the City of
Elgin to provide engineering services for the completion of
plans and specifications for the Tyler Creek Interceptor
Sewer-Phase V (TCIS-V) . B&W, through their design investiga-
tions, has identified a location in which the TCIS-V must
cross beneath I & M Rail Link and Union Pacific rights-of-way.
On August 12 , 1998, the City Council adopted the resolution
authorizing the license agreement with Union Pacific . A map
(Exhibit A) is attached showing the location of the crossing.
B&W submitted a request to I & M Rail Link to cross their
right- of-way. I & M Rail Link has agreed to allow the instal-
lation of the TCIS-V within their right-of-way and forwarded
the license agreement to the City for our execution. Concern
has been expressed regarding the termination clause in these
crossing agreements . This clause is present in most agreements
where utilities are installed in another entity' s
right-of-way, including the City of Elgin' s right-of-way.
Staff did contact I & M Rail Link to see if the termination
clause could be eliminated or the notification time extended.
I & M Rail Link responded by allowing the notification period
to be extended from thirty (30) days to sixty (60) days but
they would not approve any other changes to the agreement . The
only way to serve property north and west of Tyler Creek and
Randall Road is to cross this rail line . A copy of the license
agreement is attached as Exhibit B for your consideration.
License Agreement with I & M Rail Link
September 4, 1998
Page 2
emb. Bids for this project were opened on May 6 , 1998 , with award
to Kenny Construction at the August 12, 1998 City Council
meeting. Construction is scheduled to begin in mid-September,
1998 with completion by the end of June, 1999 .
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None .
?IrtA./ FINANCIAL IMPACT
The cost of the license agreement is $475 . 00 . This expenditure
will be funded from account number 397-4200-795 . 92-41, project
number 339558 . In addition, an annual fee of $150 . 00 will be
charged as long as the agreement remains in effect and will be
included in future years ' budgets .
N000, LEGAL IMPACT
None .
ALTERNATIVES
1 . Approve the agreement as provided by I & M Rail Link.
2 . Request I & M Rail Link to consider additional changes to
the agreement . This will jeopardize the completion of the
TCIS-V project within the required time frame outlined in
the annexation agreement with IDI .
3 . Do not approve this agreement . Sewer service cannot be
provided north and west of Tyler Creek and Randall Road.
RECOMMENDATION
It is recommended that the City Council approve the license
agreement with I & M Rail Link and authorize the City Manager
to execute the agreement.
Respectfully subm' ed,
lilt
a. a.
3-11 e I . Parker
C y Manager
SP/do
Attachment
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EXHIBIT A
Location Map
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EXHIBIT B
License Agreement
1111X7 RAIL M MUNICIPAL PIPELINE ALONG OR ACROSS RAILROAD RIGHT OF WAY
PERMIT NO. 50,900,047
rim.4 52ELGIN
This AGREEMENT,made this 1st day of June , 19 98 ,wherein I&M RAIL LINK,LLC,a Delaware Limited Liability Company,hereinafter called
"Railroad",whose address is Property Management Division,PO Box 8182,Missoula,Montana,59807-8182,hereby grants permission to
CITY OF ELGIN
whose mailing address is 150 DEXTER CT
ELGIN, IL 60120-5555
hereinafter called "Permittee", to excavate for, construct, maintain and operate 36" sewer pipeline inside a 60" casing hereinafter
referred to as the"Facility",upon,along or across the right of way of Railroad,underneath the surface thereof,and under the tracks of its railroad,as the
case may be,at Milepost 40.5 ,Survey Station 2138+63 ,City of Elgin ;County of Kane ,State of Illinois ,as shown on the attached
plat,marked Exhibit"A",dated May 11, 1998 and made a part hereof.
Special Provisions The pipeline casing must extend across the entire right of way and the space between the
carrier pipe and the casing pipe must be entirely filled with concrete.
