98-242 JULY, 2007
IN REVIEWING THIS FILE, IT WAS DETERMINED HAT AN EXECUTED COPY
OF THE AGREEMENT LISTED BELOW WAS NEVE ' RETURNED TO THE
CLERK'S OFFICE.
ALL THAT IS AVAILABLE IS THE ATTACHED DRA COPY OF THE
AGREEMENT AND ITS SUPPORTING PAPERWORK
REFERENCE: RESOLUTION NO. 98-242
PASSED: SEPTEMBER 23, 1998
SUBJECT: AGREEMENT WITH THE COMMU ER RAIL DIVISION OF THE
REGIONAL TRANSPORTATION A THORITY FOR A WIRELINE
EASEMENT FOR THE HIGHLAND AVENUE CBD LIGHTING
PROJECT
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emk Resolution No. 98-242
RESOLUTION
AUTHORIZING EXECUTION AND ACCEPTANCE IAF A WIRELINE EASEMENT
FOR THE HIGHLAND AVENUE CBD LI'HTING PROJECT
(Commuter Rail Division of the
Regional Transportation A thority)
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Kevin Kelly, Mayor, an• Dolonna Mecum, City
Clerk, be and are hereby authorized and directed to execute and
accept a Wireline Easement for she construction and
installation of conduit and electrical wire for the Highland
Avenue CBD lighting project from the Co uter Rail Division of
the Regional Transportation Authority ov-r the property legally
described on the Wireline Easement Agr-ement attached hereto
and made a part hereof.
BE IT FURTHER RESOLVED that the City Clerk is hereby
authorized and directed to cause the E.sement Agreement to be
recorded in the office of the Recorder of Deeds of Kane County,
Illinois .
Kevin K-lly, Mayor
Presented: September 23, 1998
Adopted:
Vote: Yeas Nays
Recorded:
Attest:
Dolonna Mecum, City Clerk
WIRELINE 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 City
of Elgin a corporation of Illinois with offices located at 150 Dexter Court, Elgin, Illinois 60119
("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 payments to be made to Metra by Grantee,
as hereinafter set forth, and also of the covenants and agreements hereinafter stated, Metra hereby
grants to Grantee an easement("Easement")to construct and install across, underneath or along that
portion of Metra's right of way and tracks (or track, as the case may be) delineated on the plat
attached to and made a part of this Agreement as Exhibit "A" ("Premises"), a 3" steel conduit
consisting of wires strung separately or contained in a cable or conduit, which shall carry electric
current no greater than 120 volts, together with the necessary poles, crossarms, guy wires, braces,
conduits or other fixtures appurtenant thereto(collectively the"Wireline"), and thereafter to maintain,
repair, operate and renew the same during the continuance of this Easement.
This Easement is granted upon the following express conditions, terms and covenants to be
observed, kept and performed by Grantee:
1. (a) As one of the considerations for this Easement, Grantee agrees to pay to Metra
the sum of$600.00 for the cost of preparing this Easement, payable in advance.
4.11)
Wvdine.Emt:August 12,1998 1
2. Said Wireline shall be constructed in accordance with the specifications and notes set
forth on Exhibit "A". The installation of said Wireline, includi g but not limited to the digging and
filling of any trench and the time and manner of doing all of the ork or of any maintenance, repairs,
replacements or renewals upon the Premises, shall be as direct-d by Metra's authorized representa-
tives. Grantee agrees to construct and at all times maintain the ireline so as to protect all electrical
features(whether or not connected with communication or si: al facilities) on the Premises, or any
other Metra property, or any electrical facilities which Metra m.y hereafter construct or permit to be
constructed thereon, from any induced, foreign or return vo ages and currents and Grantee shall
make such changes in the construction of its own electrical features as are necessitated by such
foreign or return currents as is from time to time required by etra. All of said work shall be done
at Grantee's sole cost and expense, in a good and workmanlik- manner, and in accordance with the
requirements of the National Electrical Safety Code and the p ans, specifications, and profiles to be
prepared by Grantee and submitted for approval to Metra's . thorized representative(s), and until
such approval is given, said work shall not be commenced by Grantee.
