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98-165 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. 98-165 PASSED: JULY 8, 1998 SUBJECT: COMMONWEALTH EDISON COMPANY AGREEMENT WITH CITY OF ELGIN ACCEPTING A GRANT FOR PUBLIC ROADWAY FOR THE PROPERTY ADJACENT TO SHALES PARKWAY )F L LW i- • • Ifl „--., FROM ( ) .0-di . .. 7 7:--' - '... 7L 7)V- f'n 4-61^— C,. ' /1 alf, SUBJEC . ... " ..- A / . .a.sL. lit!I 1 . .../_ ....4....,....... _ , „r, ...„. I- di.• , A JP_ „„. _ I •TE OW , 1 4 e /` tl. I T , a' ', ,-/ , r , „CA• .,-. i _ . , -1(7 e.....6 (C5-r,1/ cn.i = , .8 ---,P- a / ..tiv1 J 0 ,---1 ft ---.4 „ /7 .-Z, 012 -44, .Z—r-, CS,..../frei_ -,1 6 , 7 % 7 / '-'° `- A-Q-/---‹ .CL-A--L)-(21 1:-, -&-( I / i SIGNED , 1/ 11),, i A 4---"" I WilsonJones® WHITE-ORIGINAL ORIGINAL CANARY-DUPLICATE pk. i 44-900.Duplicate tol' t. ,,,,t,1 ,(,,, 36,6_,,,z 6„,,y ,,eiz x2,,t, 7uty'LL-L-si .Ao / 2 /ts1-4-6-t.0 tt-Ljk 'Yil•A (..,...0\9-4 ce-v ----g c . /u24-- ,e -e7- 1--- toe ôLt ' f:etc...___ __ F . Resolution No. 98-165 RESOLUTION ACCEPTING A GRANT FOR PUBLIC ROADWAY FROM THE COMMONWEALTH EDISON COMPANY (Shales Parkway/Bode Road) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that it hereby accepts a Grant for Public Roadway from Commonwealth Edison Company for the property adjacent to Shales Parkway and legally described described on the attached Grant for Public Roadway. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the Plat of Easement to be recorded in the office of the Recorder of Deeds of Cook County, Illinois . s/ Kevin Kelly Kevin Kelly, Mayor Presented: July 8, 1998 Adopted: July 8, 1998 Omnibus Vote: Yeas 7 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk Resolution No. 98-165 RESOLUTION ACCEPTING A GRANT FOR PUBLIC ROADWAY FROM THE COMMONWEALTH EDISON COMPANY (Shales Parkway/Bode Road) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that it hereby accepts a Grant for Public Roadway from Commonwealth Edison Company for the property adjacent to Shales Parkway and legally described described on the attached Grant for Public Roadway. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the Plat of Easement to be recorded in the office of the Recorder of Deeds of Cook County, Illinois . s/ Kevin Kelly Kevin Kelly, Mayor Presented: July 8, 1998 Adopted: July 8, 1998 Omnibus Vote: Yeas 7 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk • r.X44 OF rLo C'‘ `�� City of Elgin Agenda Item No. rbkDFE�~�^ June 12 , 1998 TO: Mayor and Members of the City Council FROM: Joyce A. Parker, City Manager SUBJECT: Permanent Easement for Shales Parkway Construction Project PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider acceptance of a permanent easement agreement for the Shales Parkway improvements on the Commonwealth Edison right-of-way adjacent to Shales Parkway. BACKGROUND The City awarded the construction contract for Shales Parkway Section 2 at the March 11, 1998 City Council meeting. The design of Shales Parkway included two small permanent ease- ments on the Commonwealth Edison right-of-way at Bode Road. These easements were requested to provide sufficient room to construct curb returns for the Bode Road/Shales Parkway intersection (easements shown on attached exhibit) . At the time of award, Commonwealth Edison (ComEd) could not complete the necessary documents and allowed the City to proceed with construction while they worked on the documents . COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED J.L. Flanagan, ComEd (312) 394-8512 . /,)(k.,FINANCIAL IMPACT ComEd requires a $3 , 500 fee for the execution and granting of the easement document . Sufficient funds were included and remain in account number 275-0000-791 . 93-80 project number 339513 , Shales Parkway, to make this expenditure . 4W1/LEGAL IMPACT None. ALTERNATIVES None . Permanent Easements/Shales Pkwy June 12 , 1998 Page 2 RECOMMENDATION It is recommended that the City Council authorize the Mayor to execute the permanent easement agreement with Commonwealth Edison. Respectfully submitted, 4. Attno. j-0).„.„ J`yc A. Parker City Manager JE/do Attachment ,...") \ \ 1. `•. 1' 1 I Am 1COUNiflY BROOK IPE r3v FR.( 0 LD1 •SI -- J SIDE DEMOLITION 1� GAM P1 U I B�GiEi•ERISG 11E11 COUNTRY BROOK INV TNI•19599 I o; R 1♦ •. • 1 1 C:JNTRT BROOK LOT •<? 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BY on[ NO. e1 DRI[ DRA•N Iv 1,11/500 ROADWAY PLAN AND PROFILE rT:0.,R6 CITY ,I ELGIN R5-c< CHECKED B• ELGIN,ILLINOIS SHALES PARKWAY DALE z/9B _, S62150<vcro.S0.0•0. •i_/•00, ...., ..,., .PPROro 0 BY STA.82+90 TO STA.85+60 SHEE1 6 0: „11.[[79 emk Resolution No. 98-165 RESOLUTION ACCEPTING A GRANT FOR PUBLIC ROADWAY FROM THE COMMONWEALTH EDISON COMPANY (Shales Parkway/Bode Road) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that it hereby accepts a Grant for Public Roadway from Commonwealth Edison Company for the property adjacent to Shales Parkway and legally described described on the attached Grant for Public Roadway. BE IT FURTHER RESOLVED that the City Clerk is hereby authorized and directed to cause the Plat of Easement to be recorded in the office of the Recorder of Deeds of Cook County, Illinois . Kevin Kelly, Mayor Presented: July 8, 1998 Adopted: Vote: Yeas Nays Recorded: Attest: Dolonna Mecum, City Clerk • . FOR RECORDER'S PURPOSES GRANT FOR PUBLIC ROADWAY THIS Grant for Public Roadway is made, entered and granted on this day of , 1998,by and between COMMONWEALTH EDISON COMPANY, an Illinois corporation("Grantor"), and CITY OF ELGIN, an Illinois municipal corporation("Grantee"). WHEREAS, Grantor is the owner of a parcel of land in the City of Elgin, County of Cook and State of Illinois, commonly known as Parcel No. 36 and 37 of Grantor's Joliet-Crystal Lake Right of Way, described in Exhibit"A"attached hereto and made a part hereof("Grantor's Property"); and WHEREAS, Grantor utilizes Grantor's Property for Grantor's own business operations,which operations, for purposes hereof, shall include without limitation the construction, reconstruction, maintenance,repair,upgrade, expansion, addition, renewal, replacement, relocation, removal, use and