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HomeMy WebLinkAbout01-169 Unsigned 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. 01-169 PASSED: JUNE 13, 2001 SUBJECT: AGREEMENT WITH THE COMMONWEALTH EDISON COMPANY FOR THE OTTER CREEK LIFT STATION blittU TO' FROM vL4 SUBJECT A./ „. I `- - c _ DATE IS,t; --2 / i I „if - r . ss, . 41, at -I - -. ,I cry-- "I/ I'1/,' 7./ • 7 , 6/1 get L . c_•.6 • -CU SIGNED t-Ytk WilsonJones® WHITE—ORIGINAL CANARY—DUPLICATE 44-900.Duplicate • Resolution No. 01-169 RESOLUTION AUTHORIZING EXECUTION OF A ROADWAY LICENSE AGREEMENT WITH THE COMMONWEALTH EDISON COMPANY FOR THE OTTER CREEK LIFT STATION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Roadway License Agreement on behalf of the City of Elgin with the Commonwealth Edison Company for the Otter Creek Lift Station, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: June 13, 2001 Adopted: June 13, 2001 Vote: Yeas 6 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk ' I City of Elgin Agenda Item No. 3 ynokATED FF. E F /- flit 0tiR June 8, 2001 G a irii II 11 ! I�I !ilii 111 (�di I , tliFi 111 { ,. N pill 1!I PI��ft+t ii 111 TO: Mayor and Members of the City Council FINANCIALLY STABLE CITY GOVERNMENT EFFICIENT SERVICES. AND QUALITY INFRASTRUCTURE FROM: Joyce A. Parker, City Manager SUBJECT: Roadway License Agreement with Commonwealth Edison Company Associated with the Otter Creek Lift Station PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider executing a Roadway License Agreement with Commonwealth Edison Company for the purpose of installing an access roadway within their right-of-way. BACKGROUND In order to provide sanitary sewer service to future developments west of Randall Road, a sanitary sewer lift station must be constructed to pump sewage to the Bowes Road Interceptor Sewer at Bowes and Randall Roads . The City acquired a parcel of property located north of Hopps Road and east of the Union Pacific Railroad tracks for the location of the proposed Otter Creek Lift Station. There are no exiting roads adjacent to the property. Until the area to the east develops, temporary access to the site must be provided with a temporary road across adjacent property. After unsuccessfully pursuing several alternatives, a road south from the site to Hopps Road was determined to be the best one . Using this route results in the road crossing Commonwealth Edison right-of-way to create the entrance off of Hopps Road. A map (Exhibit A) is attached showing the location of the lift station and entrance. A request was submitted to Commonwealth Edison to construct the lift station roadway entrance across their right-of-way. Commonwealth Edison has agreed to allow the entrance within their right-of-way and has provided the attached Roadway License Agreement (Exhibit B) for City Council consideration. The agreement allows the entrance to serve the site for ten years by which time development in the area should have provided closer, alternate access . Roadway License Agreement with ComEd June 5, 2001 Page 2 Subsequent to negotiations with Commonwealth Edison for this access agreement, the City was approached by several potential developers of the far west planning area with a request to consider an alternate location along Bowes Road for the sewage pumping station and associated force main. The developers felt that the proposed Bowes Road site would have a lesser impact on future land planning and it would also be easier to obtain required easements for the force main. At that time the City agreed to consider the Bowes Road site, thus eliminating the need for the access agreement with Commonwealth Edison. However, after several recent meetings between City staff, land owners and developer representatives, it has been determined that the original proposed Hopps Road site would best serve the majority of involved parties' needs . Therefore, the subject access agreement needs to be executed. The landowners/developers have also agreed to expedite acquisition of easements for the sewer force main. These easements could be in place by mid-July 2001 . COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None . FINANCIAL IMPACT The cost of the Roadway License Agreement is $1, 500 and is consistent with other easement agreements the City has entered into with Commonwealth Edison. This expenditure will be charged to account number 395-4200-795 . 92-32, project number 339505, Otter Creek Lift Station. Sufficient monies are available to fund this expenditure. AVLEGAL IMPACT None . ALTERNATIVES None . . . raw Roadway License Agreement with ComEd June 5, 2001 Page 3 RECOMMENDATION It is recommended that City Council approve the Roadway License Agreement with Commonwealth Edison and authorize the City Manager to execute the Agreement at a total cost of $1, 500 . spectfully submit , a // olL.,— oyce A. Parker City Manager SP:do Attachments F EXHIBIT A Location Map . . . r LOCATION MAP • Otter Creek Sewage Pumping Station A N ) 1 4 I I Bow. ROADs. i rik Project &r[r — 1111_11--.4115 - .1 Location __. tyi,..,IGnnurFtri.L__- „,, E31----,- -- i.,.... pi ILF=31 Rtlif HOPPS ::. 1 RCA° irj I (-- _I- -- TT ., . Ai 0 PplIk'f_. Till 4-‘• /-C.L ITSAt i 44, C /7----. --- 4-- -3: rik • • R/W:Wayne-Charter Grove PARCEL:26 Northwest 1/4, SEC. 32, Twp. 41N. Range 8 East of the Third Principal Meridian Kane County,Illinois COMED TAX PARCEL: 8396 P.I.N.:06-32-126-005 COMED REGION:North Central ROADWAY LICENSE THIS LICENSE(the"License")is made as of this day of 2001 by and between COMMONWEALTH EDISON COMPANY,an Illinois Corporation(hereinafter referred to as"Licensor")and the CITY OF ELGIN,an Illinois Municipal Corporation(hereinafter referred to as"Licensee"). WITNESSETH: WHEREAS,Licensor owns that certain property located in unincorporated Elgin, Kane County, Illinois, as shown on Baxter&Woodman's Driveway Plan drawing sheet no.G3,last revised 2/10/99,for the City of Elgin's Otter Creek Sewage Pumping Station project,attached hereto as Exhibit"A"(the"Licensed Premises"); WHEREAS,Licensee intends to construct a sanitary sewer lift station(the"Station")on certain property owned by Licensee north of and adjacent to the Licensed Premises(the"Licensee's Adjoining Property"); WHEREAS, Licensee has requested this License from Licensor in order to gain access to Licensee's Adjoining Property to operate and maintain the Station; WHEREAS,Licensor has agreed to this License upon the express terms and conditions contained herein; NOW,THEREFORE,for good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,Licensor and Licensee hereby agree as follows: 1. Grant of License. Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor the non-exclusive use of the Licensed Premises upon the terms and conditions set forth. 2. Purpose. Licensee shall use the Licensed Premises solely for initially constructing and completing a private roadway from the road commonly known as Hopps Road,located south of the Licensed Premises,to Licensee's Adjoining Property,maintaining,securing and patrolling such roadway,and using such roadway only for ingress and egress to and from the Station by Class"B"trucks and similarly sized or smaller vehicles owned,operated or leased by Licensee or its contractors,and for no other purpose whatsoever. 3. Term. The term of this License(the"Term")shall be a period of ten(10)years commencing on December 1, 1999 and expiring on the earlier of November 30,2009 or the date on which Licensee has obtained an alternate access route to Licensee's Adjoining Property,unless sooner terminated as provided herein. 4. Fee. Simultaneously with its execution and delivery of this License, Licensee shall pay Licensor the sum of $1,500.00 as a lump sum payment for the reimbursement of Licensor's expense for the review of project,preparation and granting of the License Agreement. • 5. Alterations and Improvements. a. Hopps Road Improvements. As a condition to and prior to any use of the Licensed Premises, Licensee shall make the following improvements to and changes in Hopps Road: Licensee shall remove a section of the existing Guardrail, and replace and install with a new Steel Plate Beam Guardrail in accordance with IDOT Standard 630001-01 drawing, last revised date 10/1/98 marked Exhibit"B", attached hereto and made a part hereof,and install and operate one(1)twenty-two(22)foot swing gate on gate keeper post, a warning sign with flashing beacon, and detector loop system,reasonably approved by Licensor, along Hopps Road indicating when vehicles are entering and exiting Hopps Road to or from the Licensed Premises. b. Future Hopps Road Improvements. In the event that Licensee,acquires jurisdiction over Hopps Road and improves,widens or re-routes Hopps Road, Licensee agrees to raise the elevation of Hopps Road in accordance with the Hopps Road Improvements Plan and Profile prepared by Baxter& Woodman and identified as Sheet 1 of 2,and Sheet 2 of 2 dated 2 June 1999 and Hopps XS 1,XS2 and XS3, all of which have been marked as"Exhibit C"and attached to and made a part of this document. c. Licensed Premises Improvements. Licensee shall not perform alterations, improvements, additions,demolition,or installations(referredto herein as"Alterations") in, on,of or to the Licensed Premises without the written consent of Licensor. Licensor may,as a condition of its consent,require Licensee to post a bond or other security reasonably satisfactory to Licensor to insure the completion of any such Alterations. Before commencement of any Alterations,Licensee shall furnish to Licensor(i) detailed plans and specifications and shall incorporate Licensor's requested revisions thereto, if any,(ii) names and addresses of all general contractors,contractors and subcontractors,(iii)copies of all necessary permits and licenses,and(iv)certificates of insurance covering such work in amounts satisfactory to Licensor. All Alterations shall be performed in accordance with all applicable laws and in a good and workmanlike manner by tradesmen skilled in their respective trades. Upon completion of any Alteration, Licensee shall provide waivers of lien from each contractor and such other evidence of lien-free completion of the work as Licensor may require. If Licensor consents to any Alterations,such consent shall not be deemed a warranty as to the adequacy of the design or workmanship or quality of the materials,and Licensor hereby disavows any responsibility and/or liability for such. Without limiting the foregoing provisions, if Licensee performs any grading, leveling, digging or excavation work on the Licensed Premises,Licensee will notify Licensor's Regional Right-of Way Agent in Rockford,Illinois,telephone number(815)490-2795 at least forty-eight(48)hours in advance of entering Licensor's Property,and Joint Utility Locating Information for Excavators("J.U.L.I.E.")at least seventy-two(72)hours prior to the commencement of such work in order to locate all existing utility lines that may be present on the Licensed Premises. If Licensee damages any equipment or facilities of Licensor or third parties in the course of its work,Licensee will promptly pay for any and all damages incurred by Licensor as a result thereof and will reimburse Licensor or the owner of such equipment or facilities for any and all expense incurred in repairing or replacing such damage. 