HomeMy WebLinkAbout98-206 Resolution No. 98-206
RESOLUTION
AUTHORIZING EXECUTION OF A PEDESTRIAN SIDEWALK EASEMENT
AGREEMENT WITH THE COMMUTER RAIL DIVISION OF THE
REGIONAL TRANSPORTATION AUTHORITY
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Kevin Kelly, Mayor, and Dolonna Mecum, City
Clerk, be and are hereby authorized and directed to execute a
Pedestrian Sidewalk Easement Agreement with the Commuter Rail
Division of the Regional Transportation Authority for the
construction of a sidewalk along North McLean Boulevard.
BE IT FURTHER RESOLVED that the City Clerk is hereby
authorized and directed to cause the Easement to be recorded in
the Office of the Recorder of Deeds of Kane County, Illinois .
s/ Kevin Kelly
Kevin Kelly, Mayor
Presented: August 26 , 1998
Adopted: August 26 , 1998
Omnibus Vote: Yeas 7 Nays 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
547 W. Jackson Blvd. Chicago, Illinois 60661 Telephone:312-322-6900 TTY# 1-312-322-6774
October 23 , 1998
Mr. Joseph Evers, P.E.
City Engineer
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
Subject: Pedestrian Sidewalk Easement Agreement No. N00828
McLean Blvd.
Dear Mr. Evers:
Attached for your recoreds is a fully executed original of the
Pedestrian Sidewalk Easement Agreement No. N00828. This
agreement covers the placement of a sidewalk across Metra's right
of way and tracks at McLean Blvd.
Sincerely,
6AA,
James W. Burcham, Director
Office of Real Estate and Contracts
JWB:jh
cc: F. Leonard
W. Tupper - City of Elgin would like this sidewalk
coordinated with the renewal of the McLean Blvd.
grade crossing.
M. Smith
J. Pebler
1R17 ' � II�
OCT 2 7 1996
CITY OF ELGIN
ENGINEERING DEPT.
Metra is the registered service mark for the Northeast Illinois Regional Commuter Railroad Corporation.
N00826
PEDESTRIAN SIDEWALK 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("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 the covenants and agreements hereinafter
stated, Metra hereby grants to Grantee an easement("Easement")across that portion of Metra's right_
of way and tracks (or track, as the case may be) delineated on the plans attached to and made a part
of this Agreement as Exhibit "A" ("Premises"), for use as a pedestrian sidewalk, including gutters
and curbs, and thereafter to maintain, repair, operate and renew the same during the continuance of
this Easement in accordance with the terms and provisions of this Agreement.
This Easement is granted upon the following express conditions, terms and covenants to be
observed, kept and performed by Grantee:
1. As one of the considerations for this Easement, Grantee agrees to pay to Metra the
sum of$800.00 for the cost of preparing this Easement, payable in advance.
2. Metra shall construct, install and forever maintain an approximately forty (40) foot
long portion of said pedestrian sidewalk across the right of way delineated on the plans attached to
and made a part of this Agreement as Exhibit"A"("Metra Improvements"). Grantee shall reimburse
Metra in full for all costs associated with construction, installation, and maintenance of the Metra
Improvements. Such costs will be payable to Metra by Grantee within thirty (30) days of
presentation of a bill by Metra, but such construction and installation costs shall not exceed the sum
of Thirty Eight Hundred Dollars ($3,800).
Elgin.Sidewalk.Ag:June 22,1998 1
i
3. Metra shall construct and forever maintain, at Metra's cost and expense, the gates,
lights, and bells located on either side of Metra's right of way and tracks as delineated on Exhibit
4. Grantee shall construct, install and forever maintain the remaining portion of the
pedestrian sidewalk and adjoining curb and gutter improvements, exclusive of the Metra
Improvements located on the Premises ("Sidewalk Improvements") in accordance with
-specifications and materials approved by Metra. Grantee shall construct the Sidewalk Improvements
in such a manner so as not to interfere with the existing drainage of the Premises or any other Metra
property ("Property")and shall clean and extend existing highway culverts as required by Metra or
any other governmental entity having jurisdiction over the Premises or Property to insure proper
drainage of the Premises and the Property. Grantee agrees to construct and at all times maintain the _
Sidewalk Improvements so as to protect any and all other improvements now or hereinafter located
on the Premises or the Property. All of said work shall be done at Grantee's sole cost and expense,
in a good and workmanlike manner, and in accordance with the requirements of the plans,
specifications, and profiles approved by Metra.