operation of Grantor's equipment and facilities,whether now existing or hereafter to be installed, in, at, over, under, along or across Grantor's Property(collectively, "Grantor's Operations"). • WHEREAS Grantee at this time wishes to install and extend a public roadway across Grantor's Property. NOW,THEREFORE, in consideration of the payments, covenants,terms, and conditions to be made, performed, kept and observed by Grantee hereunder, Grantor hereby grants unto Grantee, without warranty of title, for the purpose of the curb improvement and development of Shales Parkway Roadway at theintersection of Bode Road, a perpetual easement for the right and privilege to use the property legally described as follows: Shale Parkway/Bode Road PARCEL 1 Part of the Northwest Quarter of Section 17, Township 41 North,Range 09 East of the Third Principal Meridian in Cook County,Illinois further described as follows: Commencing at the Southwest corner of the Northwest Quarter of said Section 17;thence North 88 degrees 44 minutes 18 seconds East along the south line of said Quarter Section a distance of 1181.19 feet to a point on the West line of the Commonwealth Edison Company right-of-way;thence North 00 degrees 30 minutes 53 seconds East along said West right-of-way line a distance of 50.00 feet to the point of beginning;thence North 00 degrees 30 minutes 53 seconds East continuing along said right-of- • • way line a distance of 35.00 feet; thence South 45 degrees 22 minutes 24 seconds East a distance of 48.72 feet; thence South 88 degrees,44 minutes, 18 seconds west a distance of 35.00 feet to the point of beginning, containing 0.014 acres (612.22 square feet), more or less PARCEL 2 Part of the Southwest Quarter of Section 17, Township 41 North, Range 09 East of the Third Principal Meridian in Cook County, Illinois further described as follows: Commencing at the Northwest corner of the Southwest Quarter of said Section 17; thence North 88 degrees 44 minutes 18 seconds East along the North line of said Quarter section a distance of 1181.19 feet to a point on the West line of the Commonwealth Edison Company right-of-way; thence South 00 degrees 31 minutes 11 seconds West along said West right-of- way line a distance of 10.00 feet to the point of beginning; thence North 88 degrees 44 minutes 18 seconds East parallel to said Quarter Section line a distance of 20 feet; thence South 44 degrees, 37 minutes, 44 seconds West a distance of 28.72 feet to a point on said West right-of- way line; thence North 00 degrees, 31 minutes, 11 seconds East along said West right-of-way line a distance of 20.00 feet to the point of beginning, containing 0.0046 acres (199.91 square feet), more or less. a. Construction and maintenance of a public roadway (Shale Parkway/Bode Road) across Grantor's property and shown in substantial conformity with the engineering plan and profile Sheet No. RP/DR-1, last revised April 16, 1998, prepared by Crawford, Murphy & Tilly, Inc., Consulting Engineers, for The City of Elgin, marked Exhibit "B", (hereinafter referred to as "Roadway") attached hereto and made a part hereof, and b. Construction and maintenance of curbs on said property in connection with said public roadway,provided that the same shall be constructed at an elevation and in a manner so as not to interfere with Grantor's ingress to and egress from its adjoining property by vehicle or otherwise, and This grant of easement is made by Grantor and accepted by Grantee under the following terms and conditions: 1. Grantee's Use. The following general conditions shall apply to Grantee's use of the Easement Premises: a. Grantee shall procure and maintain at its own expense,prior to entry upon rl Grantor's Property hereunder, all licenses, consents, permits, authorizations and other approvals Lf required from any federal, state or local governmental authority in connection with the construction, placement,use and operation of Roadway,and Grantee shall strictly observe all laws, rules, statutes and regulations of any governmental authorities having jurisdiction over the Easement Premises or Grantee's operations thereon. Grantor may from time to time request evidence that all such approvals have been obtained by Grantee and are in full force and effect. In no event shall Grantee seek any governmental approvals that may affect in any way Grantor's Operations, including without limitation any zoning approvals, without in each instance obtaining Grantor's prior written consent,which consent may be granted or withheld in Grantor's sole discretion. 2 • b. In the event any aspect of Grantee's construction,placement, maintenance, repair, use or operation of Roadway at any time violates or is forbidden by any law, statute, rule, regulation, order or requirement of any governmental authority, Grantee shall immediately discontinue such operations and at its own expense take all required corrective action, including without limitation removal of all or any portion of Roadway from Grantor's Property if required, within the lesser of(i)thirty(30)days from Grantee's notice of such violation or(ii)the period of time required by law for the correction of such violation. c. Grantee's use of the Easement Premises shall be conducted in a manner that does not conflict or interfere with Grantor's Operations. d. This Easement and the rights granted hereunder are subject and subordinate in all respects to all matters and conditions of record affecting the Easement Premises. e. Grantee's obligations and liabilities to Grantor under this Agreement with respect to Roadway and all other matters shall not be limited or in any manner impaired by any agreements entered into by and between Grantee and any third parties, including without limitation any agreements related to the construction or installation of Roadway, and Grantee shall be and remain liable to Grantor for the installation and operation of Roadway in accordance with the terms and conditions of this Agreement,notwithstanding Grantee's failure or refusal to accept delivery of or title to such facilities from any such third parties. f. Without limiting the generality