HomeMy WebLinkAboutRESOLUTION - 25-98 - 6/23/1998 - GRANT FOR PRIVATE ROADWAYRESOLUTION NO. 25-98
A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE
CLERK TO EXECUTE A GRANT FOR PRIVATE ROADWAY BETWEEN
COMMONWEALTH EDISON COMPANY AND THE VILLAGE OF ELK GROVE
VILLAGE (FIRE STATION NO, 8. OAKTON STREET PROJECT)
NOW, THEREFORE, BE IT RESOLVED by the President and Board of
Trustees of the Village of Elk Grove Village, Counties of Cook and
DuPage, State of Illinois as follows:
Section 1: That the Village President be and is hereby
authorized to sign the attached documents marked:
GRANT FOR PRIVATE ROADWAY
a copy of which is attached hereto and made a part hereof as if fully
set forth and the Village Clerk is authorized to attest said
documents upon the signature of the Village President.
Section 2: That this Resolution shall be in full force and
effect from and after its passage and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 23rd day of June , 1998.
APPROVED this 23rd day of
Craig B. Johnson
Village President
ATTEST:
Patricia S. Smith
Village Clerk
reso602i.doc
1998.
FOR RECORDER'S PURPOSES
GRANT FOR PRIVATE ROADWAY
THIS Grant for Public Roadway is made, entered and granted on this 23rd day of
June , 1998, by and between COMMONWEALTH EDISON COMPANY, an
Illinois corporation ("Grantor"), and Elk Grove Village, an Illinois municipal corporation ("Grantee").
WHEREAS, Grantor is the owner of a parcel of land in the Village of Elk Grove, County of
Cook and State of Illinois, commonly known as Parcel No. 73 of Grantor's Lombard -Des Plaines 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 Grantors Property (collectively, "Grantor's Operations").
WHEREAS Grantee at this time wishes to install a private roadway with temporary construction
parking area 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, a perpetual easement for the right and privilege to use the property as shown and
located on Blank, Wesselink, Cook & Associates, Inc. plan and profile sheets Cithrough C6 and C7, last
revised April 13, 1998 and March 26, 1998 respectively for the Village of Elk Grove's Fire Station No. 8
Oakton Street project in Elk Grove Village, Illinois, marked Exhibits `B" & "C" respectively, attached
hereto and made a part hereof.
Construction and maintenance of a 24 -foot wide private roadway with 60 -foot temporary
construction area across Grantor's property and shown in substantial conformity with the
engineering plan and profile sheets Cithrough C6, last revised April 13, 1998, prepared
by Blank, Wesselink, Cook & Associates, Inc., Consulting Engineers, for The Village of
Elk Grove, 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 private
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
C. Use of Grantor's adjoining property between the proposed roadway and Lively Blvd. for
temporary construction parking purposes only as shown in substantial conformity with
the engineering plan and profile sheet C7, last revised March 26, 1998, also prepared by
Blank, Wesselink, Cook & Associates, Inc., Consulting Engineers, for The -Village of
Elk Grove, marked Exhibit "C", (hereinafter referred to as "Temporary Construction
Parking Area") attached hereto and made a part hereof.
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
Grantor's Property hereunder, all licenses, consents, permits, authorizations and other approvals
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.
b. In the event any aspect of Grantee's construction, placement, maintenance,
repair, use or operation of Roadway and temporary construction parking area 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 itraccordance
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
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, it's successors or assigns
and North Shore 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.
2. Term. The term of this Easement shall be in perpetuity, pursuant to the terms,
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 Ten ($10.00) Dollars as payment of
which hereby acknowledged.
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
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.
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
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.
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 Libertyville, Illinois, telephone number (847) 816-5243, 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 any 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
Ill. Admin. Code Part 305, as amended from time to time, and shall cause all workers performing
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".
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(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
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 -
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.
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 al44imes 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. In
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.
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
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,
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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.
a. Grantee shall cause each contractor and subcontractor performing any work on
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
damages 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
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
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
i1f,
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
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,
return receipt requested, or by a nationally -recognized overnight courier to the parties at the following
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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, lllinois, 60690
If to Grantee: Village of Elk Grove
Dept. of Engineering and Community Dev.
901 Wellington Avenue
Elk Grove Village, Illinois 60007-3499
Facsimile No. (847) 357-4044
Phone No. (847) 439-3900
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.
15. Miscellaneous.
a. Grantee agrees upon completion of the private roadway and use of it's
temporary construction area, and the use of Grantor's adjoining property for temporary
construction parking shall remove all gravel, debris, and seed and grade the area to the
satisfaction of Grantor's Regional Right of Way Agent or representative.
b. 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.
C. 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). —
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d. 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.
e. This Agreement constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements related thereto_. There are
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.
f. This Agreement shall be construed in accordance with the laws of the State of
Illinois. Time is of the essence of this Agreement.
g. 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.
It. 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.
i. 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.
j. 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.
k. 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.
I. 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. —
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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.
ATTEST:
Patricia S. Smith
Village Clerk
This instrument is prepared by J. L. Flanagan on behalf
of Commonwealth Edison Company, P. O. Box 767,
Chicago. Illinois 60690.
COMMONWEALTH EDISON COMPANY
Land Management Administrator
VILLAGE OF ELK GROVE
By. Craig B. Johnson
President
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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
STATE OF ILLINOIS
COUNTY OF Cook
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY
CERTIFY, that Craig B. Johnson personally known to me to be the President of the Village
of Elk Grove, and Patricia S. Smith , 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 Clerk, they signed and delivered the said instrument, pursuant to authority given by the
Board of Trustees 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 23rd day of June 19 98 .
Commission Expires: 11/07/01
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Patricia Droschak
Notary Public
EXHIBIT A
GRANTOR'S PROPERTY
Parcel 73 of Grantor's Lombard -Des Plaines Right of Way, as situated in the Southwest Quarter of
Section 22, Township 41 North, Range 11, East of the Third Principal Meridian, Cook County, Illinois,
as acquired under Warranty Deed dated May 9, 1960, and recorded on May 11, 1960 as Document No.
17835025.
Tax Parcel No. 5296
Pin No. 8-22-303-005
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