3. Upon completion of the initial construction of he Wireline, and upon completion of
any subsequent reconstruction, replacement, repair or mainten: ce of the Wireline subsequent to its
construction, Grantee, at its own cost and expense, shall remo e any debris and restore, or cause to
be restored to the reasonable satisfaction of Metra, the Pre ses and any other affected portion of
Metra's property ("Property") as nearly as may be, to the sa e or better condition than that which
existed immediately prior to commencement of such activities u y Grantee. In the event Grantee fails
to cause the Premises and the Property to be restored to t e reasonable satisfaction of Metra as
provided for herein,Metra shall have the right to restore the Pr:mises and Property and Grantee shall
reimburse Metra for all costs and expenses incurred by Metr: in its performance of the obligations
imposed upon Grantee hereunder.
4. Metra shall permit Grantee reasonable right of.ccess to the Premises for the purpose
of constructing, replacing, repairing, maintaining and operat. g said Wireline.
5. Any rights to the Premises not specifically gr. ted to Grantee herein are reserved to
Metra and its successors and/or assigns. The Wireline shall be constructed, repaired, maintained 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' tenants or permittees on the Premises
and so as not to prevent or unreasonably interfere with use an. enjoyment of the Premises by Metra,
its employees,agents or permittees for the purpose(s)to whic the Premises is now, or may hereafter
be, committed by Metra. Metra shall have the right t• retain the existing tracks and other
improvements at the location of this Wireline on or adjacent o the Premises and also shall have the
right at any and all times in the future to construct, maint.in and operate over, under, across or
parallel to said Wireline such additional track or tracks as it may from time to time elect. 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 trabk or tracks and other improvements as
Metra may in the future construct or cause to be constructel over, under, across, or parallel to said
Wireline. This Easement is expressly subject to the rights oft ird parties to maintain utility and other
Wirehne.Emt:August 12,1998 2
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 Wireline.
6. Grantee agrees that it will bear and pay the entire cost of constructing, maintaining,
repairing, replacing and operating said Wireline.
7. Grantee shall not place, keep, store or otherwise permit to be placed, kept or stored
on 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 vehicle
of any kind on the Premises, on any track or on 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 public crossing of Metra's tracks and rights of way. If
deemed necessary by Metra, a flagman will be provided by Metra, the cost of such services to be paid
by Grantee.
8. Grantee agrees that it will, immediately upon receipt of a statement showing the
amount thereof, 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 Wireline.
9. Grantee shall give to Metra reasonable advance written notice of the time when
Grantee will commence any construction, replacement,repair or maintenance of said Wireline 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.
10. Grantee agrees that before and during the construction, replacement, repair,
maintenance or operation of said Wireline, 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.
11. Grantee agrees that should the construction, maintenance, operation, repair or
presence of the Wireline necessitate any change or alteration in the location or arrangement of any
other wires, appurtenances or other 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 said point of crossing or at any point along a parallel course with the Wireline for any purpose
whatsoever, including but not limited to track installations by Metra or third parties, Grantee, at its
own cost and expense, shall alter, relocate or make all changes to the Wireline required by Metra.
If Grantee shall fail, neglect or refuse to relocate or make such change(s) to the Wireline for a period
of ninety(90)days after the receipt of written notice from Metra, then Metra may make or cause to 4111)
Wueline.Emt:August 12,1998 3
be made such relocation or change(s) at the expense of Granter.
12. Grantee shall at all times construct,replace,repair maintain and operate said Wireline
in a secure, safe and sanitary condition and in accordance with . 1 applicable laws, ordinances, rules
and regulations. Grantee shall take all reasonable safety pr-cautions to adequately secure the
Premises, warn of risks and ensure the safety of the pub c during periods of construction,
reconstruction, replacement, repair, maintenance and operati.n of the Wireline. If the manner of
constructing, repairing, maintaining, replacing or operating :'d Wireline shall at any time be in
violation of any applicable law, rule, regulation or ordinance, th-n Grantee, at no cost or expense to
Metra and upon receipt of appropriate notice from a gove ental agency having enforcement
jurisdiction over the Premises, shall make such changes or rep:'rs as shall be necessary. Failure or
refusal of Grantee to make the required changes or repairs wit the time prescribed by said agency
shall terminate this Easement, provided that it shall not termi ate as long as Grantee, in good faith
and by pursuit of appropriate legal or equitable remedies, enjo ns, defends against, appeals from or
pursues other lawful measures to avoid the enforcement of said .ws, ordinances, rules or regulations.
