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HomeMy WebLinkAbout98-242 JULY, 2007 IN REVIEWING THIS FILE, IT WAS DETERMINED HAT AN EXECUTED COPY OF THE AGREEMENT LISTED BELOW WAS NEVE ' RETURNED TO THE CLERK'S OFFICE. ALL THAT IS AVAILABLE IS THE ATTACHED DRA COPY OF THE AGREEMENT AND ITS SUPPORTING PAPERWORK REFERENCE: RESOLUTION NO. 98-242 PASSED: SEPTEMBER 23, 1998 SUBJECT: AGREEMENT WITH THE COMMU ER RAIL DIVISION OF THE REGIONAL TRANSPORTATION A THORITY FOR A WIRELINE EASEMENT FOR THE HIGHLAND AVENUE CBD LIGHTING PROJECT SPEED MESSAGE TO FROM -.e.1 .:;.' , . SUBJECT etaiPirLititAe--7 (5,44g-w,. C4t9 ".'"17,4"ty it(--7,a / A, ,-'/-.7, .- i /. ,1 ,,....., .._ „IA . f I .. :Ne_,Q.G.,.--.,—0 /4.L-,z, i'''' ''-v (r.,,&z,641" col 1 ki 4:2.,--w„-...--6..., ...::::,L'-c.,-,-, 4 4 • , 1 I 1 -'('1''4-6 1 r - (e - 1 ICJI7 ' ) C 0.2 - ''' e.:"...Ct.,,..'s.14,,' C.c .." 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C - 11 emk Resolution No. 98-242 RESOLUTION AUTHORIZING EXECUTION AND ACCEPTANCE IAF A WIRELINE EASEMENT FOR THE HIGHLAND AVENUE CBD LI'HTING PROJECT (Commuter Rail Division of the Regional Transportation A thority) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Kevin Kelly, Mayor, an• Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute and accept a Wireline Easement for she construction and installation of conduit and electrical wire for the Highland Avenue CBD lighting project from the Co uter Rail Division of the Regional Transportation Authority ov-r the property legally described on the Wireline Easement Agr-ement attached hereto and made a part hereof. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the E.sement Agreement to be recorded in the office of the Recorder of Deeds of Kane County, Illinois . Kevin K-lly, Mayor Presented: September 23, 1998 Adopted: Vote: Yeas Nays Recorded: Attest: Dolonna Mecum, City Clerk WIRELINE EASEMENT AGREEMENT THIS AGREEMENT is entered into by and between the Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation("Metra"), and City of Elgin a corporation of Illinois with offices located at 150 Dexter Court, Elgin, Illinois 60119 ("Grantee"). Metra and Grantee are hereinafter sometimes individually referred to as a "Party" and jointly referred to as the "Parties". NOW,THEREFORE, for and in consideration of payments to be made to Metra by Grantee, as hereinafter set forth, and also of the covenants and agreements hereinafter stated, Metra hereby grants to Grantee an easement("Easement")to construct and install across, underneath or along that portion of Metra's right of way and tracks (or track, as the case may be) delineated on the plat attached to and made a part of this Agreement as Exhibit "A" ("Premises"), a 3" steel conduit consisting of wires strung separately or contained in a cable or conduit, which shall carry electric current no greater than 120 volts, together with the necessary poles, crossarms, guy wires, braces, conduits or other fixtures appurtenant thereto(collectively the"Wireline"), and thereafter to maintain, repair, operate and renew the same during the continuance of this Easement. This Easement is granted upon the following express conditions, terms and covenants to be observed, kept and performed by Grantee: 1. (a) As one of the considerations for this Easement, Grantee agrees to pay to Metra the sum of$600.00 for the cost of preparing this Easement, payable in advance. 4.11) Wvdine.Emt:August 12,1998 1 2. Said Wireline shall be constructed in accordance with the specifications and notes set forth on Exhibit "A". The installation of said Wireline, includi g but not limited to the digging and filling of any trench and the time and manner of doing all of the ork or of any maintenance, repairs, replacements or renewals upon the Premises, shall be as direct-d by Metra's authorized representa- tives. Grantee agrees to construct and at all times maintain the ireline so as to protect all electrical features(whether or not connected with communication or si: al facilities) on the Premises, or any other Metra property, or any electrical facilities which Metra m.y hereafter construct or permit to be constructed thereon, from any induced, foreign or return vo ages and currents and Grantee shall make such changes in the construction of its own electrical features as are necessitated by such foreign or return currents as is from time to time required by etra. All of said work shall be done at Grantee's sole cost and expense, in a good and workmanlik- manner, and in accordance with the requirements of the National Electrical Safety Code and the p ans, specifications, and profiles to be prepared by Grantee and submitted for approval to Metra's . thorized representative(s), and until such approval is given, said work shall not be commenced by Grantee. 