This permission is given upon the following terms and conditions:
1. RENTAL OBLIGATIONS:
a. _ Permittee will pay annually in advance to Railroad for this permit the sum of Four Hundred Seven Five Dollars
Dollars ($ 475.00 ) the first year and One Hundred Fifty Dollars ( 150.00 each year
thereafter and will pay all taxes and assessments that may be levied against the facility.
b. Railroad reserves the right to review the rental rate of this permit Railroad may make any necessary adjustments to the rate based
on Railroad's standard rate review policies in effect at the time of the review. Railroad will provide Permittee written notice of any
adjustment,within thirty(30)days of the review.Specifying a rental rate on a monthly,quarterly or annual basis and payment thereof
in advance does not imply nor will it serve to convert the permit to a definite term.
c. In case of nonpayment of rental,or other charges,the same shall,until paid,constitute a lien on any facility or other property owned
by Permittee on the Premises,foredosable according to law. Permittee shall not remove the facility or property until the rental,or
other charges are paid,unless directed to do so by Railroad.
d. Additions to or replacement of the Facility are subject to the prior written approval of Railroad. Railroad will, upon approval of
application for addition or replacement facilities,advise Permittee in writing of any change in payment on account of such additions or
replacements,and bills thereafter will be rendered accordingly.
2. RESERVATIONS BY RAILROAD:
a. Permittee,at Permittee's sole cost and expense,shall excavate for,construct,reconstruct,maintain and repair the Facility placing the
same in accordance with the specifications provided in application dated March 4. 1998 and approved by the Railroad's Chief
Engineer. If excavation is necessary, Permittee shall fill in the excavation and restore the surface of the ground to its previous
condition subject to the approval of the Railroad's Roadmaster. Furthermore, Permittee shall remove all false work and equipment
used in the installation,repair or removal of the Facility.
b. The Roadmaster shall have the right at any time when in the Roadmaster's judgment it becomes necessary or advisable,to require
any material used in the work to be replaced with like material or with material of a more permanent character.The Roadmaster may
require additional work or change of location of the Facility as a matter of safety,or of appearance,or on account of additional tracks
being laid, change of grade, construction of a facility, or for any other reason whether or not connected with the operation,
maintenance,or improvement of the railway of Railroad,all of which shall be done at the expense of Permittee in the manner herein
provided. All repairs and changes shall be made promptly by Permittee at its sole expense within thirty (30) days after being
requested to do so.
c. Permittee shall give the Roadmaster five(5)working days advance written notice of any work to be performed by Permittee in the
excavation, construction, any reconstruction, maintenance, repair, change of location or removal of the Facility. Permittee shall
conduct such work in such manner as not to interfere with the maintenance and operation of the railway. If there is a bona fide
emergency, the five (5)working days advance notice may be waived; however, if emergency work is necessary, Permittee shall
make every effort to notify Railroad that such work is to be performed.Permittee shall,at its own expense,restore any facilities on the
Premises which are in any manner disturbed by such maintenance,repairs or removal.
IMRL 1 3/98
d. If the Railroad,at the request of Permittee or any agent or contractor of Permittee,or for the protection of its property and operations,
does any work, furnishes any material or flagging service or incurs any expense whatsoever on account of the excavation for,
construction,reconstruction,maintenance,repair,change of location,removal of the Facility or otherwise, Permittee shall reimburse
Railroad for the cost thereof within twenty (20) days after bills are rendered. If the excavation for construction, reconstruction,
maintenance, repair, change of location, or removal of the Facility, requires any or all of the following work: removal and/or
replacement of track,bridging,protection of track or other railway facilities by work or flagging,engineering and/or supervision,such
work is to be performed by Railroad employees and the cost borne by Permittee.
e. Permittee hereby accepts Railroad's rights,and any others who have obtained or may obtain permission or authority from Railroad,to
(a) have unconditional access to any part of the Premises and to(b)construct, operate, maintain, renew and relocate any and all
existing or future pipe,power,and communication lines and appurtenances and other facilities of like character upon,over or under
the surface of the Premises;(c)construct,operate, maintain,renew and relocate such additional facilities;and (d)make such other
use of the surface as Railroad deems necessary and desirable for railroad purposes.
f. Nothing herein contained shall imply or import a covenant on the part of Railroad for quiet enjoyment,or imply any warranty of titre for
peaceable possession.