13. To the fullest extent permitted by law, Grantee -reby assumes and agrees to release,
acquit and waive any rights against and forever discharge etra, the Regional Transportation
Authority ("RTA") and the Northeast Illinois Regional Commuter Railroad Corporation
("NIRCRC"), their respective directors, administrators, offi ers, employees, agents, successors,
assigns and all other persons, firms and corporations acting 'th or upon their authority from and
r"'' against any and all claims, demands or liabilities imposed up.n them by law or otherwise of every
kind, nature and character on account of personal injuries, ncluding death at any time resulting
therefrom, and on account of damage to or destruction of •roperty arising from any accident or
incident which may occur to or be incurred by Grantee, its e .loyees, officers, agents and all other
persons acting on its behalf while on the Premises or the Pro•erty, whether or not such injuries or
damages are caused by the actions, omissions or negligence of Metra, the RTA or the NIRCRC.
Notwithstanding anything in this Easement to the contrary, the eleases and waivers contained in this
paragraph shall survive termination of this Easement.
14. To the fullest extent permitted by law, Grantee agrees to indemnify, defend and hold
harmless Metra, the RTA and the NIRCRC, their respective dire ors, 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 an' attorneys' fees) as a result of claims,
demands, actions, suits, proceedings,judgments or settlement., arising out of or in any way relating
to or occurring in connection with Grantee's use of or the co dition of the Premises whether or not
such injuries, liabilities, losses, damages, costs, payments o expenses are caused by the actions,
omissions or negligence of Metra, the RTA or the NIRCR . Metra agrees to notify Grantee in
writing within a reasonable time of any claim of which it bec.mes aware which may fall within this
indemnity provision. Grantee further agrees to defend Metra,t e RTA, the NTRCRC, their respective
directors, administrators, officers, agents and employees against any claims, suits, actions or
proceedings filed against any of them with respect to the subj-ct matter of this indemnity provision,
whether such claims, suits, actions or proceedings are ri. htfully or wrongfully made or filed;
provided, however, that Metra, the RTA and the NIRCRC, may elect to participate in the defense
Wirehne.Emt August 12,1998 4
41)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.
15. Prior to commencement of any work to be performed on or about the Premises under
the terms of this Easement, Grantee shall 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 $2,000,000 single limit, bodily injury AI
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
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
%%ra e.Emt.August 12,1998 5
rk
employees of the Grantee or contractor, as applicable. The p•licy shall contain employers liability
coverage with limits of not less than $100,000 each accident; $ 00,000 each employee disease; and
$500,000 policy limit-disease.
(d) Automobile Liability Insurance.
Grantee or contractor shall furnish evide ce that, with respect to the operations
it performs, it carries a policy issued to and covering the liab lity 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 e State of Illinois and which are not
covered under the Comprehensive General Liability Insurance. overage under this policy shall have
limits of liability of not less than $2,000,000 per occurrence, c•mbined single limit, for bodily injury
and property damage liability.
The insurance hereinabove specified shall be carried until all ork required to be performed under
the terms of this Easement is satisfactorily completed and form. ly accepted. Failure to carry or keep
such insurance in force until all work is satisfactorily compl; ed shall constitute a violation of the
Easement. Grantee or contractor shall furnish to Metra signe. copies of the policy for Comprehen-
sive General Liability and the original of the AAR-AASHTO •olicy for Railroad's Protective Public
Liability Insurance. If any work is sub-contracted, Grantee or ontractor shall furnish a signed copy
of the policy for Comprehensive General Liability Insurance.
rib.*
16. This Easement may be terminated by Metra effective immediately upon notice to
Grantee if the Premises, or any portion thereof, is needed '.r any Metra or railroad purposes as
determined by Metra in its sole discretion or Grantee ceases o operate or maintain the Wireline or
violates any of the terms,conditions or provisions set forth in I 's Easement. In case of termination,
Grantee shall remove from the Premises said Wireline and s . restore said Premises to the same or
better condition than that which existed prior to the constru ion and installation of said Wireline;
or upon failure, neglect or refusal of Grantee to do so, Met: may make or cause to be made such
removal and restoration, and the total cost hereof shall be paid •y Grantee; or, if Metra shall so elect,
it may treat the said Wireline as abandoned by Grantee and ay make such disposition thereof as it
may see fit.