3. Upon completion of the initial construction of he Wireline, and upon completion of any subsequent reconstruction, replacement, repair or mainten: ce of the Wireline subsequent to its construction, Grantee, at its own cost and expense, shall remo e any debris and restore, or cause to be restored to the reasonable satisfaction of Metra, the Pre ses and any other affected portion of Metra's property ("Property") as nearly as may be, to the sa e or better condition than that which existed immediately prior to commencement of such activities u y Grantee. In the event Grantee fails to cause the Premises and the Property to be restored to t e reasonable satisfaction of Metra as provided for herein,Metra shall have the right to restore the Pr:mises and Property and Grantee shall reimburse Metra for all costs and expenses incurred by Metr: in its performance of the obligations imposed upon Grantee hereunder. 4. Metra shall permit Grantee reasonable right of.ccess to the Premises for the purpose of constructing, replacing, repairing, maintaining and operat. g said Wireline. 5. Any rights to the Premises not specifically gr. ted to Grantee herein are reserved to Metra and its successors and/or assigns. The Wireline shall be constructed, repaired, maintained and operated in a manner so as not to interfere with efficient rail operations or any other business operations or activities being conducted by Metra or Metra' tenants or permittees on the Premises and so as not to prevent or unreasonably interfere with use an. enjoyment of the Premises by Metra, its employees,agents or permittees for the purpose(s)to whic the Premises is now, or may hereafter be, committed by Metra. Metra shall have the right t• retain the existing tracks and other improvements at the location of this Wireline on or adjacent o the Premises and also shall have the right at any and all times in the future to construct, maint.in and operate over, under, across or parallel to said Wireline such additional track or tracks as it may from time to time elect. Nothing shall be done or caused to be done by Grantee that will in any manner impair the usefulness or safety of the tracks and other improvements of Metra, or such trabk or tracks and other improvements as Metra may in the future construct or cause to be constructel over, under, across, or parallel to said Wireline. This Easement is expressly subject to the rights oft ird parties to maintain utility and other Wirehne.Emt:August 12,1998 2 improvements permitted by Metra on the Premises and the Property. Metra reserves the exclusive right to grant future easements over, under, across or parallel to the said Wireline. 6. Grantee agrees that it will bear and pay the entire cost of constructing, maintaining, repairing, replacing and operating said Wireline. 7. Grantee shall not place, keep, store or otherwise permit to be placed, kept or stored on the Premises or the Property any equipment or materials except during such time as Grantee's employees, agents or contractors are physically present and conducting activities permitted under the terms of this Easement. Grantee agrees that it shall not operate or cause to be operated any vehicle of any kind on the Premises, on any track or on the Property without prior authorization from Metra's authorized representative; provided, however, that Grantee shall not be prohibited from operating Grantee's vehicles and equipment on any public crossing of Metra's tracks and rights of way. If deemed necessary by Metra, a flagman will be provided by Metra, the cost of such services to be paid by Grantee. 8. Grantee agrees that it will, immediately upon receipt of a statement showing the amount thereof, pay all costs of any and all work performed upon the right of way and tracks of Metra which shall be made necessary by the construction, maintenance, repair, replacement, renewal or presence thereon of said Wireline. 