5. Upon completion of the initial construction of the Sidewalk Improvements, and upon
completion of any subsequent reconstruction, replacement, repair or maintenance of the Sidewalk
Improvements subsequent to its construction,Grantee,at its own cost and expense, shall remove any
debris and restore, or cause to be restored to the reasonable satisfaction of Metra, any affected
portion of Metra's property adjacent to the Premises as nearly as may be, to the same or better
condition than that which existed immediately prior to commencement of such activities by Grantee.
In the event Grantee fails to cause the Property to be restored to the reasonable satisfaction of Metra
as provided for herein, Metra shall have the right to restore the Property and Grantee shall reimburse
Metra for all costs and expenses incurred by Metra in its performance of the obligations imposed
upon Grantee hereunder.
6. Metra shall permit Grantee reasonable right of access to the Premises for the purpose
of constructing,replacing, repairing, maintaining and operating said Sidewalk Improvements. Prior
to undertaking any constructing,replacing,repairing,or maintaining of said Sidewalk Improvements
or on any portion of the Premises, Grantee will arrange for a flagman to be provided by Metra, the
cost of such services to be paid by Grantee.
7. Any rights to the Premises not specifically granted to Grantee herein are reserved to
Metra and its successors and/or assigns. The Sidewalk Improvements shall be constructed,repaired,
maintained, utilized 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's tenants or permitees
on the Premises and so as not to prevent or unreasonably interfere with use and enjoyment of the
Premises by Metra, its employees, agents or permittees for the purpose(s) to which the Premises is
now, or may hereafter be, committed by Metra. 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 track or tracks and other improvements as Metra may in the future construct or
Elgin.Sidewalk.AgOune 22,1998 2
cause to be constructed over, under, across, or parallel to said Sidewalk Improvements. This
Easement is expressly subject to the rights of third parties to maintain utility and other 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 Sidewalk Improvements.
8. Grantee shall be responsible for maintaining, repairing, replacing and operating any
portion of said Sidewalk Improvements not maintained by Metra.
9. Grantee shall not place, keep, store or otherwise permit to be placed, kept or stored
on or near 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
motorized vehicle of any kind on the Premises, on or near any track or on or near 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 vehicular public
crossing of Metra's tracks and rights of way.
10. Grantee agrees that it will 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 Sidewalk Improvements. Such costs will be
payable to Metra within thirty (30) days of presentation of a bill by Metra.
11. Grantee shall give to Metra reasonable advance written notice of the time when
Grantee will commence any construction, replacement, repair or maintenance of said Sidewalk
Improvements 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.
12. Grantee agrees that before and during the construction, replacement, repair,
maintenance or operation of said Sidewalk Improvements, 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.
13. Grantee agrees that should the construction, maintenance, operation, repair or
presence of the Sidewalk Improvements necessitate any change or alteration in the location or
arrangement of any 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 a point
of crossing or at any point along a parallel course with the Sidewalk Improvements for any purpose
whatsoever, including but not limited to track installations by Metra or third parties, Grantee, at its
Elgin.Sidmalk.AgOune 22,1998 3
own cost and expense, shall alter, relocate or make all changes to the Sidewalk Improvements
required by Metra. If Grantee shall fail, neglect or refuse to relocate or make such change(s)to the
Sidewalk Improvements for a period of ninety (90) days after the receipt of written notice from
Metra, then Metra may make or cause to be made such relocation or change(s) at the expense of
Grantee.