of the foregoing,this Easement and the rights granted hereunder are subject and subordinate in all respects to the existing and future rights of Grantor and its existing lessees, licensees and grantees, existing roads and highways,the rights 11114) of all existing utilities,all existing railroad rights-of-way,water courses and drainage rights that may be present in Grantor's Property; including,but not limited to those prior rights as previously granted by Grantor to Northern Illinois Gas Company, and to the other users of record as located in,along Grantor's Property: If required,Grantee shall secure the engineering consent of such prior grantees as a prerequisite to exercising its rights hereunder and provide Grantor with a copy of the same. . r 2. Term. The term of this Easement shall be in perpetuity, pursuant to the terms, ;/!K. conditions and covenants of this Agreement, and shall commence as of the date first hereinabove written. 3. - Fee. In partial consideration of this Easement, Grantee shall,pursuant to the terms / and conditions as set forth in this Easement pay Grantor the sum of Three Thousand Five Hundred V ($3,500.00)Dollars for Grantor's expense for the review, execution, and the granting of this Agreement, which amount shall be due and payable to Grantor, prior to Grantor's execution and granting of this Agreement. 4. Rights Reserved to Grantor. a. Grantor hereby reserves unto itself, its grantees, licensees, lessees, successors and assigns the unrestricted right for ingress to and egress from and communication between Grantor's adjoining properties and for installation,operation,maintenance,renewal and removal of its or their facilities upon,over and under the surface of the property described above, as it or 3 • f r they shall see fit insofar as such uses are compatible with the improvements shown on exhibit «B„ b. Grantor reserves the right to grant additional access, utility and other leases, licenses, easements and rights hereafter to third parties through, under, over and across all or any portion of Grantor's Property, including the Easement Premises. 5. Restoration of Easement Premises. The following terms and conditions shall govern the rights and obligations of the parties with respect to restoration of the Easement Premises: a. Grantee agrees that, within thirty(30) days after the expiration or termination of this Easement for any reason,Grantee shall, at its cost,remove all of the Roadway from Grantor's Property and restore and repair Grantor's Property to the condition existing prior to the installation of the Roadway. In the event Grantee fails to so remove its Roadway and restore and repair Grantor's Property, Grantor may elect to do so at Grantee's cost and expense, and, in such event, Grantor may dispose of the Roadway without any duty to account to Grantee therefor. Grantee shall pay all costs and expenses incurred by Grantor in removing the Roadway, including any storage costs, and any costs incurred by Grantor in restoring and repairing Grantor's Property. Any facilities and equipment that Grantee fails to remove from Grantor's Property within thirty(30)days after the expiration or termination of this Easement shall be conclusively deemed to have been abandoned by Grantee and shall become the sole property of Grantor,without liability or obligation to account to Grantee therefor. 6. Condition of Grantor's Property. Grantor has made no representations or warranties of any kind or nature whatsoever,whether written or oral, concerning the suitability of Grantor's Property or the Easement Premises for the placement of Roadway thereon or Grantee's use of the Easement Premises for the purposes contemplated herein. In entering into this Agreement, Grantee has relied solely upon such independent investigations of the condition of Grantor's Property as Grantee has deemed necessary or appropriate in its discretion, and Grantee has not relied upon any statements, representations or agreements of Grantor regarding the conditions of Grantor's Property. This Easement is granted over the Easement Premises in its AS-IS, WHERE-IS CONDITION, WITH ALL FAULTS, and Grantor has not agreed to undertake any improvements or other work to make Grantor's Property or the Easement Premises suitable for Grantee's intended use, except as may be otherwise expressly provided herein. T. Conditions Governing Construction, Repair, Maintenance and Other Work. a. All work performed by Grantee pursuant to this Agreement, including without limitation all work related to the installation, alteration, maintenance(excluding only routine maintenance), repair,relocation, replacement or removal of Roadway, shall be performed in accordance with plans and specifications approved in writing by Grantor prior to the commencement of such work. Grantor shall review and approve any amendments, additions or other changes to such approved plans and specifications,prior to the performance of any work identified therein. b. Prior to the performance of any work, Grantee shall(i) obtain all applicable permits,approvals and authorizations required from any federal, state or local governmental authority and furnish Grantor with satisfactory evidence that all such approvals have been 4 obtained and(ii)furnish Grantor with certificates of insurance for each contractor and subcontractor evidencing such contractor's or subcontractor's compliance with the requirements of Section 10 hereof. 