9. Grantee shall give to Metra reasonable advance written notice of the time when Grantee will commence any construction, replacement,repair or maintenance of said Wireline in order that Metra may, if it so desires, have its representative(s) present for the purpose of directing said work so that the same may be done in a manner satisfactory to Metra. 10. Grantee agrees that before and during the construction, replacement, repair, maintenance or operation of said Wireline, or at any other time, Metra shall have the right to provide such safe and temporary structures as it may deem necessary for safely caring for and preserving its tracks,buildings or other improvements and Grantee agrees to pay to Metra the entire cost of putting in or removing such temporary structures and of restoring the Premises and Property as near as may be to the same condition that existed before the commencement of said work. 11. Grantee agrees that should the construction, maintenance, operation, repair or presence of the Wireline necessitate any change or alteration in the location or arrangement of any other wires, appurtenances or other improvements located on the Premises or the Property, the cost of such change or alteration shall be paid by Grantee within thirty(30) days of presentation of a bill by Metra. Grantee further agrees that if, at any time, Metra shall desire to change the location or grade of its track or tracks or shall desire to use or allow third party railroads to use its right of way at said point of crossing or at any point along a parallel course with the Wireline for any purpose whatsoever, including but not limited to track installations by Metra or third parties, Grantee, at its own cost and expense, shall alter, relocate or make all changes to the Wireline required by Metra. If Grantee shall fail, neglect or refuse to relocate or make such change(s) to the Wireline for a period of ninety(90)days after the receipt of written notice from Metra, then Metra may make or cause to 4111) Wueline.Emt:August 12,1998 3 be made such relocation or change(s) at the expense of Granter. 12. Grantee shall at all times construct,replace,repair maintain and operate said Wireline in a secure, safe and sanitary condition and in accordance with . 1 applicable laws, ordinances, rules and regulations. Grantee shall take all reasonable safety pr-cautions to adequately secure the Premises, warn of risks and ensure the safety of the pub c during periods of construction, reconstruction, replacement, repair, maintenance and operati.n of the Wireline. If the manner of constructing, repairing, maintaining, replacing or operating :'d Wireline shall at any time be in violation of any applicable law, rule, regulation or ordinance, th-n Grantee, at no cost or expense to Metra and upon receipt of appropriate notice from a gove ental agency having enforcement jurisdiction over the Premises, shall make such changes or rep:'rs as shall be necessary. Failure or refusal of Grantee to make the required changes or repairs wit the time prescribed by said agency shall terminate this Easement, provided that it shall not termi ate as long as Grantee, in good faith and by pursuit of appropriate legal or equitable remedies, enjo ns, defends against, appeals from or pursues other lawful measures to avoid the enforcement of said .ws, ordinances, rules or regulations. 13. To the fullest extent permitted by law, Grantee -reby assumes and agrees to release, acquit and waive any rights against and forever discharge etra, the Regional Transportation Authority ("RTA") and the Northeast Illinois Regional Commuter Railroad Corporation ("NIRCRC"), their respective directors, administrators, offi ers, employees, agents, successors, assigns and all other persons, firms and corporations acting 'th or upon their authority from and r"'' against any and all claims, demands or liabilities imposed up.n them by law or otherwise of every kind, nature and character on account of personal injuries, ncluding death at any time resulting therefrom, and on account of damage to or destruction of •roperty arising from any accident or incident which may occur to or be incurred by Grantee, its e .loyees, officers, agents and all other persons acting on its behalf while on the Premises or the Pro•erty, whether or not such injuries or damages are caused by the actions, omissions or negligence of Metra, the RTA or the NIRCRC. Notwithstanding anything in this Easement to the contrary, the eleases and waivers contained in this paragraph shall survive termination of this Easement. 