6. Safety Predautions. Licensee shall take any and all safety precautions and measures to deter and prevent any accidents or mishaps on the Licensed Premises and on Hopps Road in the vicinity of the Licensed Premises, including, without limitation,any incidents due to the entering and exiting of vehicles to or from the Licensed Premises to or from Hopps Road. Licensee shall continually and diligently monitor the entry and exit of vehicles to and from the Licensed Premises to and from Hopps Road and shall continue to implement prudent safety precautions and measures throughout the Term of this License. Licensee shall take all reasonable steps, including the installation and maintenance of a locked swing gate at the entrance to the Licensed Premises from Hopps Road, to prevent access to the Licensed Premises by anyone other than Licensee, its contractors or employees. ( 7. Specific Limitations on Licensee's Use. In addition to limitations on Licensee's use described elsewhere in this License, Licensee shall perform and observe the following covenants,terms and conditions: #3926v 2 • a. Vehicles shall enter and exit the Licensed Premises only from Hopps Road. b. Licensee shall post'No Speeding' signs and posted speed limit signs, at prudent locations, along all roadways on the Licensed Premises. Licensee shall be responsible for ensuring that all vehicles entering upon the Licensed Premises observe the posted speed limit. c. No parking, storage or stacking of vehicles or containers, staging or blocking of any kind shall be allowed at any time on the Licensed Premises. d. Licensee shall not cause or permit any advertising signs or billboards to be placed on the Licensed Premises. e. Licensee shall not make, or permit to be made,any use of the Licensed Premises which, directly or indirectly, is forbidden by applicable laws,or which may be dangerous to life, limb or property, or which may increase Licensor's insurable risk. Additionally,Licensee shall use and operate the Licensed Premises so as at all times to be in compliance with applicable laws. f. Licensee shall not cause or permit any piling of any materials, including but not limited to,dirt,sand, salt,snow,gravel,or debris of any nature,on Licensor's Property. g. Under no circumstances shall Licensee undertake any blasting on the Licensed Premises. Licensee shall not conduct or allow any activity which could result in a wire to ground electrical contact or damage to towers or poles be allowed. Such activities include,but are not limited to,flying kites or model airplanes and driving minibikes,go carts and snowmobiles. Licensee shall post signs prohibiting such activities. If at any time,Licensor's electrical wires are located on the Licensed Premises,no vehicles, equipment or anything having a height more than fourteen(14)feet from original ground grade level shall be driven,moved or transported thereon. h. Licensee agrees that its use of the Licensed Premises must not create surface water drainage problems for adjoining landowners. All unforeseen problems,which arise as a result of the right granted herein,shall immediately be corrected by Licensee. 8. Real Estate Taxes. Licensee agrees to reimburse Licensor for any real estate tax or assessment increase within thirty(30)days after presentation of a bill,should(a)Licensee's use of the Licensed Premises change the assessed valuation of the Real Estate Tax Parcel of the Licensed Premises and Licensor's adjacent property,or(b)Licensee's improvements be assessed with Licensor's improvements in the same tax parcel. 9. Condition of Licensed Premises. Licensee has examined and inspected the Licensed Premises and knows and understands its condition. No representations as to the condition and repair thereof,and no agreements to make any alterations,repairs or improvements in or about the Licensed Premises have been made by Licensor,either written or verbal. Furthermore,Licensor has made no representations or warranties of any kind or nature whatsoever,whether written or oral,concerning the suitability of the Licensed Premises for Licensee's intended use thereof as permitted by the terms of this License. Licensee has solely and exclusively relied on its independent investigation and evaluation of all such matters in entering into this License. LICENSEE HEREBY AGREES TO ACCEPT THE LICENSED PREMISES IN ITS"AS-IS,WHERE-LOCATED" CONDITION, WITH ALL FAULTS. No representations are made that the Licensed Premises are properly zoned for the proposed use. Licensee assumes all obligations and responsibilities for compliance with zoning laws and ordinances and other environmental regulations of regulatory bodies having jurisdiction. This Licensee does not constitute the authority to seek a zoning change to permit the use. 10. Maintenance of the Licensed Premises and Signaling Devices. Licensee will maintain the Licensed Premises,all improvements located thereon and all signaling devices on and to Hopps Road located within 500 feet of the Licensed Premises in either direction, in good condition,clean,neat, orderly and sightly,to #3926v1 3 • Licensor's sole satisfaction at all times during the term of this License. Licensee will ensure that all mechanical signaling and safety devises are maintained in working condition during the Term. 11. Environmental. a. At all times while this License is in effect,Licensee, its employees, agents, contractors, subcontractors, licensees and invitees,and any other person or entity in privity with Licensee or entering upon the Licensed Premises by,through or under any right granted to Licensee herein(collectively,the"Licensee Group"), shall conduct their operations and otherwise use and occupy the Licensed Premises and any adjacent property of Licensor in strict compliance with all applicable Environmental Laws(as hereinafter defined)and, without limiting the generality of the foregoing,shall not cause any Hazardous Materials(as hereinafter defined)to be introduced to or handled on the Licensed Premises or any adjacent property of Licensor,except in strict compliance with all applicable Environmental Laws. b. If there are wetlands on the Licensed Premises or any adjacent property of Licensor at the commencement of the License or if wetlands should develop on the Licensed Premises or such adjacent property during the term of this License,Licensee shall strictly comply with and observe all laws,rules, statutes and regulations applicable to wetlands of any federal,state,county or local regulatory agency and any other governmental authority having jurisdiction over the Licensed Premises or the parties. Under no circumstances shall Licensee change the physical characteristics of any wetland areas located on the Licensed Premises or any adjoining land or