HomeMy WebLinkAbout00-262 Recorded A
Resolution No. 00-262
RESOLUTION
AUTHORIZING EXECUTION OF A PRIVATE GRADE CROSSING
EASEMENT AGREEMENT FOR WATER MAIN ACCESS PURPOSES WITH THE
COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY
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
Private Grade Crossing Easement Agreement with the Commuter
Rail Division of the Regional Transportation Authority for
water main access purposes for the property located west of
the Fox River, east of State Street and north of Kimball
Street and legally described in the easement agreement, a copy
of which is attached hereto and made a part hereof by
reference .
BE IT FURTHER RESOLVED that the City Clerk is hereby
authorized and directed to cause the Private Grade Crossing
Easement Agreement to be recorded in the office of the
Recorder of Deeds of Kane County, Illinois .
s/ Ed Schock
Ed Schock, Mayor
Presented: November 29, 2000
Adopted: November 29, 2000
Omnibus Vote : Yeas 6 Nays 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
FILED FOR RECORD
K;!r`f '. ". `r' ILL.
? fl 0 I # . I 16 4 4 ?DC FEB -9 %,1 9:00
Wes~
a=C F.[ER
PRIVATE GRADE CROSSING 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
the City of Elgin, an Illinois municipal corporation ("City"). Metra and the City are hereinafter
sometimes individually referred to as a "Party" and jointly referred to as the "Parties".
The City desires to obtain from Metra and Metra desires to grant to The City a non-exclusive
easement for the sole purpose of a limited access crossing over that portion of Metra's tracks and
right of way at grade located on Metra's Milwaukee District, West Line, in Elgin, Illinois, legally
described and delineated on the plat attached to and made a part of this Agreement as Exhibit "A"
("Easement Premises") for purposes of enabling the the City's Water Department to access a
sixteen(16)inch water main, three(3)sixteen(16)inch valves and a fire hydrant located on property
adjoining the said Metra right-of-way and tracks ("Crossing").
NOW,THEREFORE, for and in consideration of the foregoing recitals which are hereby
incorporated into this Agreement,the sum of Ten Dollars($10.00) in hand paid by the City to Metra,
the covenants and conditions set forth in this Agreement and other good and valuable consideration,
po the receipt and sufficiency of which are hereby acknowledged by the Parties, Metra does hereby
grant and convey to the City a non-exclusive easement over the Easement Premises for the Crossing
rli
y.. subject to the following covenants, conditions and restrictions:
; T 1. Any and all construction, repair, replacement or maintenance of the Crossing shall be
U 3 performed by Metra at Metra's sole cost and expense;provided, however, that prior to the City's use
tr) 2 of the Crossing, the City shall install, at its sole cost and expense, a locked gate at the entrance to
the Crossing on the property southwesterly and adjoining the Easement Premises in accordance with
plans and specifications prepared by the City and approved by Metra("Gate").
2. The City shall give to Metra reasonable advance written notice of the time when the City will
commence the installation, or any subsequent replacement, of the Gate 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
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may be done in a manner satisfactory to Metra. The City agrees that before and during the
installation or replacement of the Gate, 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. The City shall keep the Gate locked at all times except
when the City is accessing the Crossing for the purposes set forth in this Agreement. The City shall
give Metra's authorized representative a duplicate key or the required access code or card necessary
to open the Gate. If at any time in the future the City changes the lock on the Gate, the City shall
give Metra's authorized representative the new key, code or card necessary to unlock the Gate.