14. To the fullest extent permitted by law, Grantee agrees to indemnify, defend and hold harmless Metra, the RTA and the NIRCRC, their respective dire ors, administrators, officers, agents and employees, from and against any and all injuries, liabilities, losses, damages, costs, payments and expenses of every kind and nature (including court costs an' attorneys' fees) as a result of claims, demands, actions, suits, proceedings,judgments or settlement., arising out of or in any way relating to or occurring in connection with Grantee's use of or the co dition of the Premises whether or not such injuries, liabilities, losses, damages, costs, payments o expenses are caused by the actions, omissions or negligence of Metra, the RTA or the NIRCR . Metra agrees to notify Grantee in writing within a reasonable time of any claim of which it bec.mes aware which may fall within this indemnity provision. Grantee further agrees to defend Metra,t e RTA, the NTRCRC, their respective directors, administrators, officers, agents and employees against any claims, suits, actions or proceedings filed against any of them with respect to the subj-ct matter of this indemnity provision, whether such claims, suits, actions or proceedings are ri. htfully or wrongfully made or filed; provided, however, that Metra, the RTA and the NIRCRC, may elect to participate in the defense Wirehne.Emt August 12,1998 4 41)thereof at their own expense or may, at their own expense, employ attorneys of their own selection to appear and defend the same on behalf of Metra, the RTA, the NIRCRC, and their respective directors, administrators,officers, agents or employees. Grantee shall not enter into any compromise, or settlement of any such claims, suits, actions or proceedings without the consent of Metra, the RTA and the NIRCRC, which consent shall not be unreasonably withheld. Notwithstanding anything to the contrary contained in this Agreement, the indemnities contained in this paragraph shall survive termination of this Easement and the indemnification and hold harmless provisions set forth in this Agreement shall not be construed as an indemnification or hold harmless against and from the negligence of Metra,the RTA or the NIRCRC with respect to any construction work performed by Grantee or those performing on behalf of or with the authority of Grantee in violation of the Illinois Construction Contract Indemnification for Negligence Act. 15. Prior to commencement of any work to be performed on or about the Premises under the terms of this Easement, Grantee shall purchase or shall require its contractor(s) and/or sub- contractor(s)to purchase the following insurance coverage. The total cost of the premium for such insurance shall be at the expense of Grantee or its contractors and/or sub-contractor(s): (a) Comprehensive General Liability Insurance (ISO Form). Grantee or contractor shall furnish evidence that,with respect to the operations it performs and the operations performed by sub-contractors, it carries regular Comprehensive General Liability Insurance providing for a limit of not less than $2,000,000 single limit, bodily injury AI and/or property damage combined, for damages arising out of bodily injuries to or death of any person or destruction of property, including the loss of use thereof, in any one occurrence under the terms of which Metra, the RTA, the NIRCRC, METRA/Metropolitan Rail and any other railroads operating on Metra property are named as an additional insured. (b) Railroad's Protective Liability Insurance. In addition to the above, Grantee or contractor shall furnish evidence, with respect to the operations it or any of its sub-contractors perform, that it has provided Railroad Protective Public Liability Insurance (AAR-AASHTO form) in the name of Metra, the RTA, the NIRCRC,METRA/Metropolitan Rail and any other railroads operating on Metra property providing for a limit of not less than $2,000,000 single limit, bodily injury and/or property damage combined, for damages arising out of bodily injuries to or death of any person in any one occurrence and for damage to or destruction of property, including the loss of use thereof, in any one occurrence. Such insurance shall be furnished with an aggregate of not less than $6,000,000 for all damages as a result of more than one occurrence. (c) Workers' Compensation Insurance Grantee or contractor shall furnish