14. Grantee shall at all times use and operate said Sidewalk Improvements in a secure,
safe and sanitary condition and in accordance with all applicable laws, ordinances, rules and
regulations. Grantee shall take all reasonable safety precautions to adequately secure the Premises,
warn of risks and ensure the safety of the public, when necessary, during periods of use and
operation of the Sidewalk Improvements. If the manner of constructing, repairing, maintaining,
replacing or operating said Sidewalk Improvements shall at any time be in violation of any
applicable law,rule, regulation or ordinance, then Grantee, at no cost or expense to Metra and upon
receipt of appropriate notice from a governmental agency having enforcement jurisdiction over the
Premises, shall make such changes or repairs as shall be necessary. Failure or refusal of Grantee to
make the required changes or repairs within the time prescribed by said agency shall terminate this
Easement, provided that it shall not terminate as long as Grantee, in good faith and by pursuit of
appropriate legal or equitable remedies, enjoins, defends against, appeals from or pursues other
lawful measures to avoid the enforcement of said laws, ordinances, rules or regulations.
15. To the fullest extent permitted by law, Grantee hereby assumes and agrees to release,
acquit and waive any rights against and forever discharge Metra, the Commuter Rail Board of the
Regional Transportation Authority("RTA") and the Northeast Illinois Regional Commuter Railroad
Corporation ("NIRCRC"), their respective directors, administrators, officers, employees, agents,
successors, assigns and all other persons, firms and corporations acting with or upon their 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 Grantee, its employees, officers, agents
and all other persons acting on its behalf while on the Premises or the Property. Notwithstanding
anything in this Easement to the contrary,the releases and waivers contained in this paragraph shall
survive termination of this Easement.
16. To the fullest extent permitted by law, Grantee agrees to indemnify, defend and hold
harmless Metra,the RTA and the NIRCRC,their respective directors,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 and attorneys' fees) 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 Grantee's or the public's use of or the condition of the
Premises except to the extent such injuries, liabilities, losses, damages, costs,payments or expenses
are caused by the actions,omissions or negligence of Metra,the RTA or the NIRCRC. Metra agrees
to notify Grantee in writing within a reasonable time of any claim of which it becomes aware which
may fall within this indemnity provision. Grantee further agrees to defend Metra, the RTA, the
Elgin.Sidewalk.AgOune 22,1998 4
NIRCRC, their respective directors, administrators, officers, agents and employees 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, the RTA and the NIRCRC, may elect to
participate in the defense 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.
17. Prior to commencement of the Sidewalk Improvements to be performed on or about
the Premises under the terms of this Easement, Grantee shall self-insure or 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 $2,500,000 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.
(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
Elgin.Sidewalk.AgOune 22,1998 5
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 employees of the Grantee or contractor, as applicable. 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.
Grantee or its contractor shall furnish evidence that, with respect to the
operations it performs, it carries a policy issued to and covering the liability 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 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.
The insurance hereinabove specified shall be carried until all work required to be performed under
the terms of this Easement is satisfactorily completed and formally accepted. Failure to carry or
keep such insurance in force until all work is satisfactorily completed shall constitute a violation of
the Easement. Grantee or contractor shall furnish to Metra signed copies of the policy for
Comprehensive General Liability and the original of the AAR-AASHTO policy for Railroad's
Protective Public Liability Insurance. If any work is sub-contracted, Grantee or contractor shall
furnish a signed copy of the policy for Comprehensive General Liability Insurance.
18. This Easement may be terminated by Metra effective immediately upon notice to
Grantee if the Premises, or any portion thereof, is needed for any Metra or railroad purposes as
determined by Metra in its sole discretion or Grantee ceases to operate or maintain the Sidewalk
Improvements or violates any of the terms, conditions or provisions set forth in this Easement. This
Agreement may be terminated by Granteefor any reason effective thirty(30) days after giving Metra
notice of Grantee's intention to terminate. In case of termination by either Metra or Grantee, Metra
may, at its sole option,remove from the Premises the Metra and Sidewalk Improvements and restore
said Premises to the same or to a better condition than that which existed prior to the construction
and installation of said Metra and Sidewalk Improvements and the total cost thereof shall be paid
by Grantee; or, if Metra shall so elect, it may treat the said Sidewalk Improvements as abandoned
by Grantee and may make such disposition thereof as it may see fit.