17. This Easement and all of the terms, conditions, 'ghts and obligations herein contained
shall inure to and be binding upon the Parties, their res•ective legal representatives, lessees,
permittees, successors and/or assigns whether hereinabove so tated or not; but it is distinctly agreed
that Grantee shall not assign its rights under this Easement 'thout first having received the prior
written consent of Metra.
18. All payments required to be made by Grante- to Metra under the terms, conditions
or provisions of this Easement shall be made within sixty (60) days of Grantee's receipt of any
demand or invoice from Metra evidencing the amount of the ndebtedness due. Payments not made
within said sixty(60) day period shall accrue interest at a rat- of one and one half percent (1 1/2%)
Wfreline.Emt:August 12,1998 6
•
•
per month or the highest amount permitted by Illinois law, whichever is less, from the date payment
is due until paid.
19. All notices, demands and elections required or permitted to be given or made by either
Party 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, 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 Grantee shall be sent to:
City of Elgin
150 Dexter Court
Elgin, Illinois 60119
Phone:
Fax:
20. 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 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
Wueline.Emt August 12,1998 7
time for performance shall be the next business day. This Ease -nt constitutes the entire agreement
between the Parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Parties hereto have d y executed this Easement as of
this day of , 199'
ATTEST: COMM TER RAIL DIVISION OF THE
REGIO AL TRANSPORTATION
AUTH I RITY:
By:
Assistant Secretary Philip A Pagano
Executi e Director
ATTEST: CITY IF ELGIN
By: By:
Its: Its:
c:/I&e-ewllelgin.emUdlf
wireVume.Emt:August 12,1998 8
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f ,> S k City of Elgin Agenda Item No. 1
°4'+rrnc ''
September 3, 1998
TO: Mayor and Members of the City Co ncil
FROM: Joyce A. Parker, City Manager
SUBJECT: Wireline Easement Agreement wit METRA Associated
with the Highland Avenue CBD Li•hting Project
PURPOSE
The purpose of this memorandum is to provide the Mayor and
members of the City Council with info mation to consider
executing a Wireline Easement Agreement with METRA for the
purpose of installing a 3-inch conduit and electrical wire
within their right-of-way.
BACKGROUND
(lek. The City Council, at its April 8, 1998 eeting, awarded the
contract to Utility Dynamics Corp. for the Highland Avenue CBD
Lighting Project. The project includes the installation of
ornamental lighting and removal and replacement of deteriorat-
ed sidewalks . The project is currently under construction,
with an anticipated completion by earl October. A project
location map is attached as Exhibit A.
In order to energize the new lights installed west of METRA' s
railroad tracks on Highland Avenue, a 3-inch conduit and
electrical wire needs to be placed unde their tracks . METRA
has agreed to allow this installation a d has forwarded the
agreement for our execution. A similar a'reement was approved
with METRA by the City Council in 1996 f.r a conduit crossing
on Chicago Street. A copy of the Wireli e Easement Agreement
is attached as Exhibit B.
COMMUNITY GROUPS/INTERESTED PERSONS CONT• CTED
None .
, )-ppINANCIAL IMPACT
The cost of the Wireline Easement agree ent is $600 . 00 . This
L.7
expenditure will be funded fro account number
376-1000-795 . 93-80, project number 33400 .
;41/ LEGAL IMPACT
None .
C
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L
Highland Avenue CBD Lighting Project
September 4, 1998
Page 2
ALTERNATIVES
None .
RECOMMENDATION
It is recommended that the City Council approve the Wireline
Crossing Easement with METRA and authoriz= the City Manager to
execute the agreement at a total cost of 600 . 00 .
- - •ectiully submi d,
62 , tairst-----/
Joie e A ' Parker
City Manager
SP/do
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