evidence that, with respect to the operations it performs, it carries a policy complying with the statutes of the State of Illinois covering all %%ra e.Emt.August 12,1998 5 rk employees of the Grantee or contractor, as applicable. The p•licy shall contain employers liability coverage with limits of not less than $100,000 each accident; $ 00,000 each employee disease; and $500,000 policy limit-disease. (d) Automobile Liability Insurance. Grantee or contractor shall furnish evide ce that, with respect to the operations it performs, it carries a policy issued to and covering the liab lity of Grantee or the contractor, as applicable,arising out of the use of all owned, non-owned, hired, rented or leased vehicles which bear or are required to bear license plates according to the laws of e State of Illinois and which are not covered under the Comprehensive General Liability Insurance. overage under this policy shall have limits of liability of not less than $2,000,000 per occurrence, c•mbined single limit, for bodily injury and property damage liability. The insurance hereinabove specified shall be carried until all ork required to be performed under the terms of this Easement is satisfactorily completed and form. ly accepted. Failure to carry or keep such insurance in force until all work is satisfactorily compl; ed shall constitute a violation of the Easement. Grantee or contractor shall furnish to Metra signe. copies of the policy for Comprehen- sive General Liability and the original of the AAR-AASHTO •olicy for Railroad's Protective Public Liability Insurance. If any work is sub-contracted, Grantee or ontractor shall furnish a signed copy of the policy for Comprehensive General Liability Insurance. rib.* 16. This Easement may be terminated by Metra effective immediately upon notice to Grantee if the Premises, or any portion thereof, is needed '.r any Metra or railroad purposes as determined by Metra in its sole discretion or Grantee ceases o operate or maintain the Wireline or violates any of the terms,conditions or provisions set forth in I 's Easement. In case of termination, Grantee shall remove from the Premises said Wireline and s . restore said Premises to the same or better condition than that which existed prior to the constru ion and installation of said Wireline; or upon failure, neglect or refusal of Grantee to do so, Met: may make or cause to be made such removal and restoration, and the total cost hereof shall be paid •y Grantee; or, if Metra shall so elect, it may treat the said Wireline as abandoned by Grantee and ay make such disposition thereof as it may see fit. 17. This Easement and all of the terms, conditions, 'ghts and obligations herein contained shall inure to and be binding upon the Parties, their res•ective legal representatives, lessees, permittees, successors and/or assigns whether hereinabove so tated or not; but it is distinctly agreed that Grantee shall not assign its rights under this Easement 'thout first having received the prior written consent of Metra. 18. All payments required to be made by Grante- to Metra under the terms, conditions or provisions of this Easement shall be made within sixty (60) days of Grantee's receipt of any demand or invoice from Metra evidencing the amount of the ndebtedness due. Payments not made within said sixty(60) day period shall accrue interest at a rat- of one and one half percent (1 1/2%) Wfreline.Emt:August 12,1998 6 • • per month or the highest amount permitted by Illinois law, whichever is less, from the date payment is due until paid. 19. All notices, demands and elections required or permitted to be given or made by either Party upon the other under the terms of this Easement or any statute shall be in writing. Such communications shall be deemed to have been sufficiently served if sent by certified or registered mail, return receipt requested,with proper postage prepaid, facsimile transmission or hand delivered to the respective addresses shown below or to such other party or address as either Party may from time to time furnish to the other in writing. Such notices, demands, elections and other instruments shall be considered delivered to recipient on the second business day after deposit in the U.S. Mail, on the day of successful transmission if sent by facsimile transmission or on the day of delivery if hand delivered. (a) Notices to Metra shall be sent to: Commuter Rail