3. Any rights to the Easement Premises not specifically granted to the City herein are reserved
to Metra and its successors or assigns or both. The City shall use the Crossing 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's tenants or permitees on the Easement Premises and so as not to
prevent or unreasonably interfere with the use and enjoyment of the Easement Premises by Metra,
its employees, agents or permittees for the purpose(s) to which the Easement Premises is now, or
may hereafter be, committed by Metra. The City shall not place, keep, store or otherwise permit to
be placed or kept on the Easement Premises any equipment or materials. Metra shall have the right
to retain the existing tracks and other improvements at the location of this Crossing on or adjacent
to the Easement Premises and also shall have the right at any and all times in the future to construct,
maintain and operate over, under, across or parallel to said Crossing such additional track or tracks
as it may from time to time elect. Nothing shall be done or caused to be done by the City that will
in any manner impair the usefulness or safety of the tracks and other improvements of Metra, or such
track or tracks and other improvements as Metra may in the future construct or cause to be
constructed over, under, across or parallel to said Crossing. This Agreement is expressly subject to
the rights of third parties to maintain utility and other improvements permitted by Metra on the
Easement Premises. Metra reserves the exclusive right to grant future third party rights over, under,
across or parallel to the said Crossing.
4. The City agrees that if, at any time, Metra shall change the location or grade of its tracks at
any point on the Easement Premises or shall desire to use the Easement Premises for any other
purpose whatsoever, Metra may make all changes to the Crossing required after having given the
City thirty(30) days prior written notice of its intention to make such changes.
5. The City shall neither do nor cause to be done any action that may impede the drainage or
the flow of water across or under Metra's property so as to adversely affect continued rail operations,
it being understood and agreed that at all times the City's use of the Crossing is subordinate to the
operation of a railroad by Metra, its successors, assigns, licensees, permittees or tenants.
6. , If deemed necessary by Metra for the City's use of the Crossing, a flagman will be provided
by Metra at the sole cost and expense of the City.
7. If the use of the Crossing shall at any time be in violation of any applicable federal, state,
county, city or local law, rule, regulation or ordinance or agreement with Metra, then the City shall,
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upon receipt of appropriate notice from the governmental agency having enforcement jurisdiction
over the Crossing, notify Metra of such violation. At the sole cost and expense of the City, Metra
shall make such changes required by the governmental agency having enforcement jurisdiction over
the Crossing as shall be necessary to correct any and all violations. The City shall forever protect,
defend, indemnify and hold Metra harmless against and from any and all costs, losses, damages,
fines or penalties arising from the City's failure to comply with the provisions of this paragraph.
8. To the fullest extent permitted by law, the City hereby assumes and agrees to release, acquit,
waive any rights against and forever discharge Metra, the Regional Transportation Authority
("RTA"), the Northeast Illinois Regional Commuter Railroad Corporation ("NIRCRC") and their
tenants, directors, administrators, officers, employees, agents, successors, assigns and all other
persons, firms and corporations operating on the Easement Premises pursuant to, under or with their
permission or authority, from and against any and all claims, demands or liabilities imposed upon
them by law or otherwise of every kind, nature and character on account of personal injuries,
including death at any time resulting therefrom, and on account of damage to or destruction of
property arising from any accident or incident which may occur to or be incurred by the City, its
employees, officers, agents and all other persons acting on its behalf or with its permission or
authority while on the Easement Premises or the adjoining Metra property, whether or not such
injuries or damages are caused by the actions, omissions or negligence of Metra, RTA or NIRCRC
or their respective directors, officers, agents or employees or any other cause or causes.
Notwithstanding anything in this Agreement to the contrary, the waivers and releases contained in
this paragraph shall survive termination of this Agreement.