place any fill material on any portion of the Licensed Premises or adjoining land,without in each instance obtaining Licensor's prior written consent. Licensor may grant or withhold such consent in its sole and exclusive discretion and, should Licensor grant such consent,Licensee shall secure all wetland permits, licenses and approvals that may be required from all appropriate governmental authorities prior to commencing any work and shall provide Licensor with copies of all such permits, licenses and approvals. c. Prior to commencing any work or entering upon the Licensed Premises,Licensee shall obtain all permits,consents,approvals or other authorizations required under any applicable Environmental Laws in connection with such work and Licensee's use and occupancy of the Licensed Premises. d. Licensee hereby indemnifies and shall defend and hold harmless Licensor, its parent corporation,their respective subsidiaries and affiliates,successors and assigns,and their officers,directors, employees,agents,shareholders and legal representatives(collectively,the"Licensor Group"), from and against any suits,causes of action(whether asserted under Environmental Laws or at common law),damages,losses, claims,demands, injuries, liens,costs and expenses of any kind,including without limitation court costs,attorneys' and consultants' fees,arising out of or related to any of the following:(a)any breach by the Licensee Group,or any of them,of any covenant or representation set forth in this License;(b)any violation by the Licensee Group,or any of them,of any Environmental Laws arising from or related to Licensee's use and occupancy of the Licensed Premises hereunder;or(c)the release,threatened release,discharge,emission or disposal of any Hazardous Materials in,at,on or beneath the Licensed Premises or any adjoining property of Licensor by the Licensee Group, or any of them. If,during the performance of any work by any member of the Licensee Group hereunder,Licensee becomes aware that soil, groundwater,or other material on,within.or under Licensor's property is contaminated by any Hazardous Materials,Licensee shall notify Licensor and Licensee shall immediately secure the work area, at Licensee's cost, in such a manner as to adequately protect the public safety. This indemnification shall survive the termination of this License. e. As used in this License,the term"Hazardous Materials"means any hazardous or toxic substances,materials or wastes,including,but not limited to solid,semi-solid,liquid or gaseous substances which are toxic,ignitable,corrosive,carcinogenic or otherwise dangerous to human,plant or animal health or well-being and those substances,materials,and wastes listed in the United States Department of Transportation Table(49 CFR 972.101)or by the Environmental Protection Agency as hazardous substances(40 CFR Part 302)and amendments thereto or such substances,materials and wastes regulated under any applicable local,state or federal law including, without limitation,any material,waste or substance which is(a)petroleum,(b)asbestos,(c)polychlorinated biphenyls, (d)designated as"hazardous substances"pursuant to Section 1251 et seq.(33 U.S.C. Section 1321)or listed pursuant #3926v1 4 • • to Section 307 of the Clean Water Act(33 U.S.C.Section 1317),(v)defined as a"hazardous waste"pursuant to Section 1004 of the Resource Conservation and Recovery Act,42 U.S.C.Section 6901 et seq.(42 U.S.C. Section 6903),or(vi) defined as a"hazardous substance"pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act,42 U.S.C. Section 9601 et seq.(42 U.S.C.Section 9601)or any other applicable Environmental Law. f. As used in this License"Environmental Laws"means all federal,provincial,state and local environmental laws,rules,regulations,ordinances,judicial or administrative decrees,orders or decisions, authorization or permits, including,but not limited to,the Resources Conservation and Recovery Act,42 U.S.C. §§6901,et seq.,the Clean Air Act,42 U.S.C. §§7401,et seq.,the Federal Water Pollution control Act, 33 U.S.C. §§1251,et seq.,the Emergency Planning and Community Right to Know Act,42 U.S.C. §§ 1101,et seq.,the Comprehensive Environmental Response,Compensation,and Liability Act,42 U.S.C. §§9601,et seq., the Toxic Substances control Act, 15 U.S.C. §§2601,et seq.,the Oil Pollution Control Act,33 U.S.C. §§2701,et seq.,or any other comparable local,state or federal statute or ordinance pertaining to the environment or natural resources, including without limitation the preservation of wetlands,and all regulations pertaining thereto. g. With respect to all activities of the Licensee Group, or any of them,on the Licensed Premises or on Licensor's adjacent property,Licensee shall be responsible for ensuring that each member of the Licensee Group shall: (a)at its own expense comply with all Environmental Laws; (b)not consent to or authorize the presence of any Hazardous Materials on the Licensed Premises or Licensor's adjacent property, except in accordance with all requirements of applicable Environmental Laws;(c)not take any action that would subject the Licensed Premises or any portion of Licensor's adjacent property to permit requirements under RCRA or any other Environmental Laws for storage,treatment or disposal of Hazardous Materials;(d)not discharge Hazardous Materials into any drain or sewers on Licensor's adjacent property;(e)not install any underground storage tanks on the Licensed Premises or any portion of Licensor's adjacent property;(f)not cause or allow the release of any Hazardous Substances on,to or from the Licensed Premises or Licensor's adjacent property; (g)at its own cost arrange for the lawful transportation and off-site disposal of any Hazardous Materials that it generates; and(h)upon any termination of the License,remove any Hazardous Materials it used at or brought to the Licensed Premises or Licensor's adjacent property,in accordance with all requirements of applicable law. To the fullest extent practicable,Licensee shall return the Licensed Premises