4.1) c. Except for emergency repairs affecting the health and safety of the public, Grantee shall provide Grantor with not less than thirty(30)days' advance notice of any work (including routine maintenance) so that Grantor may take such protective actions as Grantor deems necessary to ensure the safety and reliability of Grantor's facilities in the area of , Grantee's proposed work. Grantee shall postpone the commencement of its work until such time as Grantor has completed any and all such protective work. Any cost and expense of such protective work shall be borne by Grantee and paid by Grantee within thirty(30) days after receipt of a bill therefor. Grantor may elect,on a case-by-case basis,to have all of Grantee's work performed in the presence of a representative of Grantor and in a manner satisfactory to such representative. d. If Grantee performs any grading, leveling, digging or excavation work on Grantor's Property, Grantee will notify JULIE at telephone number(800) 892-0123 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 Grantor's Property. If Grantee damages any such underground facilities in the course of its work,Grantee will promptly reimburse Grantor or the owner of such equipment or facilities for any and all expense incurred in repairing or replacing such damage. e. Except for emergency repairs that are affecting the health and safety of the public, which emergency repairs should be called in within the first 8-hours of entering Grantor's Property and confirmed by Grantor, Grantee shall notify Grantor's Regional Right of Way Agent in Rockford, Illinois,telephone number(815)229-2795, at least forty-eight(48)hours in advance of entering Grantor's Property for the performance of any work(including routine maintenance). The timing and scheduling of such work shall be subject to Grantor's prior approval. In the event Grantee is required to perform any emergency repair work affecting the health and safety of the public, Grantee shall notify Grantor in writing of such repair work within forty-eight(48)hours after the performance of such repairs. f. Grantor may withhold its approval to the performance of any work hereunder whenever any of the following conditions exist: (i)Grantee is in default under this Agreement, (ii)the performance of such work and the use and occupancy of Grantor's Property contemplated by such work in Grantor's judgment will interfere with Grantor's Operations or any other then existing uses of Grantor's Property,or(iii)Grantor and Grantee have failed to enter into such supplemental agreements as Grantor deems necessary or advisable regarding the performance of such work. Grantor retains the right to suspend or stop all such work if in Grantor's sole judgment the ongoing performance of such work endangers Grantor's facilities or threatens to interfere with Grantor's Operations, and Grantor shall incur no liability for anv additional cost or expense incurred by Grantee or any third parties in connection with such work stoppage. g. All work shall be performed in a good and workmanlike manner and in accordance with all applicable laws, statutes,building codes and regulations of applicable governmental authorities. Without limiting the generality of the foregoing,Grantee shall cause all work and the placement of Roadway and Facility to meet the applicable requirements of 83 411) Ill.Admin. Code Part 305, as amended from time to time, and shall cause all workers performing 5 any work on behalf of Grantee, its contractors and subcontractors, to be equipped for and conform to OSHA safety regulations. Upon completion of the work, Grantee shall(i)provide • waivers of lien from each contractor and such other evidence of lien-free completion of the work as Landlord may require and(ii)restore all adjacent and other affected areas of Grantor's Property to their original condition preceding the commencement of such work. h. Grantee shall promptly notify Grantor of any damage caused to Grantor's facilities arising out of or related to the performance of such work, including without limitation damage to crops,fences,pasture land or livestock,and Grantee will reimburse Grantor on demand for the cost of any such repairs and other expenses incurred by Grantor as a result of such damage. The formula described in Section 13.b shall be used to determine the amount due Grantor as reimbursement for the cost of such repairs. Under no circumstances shall any blasting be undertaken on Grantor's Property nor shall any vehicles or equipment be brought or assembled on Grantor's Property having a height greater than fourteen(14)feet above grade. i. There shall be no impairment of any natural or installed drainage facilities ✓/ occasioned by any work related to Roadway and Grantee at its cost shall repair and replace all drainage tiles damaged or destroyed during the performance of such work. j. The following additional specific requirements shall apply to the performance of such work: (i) Grantee agrees that Roadway will be installed in strict conformity with ✓" the plans attached hereto as Exhibits "B". .16‘ t. (ii) Should any proposed changes to Roadway be required, either before or after installation, Grantee,or its successor, shall first submit such changes to Grantor, in the form of revised plans for Grantor's review and approval. (iii) Grantee shall install suitable markers acceptable to Grantor at all points where Roadway enter or leave Grantor's Property, at all road or street crossings, at all rail crossings and at all locations where Roadway change direction in Grantor's Property. (iv) Where Roadway crosses over Grantor's fiber optic cable(TBON), Grantor may require that split plastic duct shall be installed and • secured around Grantor's underground fiber optic cables in order to protect the fiber optic cable from any damage during any backfilling operation. (v) Grantee agrees, upon completion of the installation of Roadway, Grantee will replace all backfilling material in a neat, clean and workmanlike V manner,with the topsoil on the surface of Grantor's Property,together with the removal of all excess soils, including any rocks, debris or unsuitable fill from Grantor's Property that has been displaced by the placement of Roadway. At Grantor's sole election, Grantor may permit Grantee to evenly spread any portion of the remaining topsoil over Roadway alignment in Grantor's Property so long as the change in grade in Grantor's Property does not result in a grade change of greater than 6- 6 • . V inches from the pre-existing grade of Grantor's Property prior to the installation of Roadway. (vi) Grantee agrees that all of Grantor's Property as affected by the construction of Roadway shall be leveled,dressed and the area re-seeded using grass over and along Grantee's entire construction project site, except for those areas that are either tenant occupied for agricultural purposes and/or those areas that involve in wetland construction, where governmental wetland restoration requirements shall take precedence. Grantee shall manage the re-seeding process until a firm grass growth has been established on Grantor's Property. Grantee agrees to leave Grantor's Property in a neat, clean and orderly condition and to the satisfaction of Grantor; including, but not limited to,the re-seeding of Grantor's Property as required. 