97-70 e
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 IT'S SUPPORTING PAPERWORK.
REFERENCE: RESOLUTION NO. 97-70
SUBJECT: EASEMENT AGREEMENT WITH METRA FOR THE
WIDENING OF KIMBALL STREET
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Resolution No. 97-70
RESOLUTION
AUTHORIZING EXECUTION OF A GRADE CROSSING
EASEMENT AGREEMENT WITH METRA
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
grade crossing easement agreement on behalf of the City of
Elgin with Metra for the widening of Kimball Street, a copy of
which is attached hereto and made a part hereof by reference.
Kevin Kelly, Mayor
Presented: February 26, 1997
Adopted:
Vote: Yeas Nays
Recorded:
Attest:
(Pk
Dolonna Mecum, City Clerk
GRADE CROSSE 1G 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".
City desires to obtain from Metra and Metra desires to grant to City a non-exclusive
easement for roadway purposes over that portion of Metra's tracks and right of way at grade
located on Metra's Milwaukee District, West Line, and Metra property easterly and adjoining
said right of way in Elgin, Illinois, legally described and delineated on the Plat of Easement
attached to and made a part of this Agreement as Exhibit "A" ("Easement Premises").
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) in
hand paid by City to Metra, the covenants and conditions set forth in'this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged
by the Parties, Metra does hereby grant and convey to City a non-exclusive easement over the
Easement Premises for roadway purposes ("Crossing") subject to the following covenants,
conditions and restrictions:
1. This Agreement and the rights granted to City hereunder shall at all times be subject and
subordinate to the Agreement between Metra and the Illinois Department of Transportation dated
July 22, 1992, attached to and made a part of this Agreement as Exhibit "B" ("IDOT
Agreement"). At Metra's option, City shall pay any costs and assume any obligations imposed
on Metra under the terms and conditions of the IDOT Agreement resulting from Metra's
construction of the Crossing or the easement granted under the terms of this Agreement.
2. All construction, repair, replacement, relocation and maintenance of said Crossing shall
be performed by Metra at the sole cost and expense of City in accordance with plans and
specifications prepared by City and approved by Metra and reasonable rules and regulations from
time to time promulgated by Metra.
Gradebro.ag, November 21.1996
3. City agrees that it will, immediately upon receipt of a statement showing the amount
thereof, pay to Metra 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 Crossing.
4. Any rights to the Easement Premises not specifically granted to City herein are reserved
to Metra and its successors and/or assigns. The Crossing shall be designed 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 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. 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 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 parry
rights over, under, across or parallel to the said Crossing.
5. 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, at the sole cost and
expense of City, after having given City thirty (30) days prior written notice of its intention to
make such changes.
6. 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 City's use of said Crossing is
subordinate to the operation of a railroad by Metra, its successors, assigns, licensees, permittees
or tenants.
7. If deemed necessary by Metra, a flagman will be provided by Metra at the sole cost and
expense of City.
8. If the use of said 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 City
shall, 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
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. City shall
felk
Gradecro.agr,November 21. 1946 2
forever protect, defend, indemnify and hold Metra harmless against and from any and all costs,
losses, damages, fines or penalties arising from City's failure to comply with the provisions of
this paragraph.
9. 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 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. Notwithstanding anything in
this Agreement to the contrary, the waivers and releases contained in this paragraph shall survive
termination of this Agreement.
10. 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. 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 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 City or those performing on
behalf of or with the authority of 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.
Cradeero.ag:November 21. 1996 3
•
l I. All riall immediately revert permanently to Mvacate,et if City vacates,
abandons or ceases ghts to and use interest the Crossing in the with Crossing the sh intent to abandon ra
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. Upon such loss of rights and interests
in the Crossing, City shall be held liable for the costs of removing improvements and restoring
the Crossing to its original condition. In the event of such reversion or abandonment, City shall,
upon request of Metra, execute and deliver to Metra an instrument in proper form releasing
City's rights in the Crossing.