and Licensor's adjacent property,upon any termination of this License,to the same condition as existed before the commencement of the License. h. Licensee acknowledges that Licensor may incur costs as a result of a change in Environmental Laws. Licensee agrees that any such costs incurred by Licensor for complying with such new laws due to Licensee's use and occupancy of the Licensed Premises shall be an expense recoverable by Licensor. To the extent any such expense paid by Licensee is subsequently recovered by or reimbursed to Licensor through insurance or recovery from responsible third parties or other action,Licensee shall be entitled to a proportionate share of such recovery or reimbursement. i. Licensee shall provide Licensor with written notice(a)upon Licensee's obtaining knowledge of any violations of applicable Environmental Laws or the release of any Hazardous Materials affecting the Licensed Premises or Licensor's immediately adjacent property or(b)of Licensee's receipt of any notice, correspondence,demands or other communication from any governmental authority related to any alleged or actual violation of any Environmental Laws affecting the Licensed Premises or Licensor's adjacent property. 12. Waivers,Indemnities,Liens. a. Indemnification. Licensee agrees to indemnify,defend and hold harmless the Licensor Group,and each of them,from and against any.and all claims,actions,proceedings,judgments,damages, liens, fines,costs, liabilities, injuries, losses,costs and expenses(including but not limited to attorneys' fees and costs and loss of electrical service)arising from or related to Licensee's use and occupancy of the Licensed Premises or any adjacent property owned by Licensor,or any work performed hereunder by Licensee Group, or any of them, or any breach of this Agreement,except to the extent that any such claim,action,proceeding,judgment,damage, lien, fine, cost, liability, injury, loss,cost and expense is attributable solely to the gross negligence or willful misconduct of #3926v1 5 • Licensor, its employees, agents or contractors. This indemnification shall include, but not be limited to, claims made under any workman's compensation law or under any plan for employee's disability and death benefits (including without limitation claims and demands that may be asserted by employees,agents,contractors and subcontractors). The foregoing indemnity shall survive the termination of this License. b. Waiver. To the maximum extent permitted by applicable law,Licensee hereby waives any and all claims against the Licensor Group,and any of them,which Licensee or any person or entity claiming by, through or under Licensee may now or at any time in the future have for injury or damage to persons, property or business sustained in or about the Licensed Premises or any adjacent property owned by Licensor, including without limitation claims arising from any conditions existing on the Licensed Premises or any acts or omissions of any of the Licensor Group. Licensor shall not be liable to Licensee for any injury,loss or damage to persons, property or business sustained by any of the Licensee Group in connection with this License or the rights granted to Licensee hereunder,unless such loss or damage results solely from Licensor's gross negligence or willful misconduct. In no event shall Licensor be liable for any such injury,loss or damage resulting from any acts or omissions of any third party occupants of the Licensed Premises or any adjacent property owned by Licensor or the public. c. Liens. Licensee will not permit or suffer any lien or claim of lien, arising under the Illinois Mechanic Lien Law or similar law,to attach to the Licensed Premises by reason of the Alterations to or work done upon the Licensed Premises. Licensee shall indemnify and save harmless Licensor from all claims, litigation and liability asserted against it,and any costs and attorney's fees incidental thereto,on account of any such liens or claims of liens. The foregoing indemnity shall survive the termination of this License. d. Licensor's Facilities. Licensor shall not be liable or responsible for loss or damage resulting from Licensor's use, installation,construction or maintenance of overhead or underground electrical facilities now or later emplaced,except if solely caused by the gross negligence of Licensor, its employees or agents. Licensee shall reimburse Licensor for any damage to Licensor's electrical equipment and facilities or any electrical outages caused by anyone other than Licensor using the Licensed Premises. e. Personal Property. Licensor shall not be liable or responsible for damage caused by fire, vandalism or other casualty to any vehicle,equipment,merchandise or personal property on the Licensed Premises at any time during the term hereof. 13. Insurance. a. Contractor's Insurance Requirements. Licensee agrees to require its contractor,before commencing any work to the Licensed Premised to Purchase and maintain,or at the option of Licensee to itself purchase and maintain,at the cost of Licensee or its contractor,a policy or policies of insurance issued by good and responsible insurance companies and in a form satisfactory to Licensor as follows: (i) Workers'Compensation Insurance Policy: Coverage A-To pay promptly when due all compensation and other benefits required of the insured by the workers'compensation law. Coverage B-Employers'Liability: To pay on behalf of the insured with limits not less than$500,000 each accident/occurrence all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease,including death at any time resulting therefrom. Coverage A and Coverage B will cover all contractors,subcontractors, and their subcontractors. (ii) Comprehensive General Liability Policy or Policies covering all contractors, subcontractors and all their subcontractors with limits not less than the combined single limit of$3,000,000 for bodily injuries to or death of one or more persons and/or property damage sustained by one or more organizations as a result