8. Covenants of Grantee. Grantee hereby covenants and agrees as follows: a. Grantee shall obtain and maintain all rights, licenses, consents and approvals required from any governmental authorities or third parties with respect to the installation, use or operation of Roadway on Grantor's Property and, at Grantor's request,Grantee shall provide Grantor with evidence thereof. Grantee shall cause Roadway to be maintained at all times in good repair and in accordance with all requirements of applicable law, and Grantee shall not permit any nuisances or other unsafe or hazardous conditions to exist in,on or under Grantor's Property in connection with Roadway or Grantee's use or occupancy of Grantor's Property. In4111) the event Grantee fails to fully and faithfully perform all such repair and maintenance obligations, Grantor shall have right(but not the obligation) after thirty(30)days' written notice to Grantee, to cause such repairs and maintenance to be performed and charge the cost thereof to Grantor. In the event Grantor elects to perform such repair and maintenance,the amount due Grantor from Grantee as reimbursement shall be determined using the formula described in Section 13.b hereof. b. Grantee shall install Roadway and use and occupy the Easement Premises in a manner that avoids any interference with Grantor's Operations. Within ten (10)days after Grantor's demand therefor, Grantee shall reimburse Grantor for all costs incurred by Grantor as a result of injury or damage to persons,property or business, including without limitation the cost of repairing any damage to Grantor's equipment or facilities or costs arising from electrical outages, caused by the use and occupancy of the Easement Premises by Grantee, its representatives, employees, agents, contractors, subcontractors and invitees. c. Grantee will not cause or permit any mechanic's lien or claim for lien to be asserted against the Easement Premises or any other real estate owned by Grantor or any improvements thereon,which lien or claim for lien arises out of any contract or agreement for work to be performed by or on behalf of Grantee in connection with this Easement or any of the rights granted to Grantee hereunder. In the event any such lien or claim for lien is filed, Grantee will promptly pay the same. Grantee hereby indemnifies and agrees to defend and hold harmless Grantor from and against any and all liens or claims for lien arising out of or in any way connected with Grantee's use and occupancy of the Easement Premises. 7 • ! • • d. Grantee shall pay to Grantor, within thirty(30)days after Grantor's demand therefor, any and all real property taxes and assessments levied against Grantor's Property during the term hereof that are attributable to Roadway or Grantee's use and occupancy of the Easement Premises. Grantee shall be responsible for the cost of any and all corrective actions required to address any impairment of surface water drainage conditions affecting Grantor's Property or adjacent properties as a result of Grantee's use and occupancy of the Easement Premises. e. Grantee shall notify Grantor in writing within thirty(30)days after the date Grantee ceases to use Roadway and shall provide Grantor with a properly executed release of l\ this Easement. This Easement shall terminate without the necessity of any notice to Grantee in the event of non-use by Grantee. 9. Hold Harmless. a. Grantee agrees to indemnify, defend and hold harmless Unicom Corporation, an Illinois corporation(Grantor's parent corporation), Grantor, and their respective employees, officers, directors, agents, subsidiaries, affiliates, legal representatives, successors and assigns, from and against any and all claims,actions,proceedings,judgments, damages(including consequential 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 Grantee's use and occupancy of the Easement Premises or any portion of Grantor's Property, or any work performed hereunder by Grantee, its employees, agents, contractors or subcontractors, or anyone claiming by through or under 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 Grantor, 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 Agreement. b. To the maximum extent permitted by applicable law, Grantee hereby waives any and all claims against Unicom Corporation, an Illinois corporation(Grantor's parent corporation), Grantor, and their respective employees,officers, directors, agents, subsidiaries, affiliates, successors and assigns(collectively,the"Grantor Group"),which Grantee or any person or entity claiming by,through or under Grantee may now or at any time in the future have for injury or damage to persons,property or business sustained in or about the Easement Premises or any other portion of Grantor's Property, including without limitation claims arising from any conditions existing on Grantor's Property or any acts or omissions of any of the Grantor Group. Grantor shall not be liable to Grantee for any injury, loss or damage to persons, property or business sustained by Grantee, its representatives, employees, agents, contractors or invitees in connection with this Easement or the rights granted to Grantee hereunder, unless such loss or damage results from Grantor's gross negligence or willful misconduct. In no event shall Grantor be liable for any such injury, loss or damage resulting from any acts or omissions of any third party occupants of the Easement Premises or any other portion of Grantor's Property or the public. 10. Insurance. 