Division 547 W. Jackson Boulevard Chicago, Illinois 60661 Attn: Director, Real Estate& Contract Management Phone: (312) 322-8010 Fax: (312) 322-4288 (b) Notices to Grantee shall be sent to: City of Elgin 150 Dexter Court Elgin, Illinois 60119 Phone: Fax: 20. This Agreement shall be governed by the internal laws of the State of Illinois. If any provision of this Agreement, or any paragraph, sentence, clause, phrase or word or the application thereof is held invalid, the remainder of this Agreement shall be construed as if such invalid part were never included and this Agreement shall be and remain valid and enforceable to the fullest extent permitted by law provided that the Agreement, in its entirety as so reconstituted, does not represent a material change to the rights or obligations of either of the Parties. No waiver of any obligation or default of Grantee shall be implied from omission by Metra to take any action on account of such obligation or default and no express waiver shall affect any obligation or default other than the obligation or default specified in the express waiver and then only for the time and to the extent therein stated. Whenever the context requires or permits, the singular shall include the plural, the plural shall include the singular and the masculine, feminine and neuter shall be freely interchangeable. In the event the time for performance hereunder falls on a Saturday, Sunday or holiday, the actual Wueline.Emt August 12,1998 7 time for performance shall be the next business day. This Ease -nt constitutes the entire agreement between the Parties with respect to the subject matter hereof. IN WITNESS WHEREOF, the Parties hereto have d y executed this Easement as of this day of , 199' ATTEST: COMM TER RAIL DIVISION OF THE REGIO AL TRANSPORTATION AUTH I RITY: By: Assistant Secretary Philip A Pagano Executi e Director ATTEST: CITY IF ELGIN By: By: Its: Its: c:/I&e-ewllelgin.emUdlf wireVume.Emt:August 12,1998 8 C C C `fit OFF. F F.c/ Vsc- , �1. t f ,> S k City of Elgin Agenda Item No. 1 °4'+rrnc '' September 3, 1998 TO: Mayor and Members of the City Co ncil FROM: Joyce A. Parker, City Manager SUBJECT: Wireline Easement Agreement wit METRA Associated with the Highland Avenue CBD Li•hting Project PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with info mation to consider executing a Wireline Easement Agreement with METRA for the purpose of installing a 3-inch conduit and electrical wire within their right-of-way. BACKGROUND (lek. The City Council, at its April 8, 1998 eeting, awarded the contract to Utility Dynamics Corp. for the Highland Avenue CBD Lighting Project. The project includes the installation of ornamental lighting and removal and replacement of deteriorat- ed sidewalks . The project is currently under construction, with an anticipated completion by earl October. A project location map is attached as Exhibit A. In order to energize the new lights installed west of METRA' s railroad tracks on Highland Avenue, a 3-inch conduit and electrical wire needs to be placed unde their tracks . METRA has agreed to allow this installation a d has forwarded the agreement for our execution. A similar a'reement was approved with METRA by the City Council in 1996 f.r a conduit crossing on Chicago Street. A copy of the Wireli e Easement Agreement is attached as Exhibit B. COMMUNITY GROUPS/INTERESTED PERSONS CONT• CTED None . , )-ppINANCIAL IMPACT The cost of the Wireline Easement agree ent is $600 . 00 . This L.7 expenditure will be funded fro account number 376-1000-795 . 93-80, project number 33400 . ;41/ LEGAL IMPACT None . C L L Highland Avenue CBD Lighting Project September 4, 1998 Page 2 ALTERNATIVES None . RECOMMENDATION It is recommended that the City Council approve the Wireline Crossing Easement with METRA and authoriz= the City Manager to execute the agreement at a total cost of 600 . 00 . - - •ectiully submi d, 62 , tairst-----/ Joie e A ' Parker City Manager SP/do Attachments c. EXHIBI I A Location Ma . L c. I I L I . l I l ( I / Cs%) i/NORTH ST, 11 • o imI . ( OPARK ST. CO C • . \ r.,\ \ V 0 \ I DEXTER AVE. 1 DIVISION ST, 0 \ \ 11Z HIGHLAND AVE. 1 COL ;it: vz' n Z Iy < '` � -iA - ilk .... , . 'I V _11 � Iti! � FwNlAT ' 11: NSti . r t . f; Qj1, :i . « Frc :; . TaL`A.110,a JP — N — — . er„k.1,14 . .' \ :4 :-4 L milD in x,!11 i ,'q,d , 1 �\ Z xi I O� k 44 JPO CP DU PAGE ST, In OC- 0 N O 4. 15. c^ n s� . I LULTON ST. 1 c. c.