of any one occurrence,which policy or policies shall not exclude property of Licensor. Commonwealth Edison Company,as Licensor,shall be added as Additional Insured under endorsement GL 2010. Bodily injury means bodily injury,sickness,or disease sustained by any person which occurs during the policy period,including death,at any time resulting therefrom. Property damage means(1)physical injury to or destruction of tangible property which occurs during the policy period, #3926v1 6 • • • including the loss of use thereof at any time resulting therefrom,or(2)loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. b. Licensee Insurance Requirements. Licensee will, in any event,purchase and maintain during the term hereof: (i) Owners'Licensors'and Licensees'Liability Insurance Policy(substantially in the form of an Owners' Landlords' and Tenants' Liability Insurance Policy)in the name of Licensor, Commonwealth Edison Company,as the insured,with limits of not less than the combined single limit of $3,000,000 for bodily injuries to or death of one or more persons and/or property damage sustained by one or more organizations as a result of any one occurrence,which policy shall not exclude property of Licensor. Bodily injury means bodily injury,sickness,or disease sustained by any person which occurs during the policy period,including death, at any time resulting therefrom. Property damage means(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom,or(2)loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period. (ii) Automobile Liability in the amount of not less than$3,000,000 per occurrence combined single limit covering all owned,leased,rented and non-owned vehicles. (iii) Workers'Compensation Insurance Policy: Coverage A-To pay promptly when due all compensation and other benefits required of the insured by the workers'compensation law. Coverage B-Employers'Liability: To pay on behalf of the insured with limits not less than$500,000 each accident/occurrence all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom. Coverage A and Coverage B will cover all contractors, subcontractors,and their subcontractors. c. Contents of Insurance Policies. Insurance policies,or renewals thereof,as required herein shall not contain any exclusion not approved by Licensor in writing. Licensor hereby reserves the right to amend,correct and change,from time to time,the limits,coverage and form of policy in accordance with amendments,corrections or changes in Licensor's standard practices and procedures. Declarations in any insurance policies maintained by or on behalf of any contractors or subcontractors of Licensee shall identify the work as being done by and for others on property owned by Licensor. All insurance policies required herein shall be issued by good and reputable companies having a Best's Rating of ANTI or better and shall provide thirty(30)days prior written notice of any substantial change in the coverage, cancellation or non-renewal. All policies of insurance required herein shall be written on an occurrence basis and shall be primary without right of contribution or offset from any policy of insurance or program of self-insurance maintained by Licensor. Licensee agrees and shall require each of its contractors,subcontractors,assigns and any other person or entity entering upon the Licensed Premises pursuant to any rights granted to Licensee hereunder,to agree that they shall each arrange for the issuers of all policies of insurance required hereunder to waive their rights of subrogation against Licensor,its directors,officers,employees and agents. d. Evidence of Insurance. Licensee shall furnish to Licensor,prior to commencing any work on the Licensed Premises a certificate of insurance showing the issuance of insurance policies pursuant to the requirements contained in Paragraph 13.a,which policies shall be held by Licensee and shall be delivered to Licensor upon written request. Insurance coverage as required herein shall be kept in force until all work has been completed. The original policies required under Paragraph 13.b shall be delivered to Licensor upon execution of this document. The insurance coverage required under Paragraph 13.b shall be kept in force through the Term hereof. Declarations in each of said policies shall identify the work as being done by and for others on 43926v1 7 • property owned by Licensor and there shall be no exclusions in any of said policies not approved in writing by Licensor. 14. Assignment. Licensee may not assign this License nor sublet the Licensed Premises or any part thereof. Licensee shall not permit any transfer by operation of law of its interest herein. 15. Retained Rights by Licensor. a. The rights of the Licensor to conduct its business operations and utilize the Licensed Premises, in its utility business will,at all times,be and remain paramount to the rights herein granted to Licensee by Licensor,and nothing stated herein is to be construed as restricting Licensor from granting rights to other parties or persons in, upon or under the Licensed Premises, including without limitation, rights relating to sewers,water pipes and mains,drainage tiles and pipes,gas mains and pipelines and other allied uses. b. Licensor,at all times,shall have free and unrestricted access for its employees, agents, representatives, assigns or grantees to come upon the Licensed Premises,either by vehicle or on foot, for the purpose of constructing, installing,operating, maintaining,repairing,replacing,transporting or patrolling, any or all of Licensor's Operations,now or later located thereon,or inspecting the Licensed Premises. c. Licensee hereby acknowledges,that the Licensed Premises may be used,from time to time,to accommodate equipment and facilities of other pipeline and utility companies,which would be primarily located below the surface of the Licensed Premises. Licensee agrees,that in any event, it will contact the owners of any such various pipeline and utility equipment and facilities,and provide the proper