19. This Easement and all of the terms, conditions, rights and obligations herein
contained shall inure to and be binding upon the Parties, their respective legal representatives,
Elgin.Sidewalk.AgUune 22,1998 6
lessees,permitees, successors and/or assigns whether hereinabove so stated or not; but it is distinctly
agreed that Grantee shall not assign its rights under this Easement without first having received the
prior written consent of Metra.
20. All payments required to be made by Grantee to Metra under the terms, conditions
or provisions of this Easement shall be made within thirty (30) days of Grantee's receipt of any
demand or invoice from Metra evidencing the amount of the indebtedness due. Payments not made
within said thirty (30) 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.
21. All notices, demands and elections required or permitted to be given or made by
either Parry 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, 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, 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
(b) Notices to Grantee shall be sent to:
City Manager
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
Phone: 847-931-6100
22. 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
Elgin.Sidewalk.AgOune 22,1998 7
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 time for performance shall be the next business day. This Easement constitutes
the entire agreement between the Parties with respect to the subject matter hereof.
23. This Agreement shall not be construed to create a joint venture, partnership,
employment or any other kind of agency relationship of any kind between the Parties except to the
specifically provided otherwise under the terms and provisions of this Agreement.
IN WITNESS WHEREOF,the P ies hereto have duly executed this Easement Agreement as of
this_��day of , 1998.
COMMUTER RAIL DIVISION OF THE THE CITY OF ELGIN:
REGIONAL TRANSPORTATION
AUTHORITY:
By:
o, xecutive Director
Its: / " /tet 0i^
ATTEST: ATTEST:
Elgin.Sidewalk.AgOune 22,1998 8
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Gi ty Of Elgin Agenda Item No.
August 3 , 1998
TO: Mayor and Members of the City Council
FROM: Joyce A. Parker, City Manager
SUBJECT: Easement Agreement with Metra for North
McLean Boulevard Sidewalk Construction
PURPOSE
The purpose of the memorandum is to provide the Mayor and
members of the City Council with . information to consider the
approval of an easement agreement with Metra for the construc-
tion of sidewalk across their right-of-way.
BACKGROUND
The City is desirous of constructing a sidewalk along the east
side of North McLean Boulevard from Big Timber Road south to
• Timber Drive . Improvements to Big Timber Road and McLean
Boulevard were completed in 1993 . Sidewalk was not done as a
part of this improvement because an agreement could not be
reached with Metra at that time . Metra is now agreeing to
allow a sidewalk to be constructed under the terms of the
attached agreement . In accordance with the agreement, the City
will pay Metra to install sidewalk across and through the dual
tracks . Metra will also install required pedestrian gates at
no cost to the City. These pedestrian gates cost approximately
$75, 000 . Once Metra has installed the sidewalk across the
tracks, the City will install sidewalk extending from the
tracks to the curb line of both Timber Drive and Big Timber
Road (see attached sketch) .
The City' s work would also include widening both curb returns
on the south side of the Big Timber Road/McLean Boulevard
intersection. All signal and structure modifications were
completed with the Big Timber widening of 1993 .
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
Metra.
rA,,,_�FINANCIAL IMPACT
The agreement requires that an $800 documentation fee be paid
to Metra prior to the start of sidewalk construction.
Easement Agreement with Metra
August 3 , 1998
Page 2
• The construction of the sidewalk and curb is scheduled to take
place in 1999 and will be included as part of the 1999 budget .
The sidewalk and curb are estimated to cost approximately
$48, 800, including Metra ' s portion of $3 , 800 . An agreement
for the engineering consultant and the contract will be
forwarded to the City Council for review at a later date .
The City would be responsible for maintenance costs of the
sidewalk across Metra ' s right-of-way except the portion
constructed by Metra .
The $800 documentation fee can be charged against Miscellane-
ous Professional Services within the Public Works-Engineering
Division budget - account number 010-3311-752 . 45-99 . Suffi-
cient funds remain to make this expenditure .
,LEGAL IMPACT
None .
ALTERNATIVES
None .
RECOMMENDATION
• It is recommended that City Council authorize the execution of
the easement agreement and direct staff to prepare a check for
$800 to be issued to Metra.
Respectfully sub ' t/ed,
a I
4Jce Parker
City Manager
JE/do
Attachment
II