9. To the fullest extent permitted by law, the City agrees to indemnify, defend and hold
harmless Metra, the RTA, the NIRCRC, their directors, officers, tenants, agents and employees, and
all other persons, firms and corporations operating on the Easement Premises pursuant to, under or
with their permission or authority, against and from any and all liabilities, losses, damages, costs,
payments and expenses of every kind and nature (including court costs, attorneys' fees and
disbursements) as a result of claims, demands, actions, suits, proceedings,judgments or settlements,
arising out of or in any way relating to or occurring in connection with the use or condition of the
Easement Premises, whether or not such injuries or damages are caused by the actions, omissions
or negligence of Metra, the RTA or the NIRCRC or their respective directors, officers, agents or
employees or any other cause or causes. Metra agrees to notify the City in writing within a
reasonable time of any claim of which it becomes aware falling within this indemnity provision. The
City further agrees to defend Metra, the RTA, and the NIRCRC, their directors, officers, tenants,
agents and employees, and all other persons, firms and corporations operating on the Easement
Premises pursuant to, under or with their permission or authority, against any claims, suits, actions
or proceedings filed against any of them with respect to the subject matter of this indemnity
provision, whether such claims, suits, actions or proceedings are rightfully or wrongfully made or
filed;provided,however, that Metra may elect to participate in the defense thereof at its own expense
or may, at its own expense, employ attorneys of its own selection to appear and defend the same on
behalf of Metra, the RTA, the NIRCRC, and their directors, officers, tenants, agents or employees.
The City shall not enter into any compromise or settlement of any such claims, suits, actions or
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proceedings without the consent of Metra, which consent shall not be unreasonably withheld.
Notwithstanding anything in this Agreement to the contrary, the indemnities contained in this
paragraph shall survive termination of this Agreement 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 the City or those performing on behalf of or with the authority of the City to the
extent that such is in violation of the Illinois Construction Contract Indemnification for Negligence
Act, 740 ILCS 35/0.01 et seq.
10. All rights and interest in the Crossing shall immediately revert to Metra if the City vacates,
abandons or ceases to use the Crossing with the intent to permanently vacate, abandon or cease to
use the Crossing or uses or permits the use thereof in contravention of the covenants, conditions and
restrictions set forth in this Agreement. In the event of such reversion or abandonment, the City
shall, upon request of Metra, execute and deliver to Metra an instrument in proper form releasing
the City's rights in the Crossing.
11. This Agreement and the easement granted herein may be terminated by Metra effective
immediately upon notice to the City if the Crossing, or any portion thereof, interferes with or is
needed for any Metra or railroad purposes as determined by Metra in its sole discretion or the City
violates any of the terms, conditions or provisions set forth in this Agreement. In case of
termination, Metra may remove the Crossing from the Easement Premises and restore the Easement
Premises to a condition similar to that which existed prior to the construction and installation of the
Crossing or, if Metra shall so elect,Metra may treat the Crossing as abandoned by the City and make
such disposition thereof as it may see fit.
12. Notwithstanding anything to the contrary contained in this Agreement, Metra shall incur no
liability whatsoever to the City or any other party for the failure of or defect in the title or estate of
Metra in and to the Easement Premises and Metra makes no warranties or guarantees whatsoever as
to the condition or state of Metra's title to the Easement Premises.
13. Prior to commencement of the City's use of the Crossing, the City shall self-insure or
purchase the following insurance coverage. The total cost of the premium for such insurance shall
be at the expense of the City:
(a) Comprehensive General Liability Insurance (ISO Form).
The City 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$2,500,000 single limit,bodily injury 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.
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(b) Railroad's Protective Liability Insurance.
In addition to the above, the City shall furnish evidence, with respect to the
operations it performs, that it has provided Railroad Protective Public Liability Insurance (AAR-
AASHTO form) in the name of Metra, the RTA, the NIRCRC, ME 1'RA/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
The City shall furnish evidence that,with respect to the Qperations it performs,
it carries a policy complying with the statutes of the State of Illinois covering all employees of the
the City. The policy shall contain employers liability coverage with limits of not less than$100,000
each accident; $100,000 each employee disease; and $500,000 policy limit-disease.
(d) Automobile Liability Insurance.
The City shall furnish evidence that,with respect to the operations it performs,
it carries a policy issued to and covering the liability of the City, 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 the State of Illinois and which are not covered under the Comprehensive
General Liability Insurance. Coverage under this policy shall have limits of liability of not less than
$2,500,000 per occurrence, combined single limit, for bodily injury and property damage liability.