protection required by the pipelines and utilities, in connection with its use of the Licensed Premises. Licensee further agrees,to furnish Licensor copies of any such correspondence,between the various pipelines and utilities and Licensee. Licensee agrees,that this notification applies to the present installations and any and all future installations within the Licensed Premises. d. This License shall not, in any manner or to any extent, limit or restrict the right of Licensor,to use or dispose of the Licensed Premises,as Licensor may in its discretion,desire. e. Without limiting the generality of the provisions of this Paragraph 15, Licensor hereby reserves,for itself and its employees,agents,contractors,licensees,lessees,grantees,invitees,successors and assigns the right of free and unrestricted pedestrian and vehicular ingress and egress over the Licensed Premises, including,without limitation,ingress and egress for Licensor's trucks. f. Licensor has the right to remove any and all paving installed by Licensee if Licensor determines such removal is required in connection with Licensor's Operations. Other than leaving a solid and firm backfill where such removal is made,Licensor shall not be liable to Licensee to restore the paving. g. Licensee agrees that due to Licensor's facilities now or hereafter located on the Licensed Premises, it may be necessary for Licensor to install barricades and materials to protect its poles and other facilities and equipment and Licensee will promptly pay for any and all labor and material required for these installations promptly upon written request therefor. h. Licensee will,upon request by Licensor,remove any improvements from the Licensed Premises if Licensor,in its sole discretion,considers it necessary in the furtherance and improvement of Licensor's duties to provide electric service or conduct its business operations. In such event, if Licensee cannot or will not remove all improvements and cease using the Licensed Premises,then Licensee hereby authorizes Licensor to take such actions as are required to remedy this matter do so. Licensee hereby agrees to reimburse Licensor, for any and all expenses thereupon incurred promptly upon written request therefor. Licensee will indemnify and hold Licensor t harmless of all claims, loss,damage,liability and judgments,including costs and lawyer's fees,arising out of, incurred in or in any way connected with such removal. This foregoing indemnity shall survive the termination of this License. #3926v1 8 • 16. Restoration of Licensed Premises. Licensee agrees that,upon the expiration or earlier termination of this License,Licensee shall,at its sole cost and expense,remove all of Licensee's personal property and equipment and, if requested by Licensor,remove those improvements installed by or at the request of Licensee, including,without limitation,blacktop,crushed stone or other surfacing material,structures and improvements,and otherwise restore and re-grade the Licensed Premises to its original condition and elevation. In the event Licensee fails to return the Licensed Premises to Licensor in the condition required herein,Licensor shall have the right to perform Licensee's obligations and Licensee shall, promptly following receipt of an invoice from Licensor, reimburse Licensor for any and all expenses incurred by Licensor in connection with Licensor's removal and restoration. 17. Termination of License. This License may be terminated at any time by either party hereto by giving 90 days'prior written notice to the other party of such termination. Upon any such termination,this License and the Licensor's and the Licensee's obligations hereunder shall be null and void except for the indemnification provisions as expressly provided in paragraphs 11d, 12a, 12c, 15h and 18. 18. Default. In the event default is made in any of the covenants and agreements herein contained to be kept by Licensee or if Licensee shall violate or breach any of the terms,conditions or provisions of this License, or if Licensee shall vacate or abandon the Licensed Premises during the Term of this License,or if Licensor should receive notice of an alleged violation of any Federal or State law or any municipal or zoning ordinances concerning Licensee's use of the Licensed Premises,or if Licensor shall be so ordered by any regulatory body, it shall be lawful for Licensor at any time thereafter at its election,without notice or demand,to declare the Term ended,the License terminated,and thereupon to re-enter the Licensed Premises either with or without process of law and to expel, remove and put out Licensee or any person or persons occupying the Licensed Premises,using such force as may be necessary so to do and to repossess and enjoy the Licensed Premises again as before this demise without prejudice to any remedies which might otherwise be used for damages incurred by Licensor; Licensee hereby expressly waiving all right to any notice or demand under any statute relating to forcible entry and detainer. The decisions of [. Licensor shall be final and binding upon Licensee governing any breach or default in the covenants and agreements contained in this License. Rights and obligations under indemnity clauses survive the termination of the License under this clause or otherwise. 19. Notices. All notices to be given hereunder shall be in writing and shall be delivered personally, sent via nationally recognized overnight courier or sent registered or certified mail,return receipt requested,with postage prepaid,to the parties at the following addresses(or to such other or further addresses as the parties may hereafter designate by like notice similarly sent): Licensor: Commonwealth Edison Company Commonwealth Edison Company Real Estate Services Law Department 227 W. Monroe Street 125 South Clark Street 11th Floor Suite 1535 Chicago,Illinois 60606 Chicago,Illinois 60603 Attn: Real Estate Coordinator Attn: Counsel—Real Estate Licensee: City of Elgin Department of Engineering 150 Dexter Court Elgin, Illinois 60120-5555 Attn: Mr. S. R.Pertzborn, P.E. Any notice given hereunder other than by personal delivery shall be deemed given upon receipt or refusal to accept. 