g. If any cathodic electrolysis or other electrical grounding system is installed in connection with the Facility which, in the opinion of
Railroad, in any way interferes with any train signals, telephone or telegraph lines, or other facilities of Railroad, or its other
permittees.Permittee upon being informed by Railroad of such interference shall discontinue operation of and remove the grounding
system,or take such steps as may be necessary to avoid and eliminate all such interference.The cost of any additions or removals
of the grounding systems shall be borne solely by the Permittee.If the Railroad determines there is any interference covered by this
paragraph that affects the safety of Railroad's operations,Permittee shall,upon notice from Railroad,cease using the Facility for any
purpose whatsoever. Railroad may also require that the Facility be removed. In addition, Railroad may require any other protective
measures as Railroad may deem advisable until the protective devices required by this paragraph have been installed, put in
operation,tested,and found to be satisfactory to correct the interference. Permittee further agrees to indemnify and save harmless
Railroad from and against any damages,daims,losses,suits or expenses in any manner arising from or growing out of interference
with the signals,telephone or telegraph lines of Railroad by the operations,use or existence of any such grounding system.
3. ASSUMPTION OF LIABILITIES:
a. It is understood by Permittee that the Premises are in dangerous proximity to railroad tracks and that persons and property on the
Premises will be in danger of injury,death or destruction incident to the operation of the railroad,induding,without limitation,the risk
of derailment, fire, or inadequate clearance (including sight dearance or vision obstruction problems at grade crossings on or
adjacent to the Premises), and Permittee accepts this Permit subject to such dangers. Permittee agrees that the construction,
operations,maintenance,use or removal of the Facility shall not damage the railroad or structures of Railroad or any other property
upon the Premises of Railroad, or be a menace to the safety of Railroad's operations or any other operations conducted on the
Premises.
b. As a material consideration of this Permit,without which it would not be granted, Permittee agrees,to the fullest extent provided by
law,to release Railroad,and to defend,indemnify and hold Railroad harmless from and against any liability,daim,cost or damage on
account of personal injury to or death of any persons whomsoever, or damage to or destruction of property to whomsoever
belonging,without regard to whether it was caused in part by Railroad or by defective trackage, equipment, or track structures.
Nothing herein obligates Permittee to indemnify Railroad for Railroad's negligent acts or willful misconduct However,Permittee shall
be required to indemnify Railroad for any negligence attributed to Permittee's use or occupation of the premises.
c. Permittee shall not create or permit any condition on the Premises that could present a threat to human health or to the environment
Permittee shall release, defend, indemnify and hold harmless Railroad from and against any suit, cause of action, daim, costs or
obligations with respect to any environmental condition (induding,without limitation, conditions of groundwater, soil, surface water
and air)and/or any damages alleged(i)to arise from,or be related(in any way)to Permittee's tenancy,or(ii)to have been caused,in
whole or in part,by Permittee's presence on and use of the Premises or Permittee's violation of any laws,ordinances,regulations or
requirements pertaining to solid or other wastes,weeds, chemicals, oil and gas, toxic, corrosive, or hazardous materials,air,water
(surface or groundwater)or noise pollution,and the storage, handling,use or disposal of any such material. In connection with its
obligations under this Permit,Permittee shall also give Railroad timely notice of all measures undertaken by or on behalf of Permittee
to investigate,remediate, respond to or otherwise cure any environmental condition,release or violation. If Railroad receives notice
from Permittee or otherwise of a release,violation of environmental laws,or of an environmental condition(which in Railroad's sole
discretion requires a response)which occurred or is occurring during the term of this Permit, Railroad may require Permittee, at
Permittee's sole expense, to take timely measures to investigate, remediate, respond to, or otherwise cure such release,
environmental condition or violation regardless of the nature or cause of the release,environmental condition or violation. Permittee
expressly agrees that the obligations to release,defend,indemnify and hold harmless it hereby assumes shall survive termination of
this Permit,and that statutory limitation terms on actions to enforce these obligations shall not be deemed to commence until Railroad
discovers any such environmental condition, health or environmental impairment, and Permittee hereby knowingly and voluntarily
waives the benefits of any shorter limitation term.