Failure to carry or keep such insurance in force during the term of this Agreement shall constitute
a violation of the Easement. The City shall furnish to Metra a certificate of insurance for the
Comprehensive General Liability Insurance and the original of the AAR-AASHTO policy for
Railroad's Protective Public Liability Insurance. The City's failure to obtain proper insurance
coverage or to insure Metra, the RTA or the NIRCRC as additional insureds shall not, at any time,
operate as a waiver of Metra's right to indemnification and defense against any claims, damages or
injuries covered under the terms and provisions of this Agreement.
14. All rights, benefits, privileges and the easement granted, created or reserved herein, and all
impositions undertakings and obligations imposed herein, shall be deemed and taken to be covenants
running with the land and shall extend to, be binding upon and inure to the Parties and their
respective successors and assigns and any persons from time to time owning or having an interest
in the Easement Premises.
15. All payments required to be made by the City to Metra under the terms, conditions or
provisions of this Agreement shall be made within sixty (60) days of the City's receipt of any
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demand or invoice from Metra evidencing the amount of the indebtedness due. Payments not made
within said sixty (60) day period shall accrue interest at a rate of one and one half percent (1 1/2%)
per month or the highest amount permitted by Illinois law,whichever is less, from the date payment
is due until paid.
16. All notices, demands and elections required or permitted to be given or made by either Party
upon the other under the terms of this Agreement 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, hand delivered or facsimile transmission
with proof of successful transmission sent in the U.S. mail within two (2) days of transmission, 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 delivery if hand delivered or on the day of successful transmission.if sent by facsimile
transmission.
(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 the City shall be sent to:
Joyce A. Parker, City Manager
150 Dexter Court
Elgin, IL 60120-5555
Phone: 847/931-5590
Fax: 847/931-5610
17. 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 the City 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
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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 time for performance shall be the next business day. This Agreement constitutes
the entire agreement between the Parties with respect to the subject matter hereof.
IN WITNESS WHEREOF,this Agreement is executed by the Parties on this 02,5// day
of J-k,,.,,ary , 200gf.(
COMMUTER RAIL DIVISION OF THE CITY OF ELGIN:
REGIONAL TRANSPORTATION
AUTHORITY:
By. By: %cf--ram L=��!/�rG
Phili• •••i •, ecutive Director
Its: gi 4/
ATTEST: ATTEST:
--e���/L(jy� By: -0 U t— - —
v Assistant Secretary
Its: C, i r X C 4C. E/2 /c
Gradecro.agt:August 1,2000 /
zoo1 K 01 1644
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I,the undersigned, a Notary Public, in and for the County and State aforesaid,DO HEREBY
CERTIFY that Philip A. Pagano, personally known to me to be the Executive Director of the
Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois
municipal corporation, and hE R 45 f 4, 0,1) ,personally known to me to
be the Assistant Secretary of said Corporation, and personally known to me to be the same persons
whose names are subscribed to the foregoing instrument, appeared before me this day in person and
acknowledged that as Executive Director and Assistant Secretary of said Corporation, they signed
and delivered the said instrument in their official capacities pursuant to authority given by the Board
of Directors of said Corporation and as the free and voluntary act and deed of said Corporation, for
the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 5"-rd day of ..i tujd IR 1 , 2000.
Notary ublic
(SEAL)
8
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY
CERTIFY that Ed Schock , personally known to me to be the
Mayor of the City of Elgin, an Illinois municipal corporation,
and Dolonna Mecum personally known to me to be the
City Clerk of said City, and personally known to me to be the
same persons whose names are subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged that as Mayor and
City Clerk of said City, they signed and delivered the said instrument
in their official capacities pursuant to authority given by thecdEgx City Council and
as the free and voluntary act and deed of said City, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 1st day of December , 2000.
j‘/%.t-
Jotary Public
(SEAS*)'. a.A. .l►
OFFICIAL SEAL
SUELLYN LOSCH
NOTARY PUBLIC, STATE OF ILLINOIS ;
My Commission Expires Oct. 27, 2002
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