20. Eminent Domain. If the Licensed Premises, or a substantial part thereof, or a portion which prevents use of the Licensed Premises,shall be taken or condemned by any competent authority for any public use or purpose,the term of this License shall end upon and not before,the date when the possession of the part so taken N3926vl 9 shall be required for such use or purpose,and without apportionment of the condemnation award. Licensee shall have no right to share in such award. 21. Miscellaneous. a. Waiver of Default. No delay or omission of Licensor to exercise any right or power arising from any default shall impair any such right or power or be construed to be a waiver of any such default or any acquiescence therein. No waiver by Licensor of any default of any of the covenants of this License shall be construed,taken or held to be a waiver of any other default,or as a waiver,acquiescence in or consent to any further or succeeding default of the same covenant. The acceptance by Licensor of this License,or of Licensee's right to possession hereunder,shall not,in the absence of agreement in writing to this contrary by Licensor,be deemed to restore this License or Licensee's rights hereunder,as the case may be,but shall be construed as a payment on account,and not in satisfaction of damages due from Licensee to Licensor. b. Original Document. Provisions inserted herein,or affixed hereto, shall not be valid, unless appearing in the duplicate original hereof held by Licensor. In event of a discrepancy,the Licensor's duplicate shall control. c. Headings. Headings of sections and paragraphs are for convenience only,and do not limit or construe the contents of the sections. d. Successors. Each provision hereof shall extend to and shall,as the case may require,bind and inure to the benefit of Licensor and Licensee and their respective heirs,legal representatives,successors and assigns,subject to the restrictions on assignment provided herein. e. No Relation. By signing this License,Licensee affirms and states that it is not an employee of Commonwealth Edison Company,nor has any affiliated interest in the Commonwealth Edison Company. f. Governing Law. The laws of the State of Illinois shall govern the validity,performance, construction and enforcement of this License. g. Severability. If any tens,covenant or condition of this License or the application thereof to any person or circumstance shall,to any extent,be invalid or unenforceable,the remainder of this License,or the application of such term,covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable,shall not be affected thereby and each term,covenant or condition of this License shall be valid and enforceable to the fullest extent permitted by law. h. Waiver of Jury Trial/Prevailing Party. LICENSOR AND LICENSEE AGREE,THAT TO THE EXTENT PERMITTED BY LAW,EACH SHALL AND HEREBY DOES WAIVE TRIAL BY JURY IN ANY ACTION,PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LICENSE,THE RELATIONSHIP OF LICENSOR AND LICENSEE,THE USE OR OCCUPANCY BY LICENSEE OF THE LICENSED PREMISES AND/OR ANY EMERGENCY OR STATUTORY REMEDY. If Licensor or Licensee or any of their respective officers,directors,trustees,beneficiaries,partners,agents,affiliates or employees shall be made a party to any litigation commenced by or against the other and are not found to be at fault, the non-prevailing party shall pay all costs,expenses and reasonable attorneys'fees incurred by the prevailing party or any such party in connection with such litigation. The non-prevailing party shall also pay all costs,expenses and reasonable attorneys'fees that may be incurred by the prevailing party in successfully enforcing this License. i. Exhibits. All exhibits attached to this License are hereby made a part of this License as though inserted in this License. #3926v1 1 0 • j. Entire Agreement. This License constitutes the entire agreement between Licensor and Licensee and supercedes any and all prior agreements,written or oral,with respect to any of the matters dealt with herein. There have been no additional verbal or written representations or agreements. k. No Encumbrance of Title. Licensee shall not do any act which shall in any way encumber the title of Licensor in and to the Licensed Premises, nor shall the interest or estate of Licensor in the Licensed Premises in any way become subject to any claim by way of lien or encumbrance,whether by operation of law or virtue of any express or implied contract by Licensee. 1. Subordination. This License and Licensee's rights are and shall be subject and subordinate to any mortgage(s),trust deed(s)or ground leases now of record or hereafter executed by Licensor against Licensor's Property and to all amendments,modifications,replacements or renewals thereof. m. Time of Essence. Time is of the essence of this License and all provisions herein relating to time of performance shall be strictly construed. 22. Licensee Authority. Simultaneously with its delivery of an originally executed copy of this License indicating its agreement to and acceptance of all of the terms,obligations and conditions contained herein, Licensee shall deliver to Licensor certified(i)resolutions passed by the City Council of the City of Elgin authorizing the agreement to and undertaking of all of the terms,obligations,indemnifications,waivers and conditions contained herein and the execution hereof by the Mayor of the City of Elgin. #3926v 1 1 1 IN WITNESS WHEREOF, Licensor and Licenses have executed this Roadway License as of the day and year first above written. LICENSOR: COMMONWEALTH EDISON COMPANY By: N. J. Schilling Land Management Administrator LICENSEE: City of Elgin, an Illinois municipal corporation By. Name: 4410wn-Ab Title: Mayor Duly approved and accepted by the City Council of the City of Elgin by resolution passed on ( 3 , 2001: City Clerk #3926v1 1 2