12. This Agreement and the easement granted herein may be terminated by Metra effective
immediately upon notice to 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 City
violates any of the terms, conditions or provisions set forth in this Agreement. In case of
termination, Metra shall remove from the Easement Premises said Crossing and shall restore said
Easement Premises to the same or better condition than that which existed prior to the
construction and installation of said Crossing and the total cost hereof shall be paid by City or,
if Metra shall so elect, Metra may treat the said Crossing as abandoned by City and make such
disposition thereof as it may see fit.
13. Notwithstanding anything to the contrary contained in this Agreement, Metra shall incur
no liability whatsoever to 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.
14. City shall self-insure or obtain and keep in force the types and amounts of insurance
covering the Crossing as set forth on Exhibit "C" attached to and by this reference made a part
of this Agreement. City shall furnish Metra an original certificate evidencing said insurance
prior to its use of the Crossing. Such insurance certificate shall evidence a commitment by the
insurer to notify Metra in writing of any material change, expiration or cancellation of the
insurance required hereunder not less than 30 days before such change, expiration or cancellation
is effective.
15. 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.
16. All payments required to be made by City to Metra under the terms, conditions or
provisions of this Agreement shall be made within sixty (60) days of City's receipt of any
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.
Gr decro.ay..November 21. 1996 4
17. 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, facsimile transmission or
hand delivered to the respective addresses shown below or to such other party or address as
either Party may from time to time furnish to the other in writing. Such notices, demands,
elections and other instruments shall be considered delivered to recipient on the second business
day after deposit in the U.S. Mail, on the day of successful transmission if sent by facsimile
transmission or on the day of delivery if hand delivered.
(a) Notices to Metra shall be sent to:
Commuter Rail Division
547 W. Jackson Boulevard
Chicago, Illinois 60661
Attn: Director, Real Estate & Contract Management
Phone: (312) 322-8010
Fax: (312) 322-4288
(b) Notices to City shall be sent to:
Phone:
Fax:
18. 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 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 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.
Grackero.agt:November 21. ENE. 5
IN WITNESS WHEREOF, this Agreement is executed by the Parties on this day of
199
COMMUTER RAIL DIVISION OF THE CITY OF ELGIN:
REGIONAL TRANSPORTATION
AUTHORITY:
By: By:
Philip A. Pagano, Executive Director
Its:
ATTEST: ATTEST:
By: By:
Elisabeth M. Murphy
Assistant Secretary Its:
Gr decro.agt:November 21. 1996 - 6
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 Elisabeth M. Murphy, 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 day of 1996.
Notary Public
(SEAL)
Gndeero.Sgt:November 21. 1996 7
STATE OF ILLINOIS )
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO
HEREBY CERTIFY that , personally known to me
to be the of the City of Elgin, an Illinois municipal
corporation, and personally known to me to be the
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 and
of said City, they signed and delivered the said instrument
in their official capacities pursuant to authority given by the Board of
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 day of , 1996.
Notary Public
(SEAL)
Gradcero.agc November 21, 1996 8
PLAT OF EASEMENT
OF PROPERTY DESCRIBED AS FOLLOWS:
That part of the Northeast Quarter of Section 14, Township 41 North, Range 8 East of the
Third Principal Meridian, in the City of Elgin, Kane County, Illinois described as follows:
Commencing at the Southwest corner of Lot 29 in Block 23 of William C. Kimball's
Second Addition to Elgin being a subdivision in said Section 14; thence North 60 degrees 06
minutes 55 seconds East, (assumed bearing), 174.00 feet along the Southeast line of said Lot
29 to the west bank of the Fox River for the Point of Beginning; thence North 20 degrees 25
minutes 20 seconds West. 49.32 feet along said west bank to the center line of Kimball Street;
thence South 76 degrees 04 minutes 25 seconds West, 31.26 feet along said center line to the (\ '
Northeast right-of-way line of the Metra/Milwaukee District West Line Railroad; thence North -)\y —
30 degrees 13 minutes 08 seconds West, 37.51 feet along said Northeast line; thence South 76
degrees 04 minutes 25 seconds West, 52.09 feet parallel with the center line of Kimball Street to
the Southwest right-of-way line of said railroad; thence South 30 degrees 13 minutes 08 seconds
East, 37.51 feet along said Southwest line to the center line of Kimball Street; thence North 76
1 degrees 04 minutes 25 seconds East.' 2.08 feet along sold center line to the Southwest right-of-
way line of said railroad; thence South 30 degrees 13 minutes 08 seconds East, 51.05 feet along
• said Southwest line: thence North 76 degrees 04 minutes 25 seconds East, 72.52 feet parallel
with the center line of Kimball Street to the Point of Beginning.