IMRL 2 3/98
d. The obligations of Permittee to release,defend,indemnify,and hold harmless Railroad shall apply to any suit,cause of action,daim,
cost or obligation induding, without limitation, those alleged under the common law or pursuant to a federal or state statute or
regulation such as those arising in tort, trespass, nuisance, and strict liability, and those asserted pursuant to the Resource
Conservation and Recovery Act,42 USC§6901 et§N.,the Comprehensive Environmental Response,Compensation and Liability
Act,42 USC§9601 et seg.,the Clean Water Act,33 USC§§1251 et IN.,and any other applicable state and federal law.Each as
hereafter amended.
e. Permittee agrees that the construction,operation,maintenance,use or removal of the Facility shall not damage the railroad or struc-
tures of Railroad,or any other property induding property of any lessee or permittee upon the premises of Railroad,or be a menace
to the safety of Railroad's operations or any other operations conducted on the premises.
4. EQUAL PROTECTION: It is agreed that the provisions of this agreement are for the equal protection of other railroad companies, including
National Railroad Passenger Corporation(AMTRAK),permitted to use Railroad's property.
5. DEFAULT: If Permittee shall default on any covenant or agreement herein assumed,and such default shall not be remedied or corrected within
thirty(30)days after written notice by Railroad to Permittee of such default,this Permit shall terminate without further notice. Any waiver by
Railroad of any default shall not be construed as a waiver of any subsequent default. While such default continues Permittee shall not remove
from said Premises any facility or other property owned by Permittee unless directed to do so by Railroad,and shall remain subject to all terms
and conditions contained herein.
6. TERMINATION:
a. Notwithstanding any requirement herein for payment of rental in advance for a term in excesso m it is further agreed that
ie
either party may terminate this Permit at any time upon giving the other party not less than (30raaayys written notice of such
termination. Rent shall be paid by Permittee until a final inspection has been made by Railroad approving the condition of the
Premises. If this Permit is terminated, Permittee,shall, prior to the termination date, remove Permittee's property and any existing
improvements(regardless of who made them)from the Premises. If Permittee fails to do so, Permittee hereby grants Railroad the
absolute right to remove the property at the cost of Permittee,or keep,convey,destroy,or otherwise dispose of the property in any
way Railroad chooses and,in addition,Permittee agrees to pay any net cost incurred by Railroad in doing so.
b. Except as otherwise provided in Sections 1c and 5 hereof, before the Permit expires, Permittee shall, at its own sole cost and
expense, remove and cause to be removed all facilities, structures,foundations, footings, materials, signs or signboards, debris or
other articles or facilities owned or used by Permittee or placed on,above or below the surface of the Premises by Permittee or by
any person,firm or corporation,or former Permittee. Permittee agrees to restore and level the Premises to a condition satisfactory to
Railroad.
c. It is expressly understood by Permittee that until such time as the Premises are surrendered to Railroad free and dear of all facilities,
structures,foundations,footings,materials,signs or signboards,debris or other articles or facilities not belonging to Railroad,and the
Premises are restored to a neat and orderly condition satisfactory to Railroad,Permittee shall be liable to Railroad for such rental,as
determined by Railroad.Permittee shall also be liable to Railroad for any and all losses and/or damages which Railroad may sustain
or become liable for as a result of Permittee's failure to restore the Premises to a neat and orderly condition satisfactory to Railroad.
Railroad may at its own sole election dispose of any such property or improvements as provided in Section 6a above.
7. ASSIGNMENT OF PERMIT:
a. Without the prior written consent of Railroad,Permittee shall not assign or sublet this Permit or any interest therein,or grant a security
interest in any facilities or improvements on the Premises, and no heir, personal representative, administrator, receiver, master,
sheriff,trustee in bankruptcy,or other assignee by operation of law shall assign or sublet without such written consent.
b. If this Permit is assigned, Railroad will credit all unearned rental hereunder to the assignee, unless advised otherwise. Any other
disposition of unearned rental will be made by Railroad only upon the joint written request to both Permittee and Permittee's assignee
at the time the assignment is submitted to Railroad for its consent
8. NOTICE REQUIREMENT: All notices hereunder to be given by Railroad to Permittee may be given by letter from Railroad or its agents or
attorney and forwarded by Certified Mail, Return Receipt Requested,postage prepaid,addressed to Permittee at Permittee's mailing address
above stated or at such address as Permittee may later give Railroad in writing. All notices hereunder to be given by Permittee to Railroad may
be given by letter from Permittee or Permittee agent or attorney and forwarded by Certified Mail,Return Receipt Requested,postage prepaid,
addressed to Railroad's Property Management Division,PO Box 8182,Missoula,Montana,59807-8182.