8 a. Grantee shall cause each contractor and subcontractor performing any work on \ j behalf of Grantee pursuant to this Agreement to purchase and maintain(or Grantee at its own cost shall purchase and maintain on behalf of each such contractor or subcontractor), prior to commencing any work on Grantor's Property,the following insurance coverages: (i) Workers' Compensation Insurance Policy: Coverage A- providing payment promptly when due of all compensation and other benefits required of the insured by the workers'compensation law; Coverage B -Employers'Liability: providing payment on behalf of the insured with limits not less than $1,000,000 each accident/occurrence for all sums which the insured shall become legally obligated to pay as dar-':.ges 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$5,000,000 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 Grantor. Commonwealth Edison Company, as Grantor, shall be added as Additional Insured under endorsement GL 2010 or CG 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, 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; and (iii) Automobile Liability in the amount of not less than $2,000.000 per occurrence combined single limit covering all owned, leased, rented and non-owned vehicles. There shall be furnished to Grantor, prior to commencing the work of installing,repairing, replacing or removing Roadway, a certified copy of each policy of insurance or a Certificate of Insurance evidencing the coverages specified in subsections(i), (ii)and(iii) of this Section. / Insurance coverage as required herein in subsections(i)(ii),and(iii) shall be kept in force until all work has been completed. Declarations in each of said policies shall identify the work as being done by and for others on property owned by Grantor and there shall be no exclusions in any of said policies not approved by Grantor. Grantor hereby reserves the right to amend,correct and change, from time to time,the limits, coverage and form of policy as may be required from Grantee's contractor or contractors before entering Grantor's Property to perform any work thereon. b. All insurance policies required by this Section 10 shall be issued by good and reputable companies having a Best's Rating of A/XII or better and shall provide thirty(30) days 9 — ¶ • prior written notice of any substantial change in the coverage,cancellation or non-renewal. Any policies of insurance maintained by Grantee, its contractors or subcontractors, shall be primary without right of contribution or offset from any policy of insurance or program of self-insurance maintained by Grantor. Grantee agrees and shall require each of its contractors and subcontractors to agree that they shall each arrange for the issuers of all policies of insurance required hereunder to waive their rights of subrogation against Grantor, its directors, officers, employees and agents. Grantee shall furnish Grantor with certificates of insurance evidencing Grantee's compliance with the requirements of this Section 10. 11. Environmental Protection. a. Grantee shall conduct its operations on Grantor's Property, cause all work performed by or on behalf of Grantee hereunder to be performed, and otherwise use and occupy the Easement Premises in strict compliance with all applicable Environmental Laws. Grantee shall not cause or permit any underground storage tanks to exist or any Hazardous Materials to be introduced or handled on Grantor's Property as a result of or in connection with Grantor's use and occupancy of the Easement Premises. Grantee shall defend, indemnify and hold harmless Unicom Corporation, an Illinois corporation(Grantor's parent corporation), Grantor, and their respective employees,officers, directors, agents, subsidiaries, affiliates, legal representatives, successors and assigns, from and against from and against any claims, actions, proceedings, judgments, damages (including consequential damages), liens, fines,costs, liabilities, injuries, losses, costs and expenses, including but not limited to attorneys' and consultants' fees and costs, whether asserted under Environmental Laws or at common law, arising out of or related to (i) any breach by Grantee of the environmental covenants set forth above or(ii)any violation of any Environmental Laws or the presence,release or threatened release of any Hazardous Materials at,on or beneath Grantor's Property as a result of or in connection with any act or omission of Grantee, its agents, employees, contractors, or any entity in privity with or providing a benefit to Grantee. As used in this section, the term"Environmental Laws" shall mean all federal, state and local statutes, regulations or ordinances relating to the protection of health, safety or the environment including, without limitation,the Clean Air Act,the Water Pollution Control Act, the Resource Conservation and Recovery Act,the Comprehensive Environmental Response, Compensation and Liability Act,the Toxic Substances Control Act, all statutes, rules and regulations applicable to wetlands of any federal,state,county or local regulatory agency,and all similar state and local laws now or hereinafter enacted or amended. "Hazardous Materials" shall — mean any waste,pollutant,toxic substance or hazardous substance, contaminant or material regulated by any Environmental Law including,without limitation, petroleum or petroleum- based substances or wastes, asbestos and polychlorinated biphenyls. The foregoing covenants and indemnification obligations shall survive any termination of this Grant of Easement. b. Without limiting the generality of the foregoing,prior to commencing any work on Grantor's Property, Grantee at is sole cost shall(i)secure and provide Grantor with copes of any wetland permits required from any federal state or local regulatory agencies and(ii) if applicable, identify the erosion control methods or any other method provided by the Federal Clean Water Act to prevent construction material or debris from filling any wetland area. If any construction material or debris should fill any wetland areas, Grantee at its sole cost shall cause the same to be removed and the area restored to its original condition to the extent required