■
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I Said easement contains 5,643 square feet, more or less. n.
SCALE'. l''.= 20.
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\\ 74'
I PROPOSED
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S PROPOSED EASEMENT .� -
UNE�R.O.W. LINE i,•�5"
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`jam J.,' .�. • 001 - 31 2 .. 'N ,'\\'.•. •Si.°d': .,"' *7771' %' S 16'04::2''' . � • �
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EXISTING N 76 0 / s.a.
CENTER
LINE S 1►` 2.08'
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PROPOSED LOT 29 25 E P.o.e.
LINE BLOCK 23 % t4 1b,
. t; !`' ' ♦
-\\-PROPOSED
EASEMENT w• .,.
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c.r/ LOT 28
- \ 0-1%,
I, Dale A. Terry. Professional Illinois Land Surveyor, do hereby certify that this
easement plot was prepared under my direction and is true and correct to the best
r of my knowledge and belief.
Dimensions are given in feet and decimals thereof unless Indicated of erwise.
Dated this 1st day of November. A.O.• 1996. PREPARED BY:
HAMPTON, LENZINI AND REN`uICK INC.
380 SHEPARD DRIVE
— I _' ' ^ ),r/�/ ELGIN, ILLINOIS 50123-7010
Y'i GP (347) 697-6700
Dale A. Terry d ACCOUNT NO. 2-05-1236 (x)
Professional Illinois Land Surveyor No. 2533 FILE NO. 25123601.dwg
,cy OF Etc
Lam ,, >y
° City of Elgin
Agenda Item No.
TATE D<<�r
February 19 , 1997
TO: Mayor and Members of the City Council
FROM: Robert O. Malm, Interim City Manager
SUBJECT: Grade Crossing Easement Agreement with METRA
Associated with the Widening and Reconstruction
of Kimball Street
PURPOSE
The purpose of the memorandum is to provide the Mayor and
members of the City Council with information to consider
executing a Grade Crossing Easement Agreement with METRA for
the widening of Kimball Street within their right-of-way.
BACKGROUND
e` As part of the Kimball Street widening and reconstruction,
the METRA street grade railroad crossing needs to be widened.
In order to do this work the City needs to obtain an easement
from METRA to accommodate the widened roadway on their
property. In addition to the need for an easement, the City
will be required to pay all costs associated with the
construction, replacement and relocation of METRA' s
facilities in order to accommodate the roadway widening.
A copy of the Grade Crossing Easement Agreement (Exhibit A)
and estimate of cost (Exhibit B) to perform the grade
crossing construction work is attached.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None.
FINANCIAL IMPACT
The cost to obtain the easement from METRA is $10 . 00 . The
estimated cost to perform the grade crossing work is
$214 ,914 . This expenditure is included in the overall Kimball
St. project and will be funded from proceeds of the 1996
General Obligation Bond sale. Monies are budgeted in Account
No. 396-1000-795 . 93-80, Project No. 339553 .
LEGAL IMPACT
None.
Grade Crossing Easement Agreement with METRA
February 19 , 1997
Page 2
ALTERNATIVES
None.
RECOMMENDATION
It is recommended that the City Council approve the Grade
Crossing Easement Agreement with METRA and authorize the City
Manager to execute the agreement at a cost of $10 . 00 for the
easement and $214 , 914 . 00 for the grade crossing work for a
total cost of $214,924 . 00 .
Respectfully submitted,
iz7-2-J11-
David L. Lawry, . .
D' - •r of Pu i Works rt ob: O. Maim
Interim City Manager
SP/do
Attachments Alim