COMPLIANCE WITH FIRE STANDARDS: Permittee must obtain Railroad's written consent to use Premises for loading,unloading or storing
hazardous materials as defined in 49 CFR parts 171 through 179 and identified in Tariff BOE 6000 M and subsequent issues.Permittee agrees
to comply strictly with the standards of the National Board of Fire Underwriters as recommended by the National Fire Protection Association,as
well as any applicable federal,state,or municipal regulations and laws,and shall also comply strictly with the provisions,if applicable,of"Rules
Governing the Location, Maintenance and Operation of Facilities for Handling Flammable and Nonflammable Gases," hereto attached as
Exhibit"B"and by this reference made a part of this Permit For the purpose of providing protection from stray currents or static electricity,or to
IMRL 3 3/98
prevent interference with existing signaling Railroad may install bonding in the track serving the Premises, and Permittee shall reimburse
Railroad for the cost thereof. Track bonding is required on Spur Lines used for loading or unloading flammable liquids at the location of the
loading or unloading activity.
,�. INSURANCE COVERAGE must be provided as follows:
a. Permittee agrees to obtain, to keep in force and effect, and to pay premiums on worker's compensation insurance for those of its
employees who are concerned in any way with Permittee's performance under this permit.
•
b. Whenever construction, demolition and/or any other repair operations occur within fifty (50) feet of any railroad track, a separate
railroad protective policy,written in the name of I&M Rail Link,LLC and the Burlington Northern And Santa Fe Railway Company,is
required with limits of$2,000,000 per occurrence and $6,000,000 aggregate. The policy must be submitted to the Railroad and
approved in advance of any activity on Railroad property.
c. Any party performing any work related to this permit shall have a copy of the permit at the designated job site.
d. The furnishing of insurance required by this Agreement shall in no way limit or diminish the liability or responsibility of Permittee as
provided under any section of the Agreement
11. MISCELLANEOUS PROVISIONS:
a. The parties warrant and represent that the party signing this agreement on behalf of each has authority to enter into this agreement
and to themselves be bound respectively, to the terms,covenants and conditions contained herein. Each party shall deliver to the
other,upon request,all documents reasonably requested by the other evidencing such authority,including a copy of any corporate or
partnership resolutions,consents or minutes reflecting the authority of persons or parties to enter into agreements on behalf of such
party.
b. All of the indemnities and assumption of liabilities and the obligations of Permittee under Section 3 above, shall survive any
termination of this permit
c. If any term or provision of this agreement or the application thereof to any person or circumstance shall,to any extent,be invalid or
unenforceable,the remainder of this agreement or the application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable,shall not be affected thereby and each term and provision shall be valid and be
enforced to the fullest extent permitted by law.A waiver of any right to enforce any provision of this permit in one instance shall not be
deemed to be a waiver of any future right to enforce any provision hereof.
d. If either party takes legal action to enforce any term of this agreement,the prevailinc party shall be entitled to recover its reasonable
attorney fees and all costs associated with the action.
e. All questions regarding the interpretation or application of provisions of this Permit shall be decided by a court of competent
jurisdiction and according to the laws of the State where the property is located.
Subject to the foregoing provisions,this agreement and all of the covenants and promises thereof, shall inure to the benefit of and be binding upon the
parties hereto,their respective personal representatives administrators,successors and assigns.
The parties hereto have executed this agreement the day and year first above written.
I&M RAIL LINK,LLC
By
Titre Property Development Manager
PERMITTEE
CITY OF ELGIN
By
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IMRL 4 3/98
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"EXHIBIT A"
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