by applicable law or reasonably required by Grantor. Grantee at its sole cost shall monitor, maintain, and restore any wetland areas affected by its use and occupancy on Grantor's Property 10 - ♦, ,� .. • for the time specified in any and all permits, licenses or other approvals obtained by Grantee hereunder. c. If, during the term of this Agreement, Grantee becomes aware of any violation of Environmental Laws or of the presence of any Hazardous Materials or threatened presence of Hazardous Materials in, on, over or under the soil, groundwater or other areas of Grantor's Property resulting from or connected with Grantee's use and occupancy of Grantor's Property, Grantee shall promptly notify Grantor in writing of such conditions and shall immediately secure the affected area in a manner required to protect public health and safety. d. Grantee shall manage any excavated soils in which Hazardous Materials are encountered in accordance with all applicable Environmental Laws,and, if permitted by such laws, shall restore the excavated work area to the condition existing before such Hazardous Materials were encountered. If,under applicable Environmental Laws,the excavated soils cannot be returned to the excavated work area, Grantee shall remove and dispose of the excavated contaminated soil at no cost to Grantor in the manner required by applicable Environmental Law,but in no event shall such contaminated soil be redeposited on Grantor's Property. 12. Defaults. The occurrence of any of the following shall constitute an event of default ("Event of Default")under this Agreement: a. Grantee's failure to pay when due any amount payable by Grantee hereunder and the continuation of such default for a period of ten(10) days after notice thereof from Grantor; or .4I1) b. Grantee's failure to perform or observe any other covenant, term or condition to be performed or observed by Grantee hereunder, and the continuation of such default for a period of thirty(30)days after notice thereof from Grantor; provided,however, that if such default cannot be cured within thirty(30)days and Grantee has undertaken diligent efforts within such thirty (30)day period to effect a cure, then the cure period shall be extended for such additional time, not to exceed an additional sixty(60)days, as may be required by Grantee through the exercise of continuous, diligent efforts to complete all required corrective action; or c. Any representation or warranty of Grantee hereunder proves to be false or --- misleading in any material respect when made; or d. Grantee's failure to maintain or cause its contractors or subcontractors to maintain the insurance coverages required under Section 10 hereof or Grantee's failure to furnish Grantor with evidence of such insurance as required by said Section; or e. Grantee's failure to operate or maintain Roadway for a period of twelve(12) consecutive months. 13. Remedies. Upon the occurrence of an Event of Default, Grantor may exercise any one or more of the following remedies: a. terminate this Easement and all rights and privileges of Grantee under this Agreement by written notice to Grantee; or 11 c • b. take any and all corrective actions Grantor deems necessary or appropriate to cure such default and charge the cost thereof to Grantee, together with(i) interest thereon at the Corporate Base Rate then published by The First National Bank of Chicago(or at the prime rate then published by any other money center bank located in Chicago)and(ii)an administrative charge in an amount equal to twenty percent(20%)of the cost of the corrective action to defray part of the administrative expense incurred by Grantor in administering such cure, such payment to be made by Grantee upon Grantor's presentment of demand therefor; or c. any other remedy available at law or in equity to Grantor, including without limitation specific performance of Grantee's obligations hereunder. Grantee shall be liable for and shall reimburse Grantor upon demand for all reasonable attorney's fees and costs incurred by Grantor in enforcing Grantee's obligations under this Agreement,whether or not Grantor files legal proceedings in connection therewith. No delay or omission of Grantor 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 of any breach of any of the covenants of this Agreement shall be construed,taken or held to be a waiver of any other breach, or as a waiver, acquiescence in or consent to any further or succeeding breach of the same covenant. The acceptance of payment by Grantor of any of the fees or charges set forth in this Agreement shall not constitute a waiver of any breach or violation of the terms or conditions of this Agreement. 14. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if delivered in person or by messenger or sent by U.S. certified mail, rreturn receipt requested, or by a nationally-recognized overnight courier to the parties at the following addresses (or such substitute addresses as may be provided by either party in the manner described herein): If to Grantor: Land Management Administrator Real Estate Services Commonwealth Edison Company P. O.Box 767 _ Chicago,Illinois, 60690 If to Grantee: City of Elgin Engineering Department 150 Dexter Court Elgin, Illinois 60120 Facsimile No. (847)931-5965 Phone No. (847)931-5955 Such notices shall be deemed effective when personally delivered, if delivered in person or by messenger,three(3) days following deposit in U.S. mail, if delivered by certified mail, or one day following deposit with a nationally-recognized overnight courier. 12 .• 15. Miscellaneous. 411) a. Grantee's obligations under Sections 8, 9, 11 and 13 hereof shall survive the expiration or termination of this Easement and Grantee's rights and privileges under this Agreement. b. This Agreement and the rights and obligations of the parties hereto shall be binding upon and inure to the benefit of the parties and their respective successors,personal representatives and assigns; provided,however,that Grantee shall have no right to assign all or any portion of its right,title, interest or obligation in this Easement or under this Agreement without the prior written consent of Grantor,which consent may be granted or withheld by Grantor in its sole and exclusive discretion. Any attempt by Grantee to assign all or any portion of its interest hereunder without Grantor's prior written approval shall be void and of no force and effect. The terms"Grantor"and"Grantee"as used herein are intended to include the parties and their respective legal representatives, successors and assigns(as to Grantee such assigns being limited to its permitted assigns). c. Upon any transfer or conveyance of the Easement Premises by Grantor,the transferor shall be released from any liability under this Agreement, and the transferee shall be bound by and deemed to have assumed the obligations of Grantor arising after the date of such transfer or conveyance. d. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements related thereto. There are '41111) no representations or understandings of any kind related to the subject matter hereof that are not fully set forth herein. Any amendments to this Agreement must be in writing and executed by Grantor and Grantee. Grantee agrees to cooperate with Grantor in executing any additional documents reasonably necessary to protect Grantor's rights under this Agreement. e. This Agreement shall be construed in accordance with the laws of the State of Illinois. Time is of the essence of this Agreement. f. In the event that any governmental or regulatory body or any court of competent jurisdiction determines that any covenant, term or condition of this Agreement as applied to any particular facts or circumstances is wholly or partially invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect such covenant,term or condition as applied to other facts or circumstances(unless the effect of such determination precludes the application of such covenant,term or condition to other facts or circumstances) or the validity, legality or enforceability of the other covenants,terms and conditions of this Agreement. In the event any provision of this Agreement is held to be invalid, illegal or unenforceable,the parties shall promptly and in good faith negotiate new provisions in substitution therefor to restore this Agreement to its original intent and effect. g. No receipt of money by Grantor from Grantee, after the expiration or termination of this Agreement shall renew, reinstate, continue or extend the term of this Agreement. 111 13 • • h. By signing this Agreement, Grantee affirms and states that it does not have any affiliated interest in Commonwealth Edison Company. Nothing in this Agreement shall be construed as making the parties hereto partners, agents,joint ventures,members of a joint enterprise. i. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which,taken together, shall constitute one and the same Agreement. j. This Agreement shall be executed for and on behalf of Grantee pursuant to a resolution or ordinance adopted by its President and Board of Trustees. Concurrently with its execution and delivery of this Agreement, Grantee shall furnish Grantor with a certified copy of such resolution or ordinance as evidence of the authority herein exercised by Grantee's officers executing this Agreement. k. By signing this Agreement Grantee agrees that Grantor or its public utility successor shall not be assessed for any improvements to be constructed pursuant hereto as a local improvement project or otherwise charged for the cost of such improvements. 16. Regulatory Approval. This Agreement may be subject to the approval of one or more regulatory agencies. If this Agreement is subject to such approval,the parties hereto agree to jointly seek such approval. If such approval is not granted by any agency,this Agreement shall be void. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in triplicate by their proper officers thereunto duly authorized as of the day and year first hereinabove written. COMMONWEALTH EDISON COMPANY By: Land Management Administrator CITY OF ELGIN By: President ATTEST: Village Clerk This instrument is prepared by J.L.Flanagan on behalf of Commonwealth Edison Company,P.0.Box 767, Chicago,Illinois 60690. k:/Ldmg\Flanagan\Easement\Village of Machesney Pk.doc 14 �• 'r • • STATE OF ILLINOIS COUNTY OF COOK ss. I, the undersigned, a Notary public, in and for the County and State aforesaid, DO HEREBY CERTIFY, that M. R. Norris, personally known to me to be the Land Management Administrator of COMMONWEALTH EDISON COMPANY, is the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument,on behalf of said corporation, as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and official seal,this day of , 19 Notary Public Commission expires: STATE OF ILLINOIS COUNTY OF ss. 41111) 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 President of the City of Elgin, and , personally known to me to be the Village Clerk of said Village, 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 severally acknowledged that as such President and Village Clerk, they signed and delivered the said instrument, pursuant to authority given by the Village Council of said Village, pursuant to a resolution or ordinance adopted by said Village, for the uses and purposes therein set forth. Given under my hand and official seal,this day of , 19 • Notary Public Commission Expires: ' . . . . . 15 .� •* ♦ EXHIBIT A GRANTOR'S PROPERTY Parcel 36 of Grantor's Joliet-Crystal Lake Right of Way, as situated in the Northwest Quarter of Section 17,Township 41 North, Range 9, East of the Third Principal Meridian, Cook County,Illinois, as acquired under Warranty Deed dated May 11, 1928, and recorded on May 14, 1928 as Document No. 10021928. Tax Parcel No. 461 Pin No. 6-17-100-003 r Parcel 37 of Grantor's Joliet-Crystal Lake Right of Way, as situated in the Southwest Quarter of Section 17,Township 41 North, Range 9, East of the Third Principal Meridian, Cook County, Illinois, as acquired under Warranty Deed dated May 8, 1928, and recorded on May 11, 1928 as Document No. 10020321. Tax Parcel No. 454 Pin No. 6-17-300-006 r 16 .�S'YiAM+� \ 77•E'3'. 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