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R-19-19VILLAGE OF DEERFIELD RESOLUTION NO. 2019- R-19-19 A RESOLUTION APPROVING A PIPELINE EASEMENT AGREEMENT WITH THE COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY WHEREAS, the Village of Deerfield ("Village's is a home rule municipality in accordance with Article VII, Section 6 of the Constitution of the State of Illinois of 1970; and WHEREAS, the Village has a storm sewer system ("Utility System' located under a portion of Greenwood Avenue where it crosses the Commuter Rail Division of the Regional Transportation Authority's ("Metra") Milwaukee District North Line's right-of-way and tracks ('Easement Premises'; and WHEREAS, neither the Village nor Metra can locate an easement agreement providing the Village an easement to maintain its Utility System on the Easement Premises; and WHEREAS, the Village and Metra desire to enter into an easement agreement ("Agreement's to ratify and more formally document the Village's right to maintain its Utility System on the Easement Premises ("Easement Agreement'; and WHEREAS, the Village Board has determined that it will serve and be in the best interests of the Village and its residents to enter into the Easement Agreement with Metra; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows: SECTION 1: RECITALS. The Village Board hereby adopts the foregoing recitals as its findings, as if fully set forth herein. SECTION 2: APPROVAL OF EASEMENT AGREEMENT. The Village Board hereby approves the Easement Agreement by and between the Village and Metra in substantially the form attached to this Resolution as Exhibit A and in a final form approved by the Village Manager. SECTION 3: AUTHORIZATION TO EXECUTE EASEMENT AGREEMENT. The Village Board hereby authorizes and directs the Village President and the Village Clerk to execute and seal, on behalf of the Village, the final Easement Agreement, SECTION 4: EFFECTIVE DATE. This Resolution shall be in full force and effect from and after its passage and approval according to law. [SIGNATURE PAGE FOLLOWS] AYES: Benton, Jester, Seiden, Shapiro, Struthers NAYS: None ABSTAIN: None ABSENT: Oppenheim PASSED: July 15, 2019 APPROVED: July 16, 2019 RESOLUTION NO: R-19-19 Harriet Rosenthal, Mayor ATTEST: Keni S, Street, Vill ge Clerk M LEtra 547 W. Jackson Boulevard, Chicago, IL 60661 312-322-6900 metrarail.com September 3, 2019 Mr. Tyler Dickinson Village of Deerfield 850 Waukegan Road Deerfield, Illinois 60015 RE: Completed Pipeline Easement Agreement RE22259 Storm sewer system under Greenwood Avenue, Deerfield Milwaukee District North Line Mr. Dickinson, Attached for the records of the Village of Deerfield is a fully executed original counterpart of Pipeline Easement Agreement RE22259. Metra is in receipt of your check #244503 for $2,500 covering the contract preparation fee. Please contact me if you have any questions at (312) 322-2987. Sincerely, �� o L'trl(\) Lynn Dion, Right of Way Administrator Real Estate & Contract Management Enclosure PIPELINE EASEMENT Prepared by: Commuter Rail Division 547 West Jackson Boulevard Chicago, Illinois 60661 Attn: Director, Real Estate and Contract Management Phone: (312) 322-8006 After recording return to: Village of Deerfield 850 Waukegan Road Deerfield, Illinois 60015 Attn: Village Manager Phone: 847-945-5000 PIN: a portion of 16-29-400-020 (Above Space for Recorder's Use Only) PIPELINE EASEMENT AGREEMENT THIS EASEMENT AGREEMENT Metra Agreement No. RE22259 ("Agreement") is made by and between the Commuter Rail Division of the Regional Transportation Authority whose address is 547 West Jackson Boulevard, Chicago, Illinois 60661 ("Metra") and the Village of Deerfield, an Illinois municipal corporation with offices located at 850 Waukegan Road, Deerfield, Illinois 60015 ("Grantee"). Upon Grantee's application to perform a rehabilitation project on an existing storm sewer system ("System") a part of which is under Greenwood Avenue where it crosses Metra's Milwaukee District North Line's right of way and tracks ("MD-N") the approximate location as shown on Exhibit A ("Easement Premises") it was discovered that Grantee did not have rights to have the System on Metra's property. 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 a non-exclusive Easement ("Easement"), for the right to continue to operate maintain, and renew the System as delineated on Exhibit B for the purpose of proper drainage in and around Greenwood Avenue where it crosses the MD-N (hereinafter the "Pipeline") and no other purpose, along, across and underneath the MD-N at (MP 25.1) in Deerfield, Illinois (Latitude 42.174579 Longitude-87.852026), together with the right of reasonable access thereto for the purpose of exercising the rights and privileges granted in this Agreement. Page 1 of 13 THIS EASEMENT is granted upon the following express conditions, terms and covenants to be observed, kept and performed by Grantee: 1. As one of the considerations for this Easement, Grantee agrees to pay to Metra the sum of $2,500 for the cost of preparing this Easement, payable in advance. 2. Any maintenance, repairs, replacements or renewals upon the Premises, shall be as directed by Metra's authorized representatives. All of said work shall be done at Grantee's sole cost and expense, in a good and workmanlike manner, and in accordance with plans, specifications, and profiles to be prepared by Grantee and submitted for approval to Metra's authorized representatives, and until such approval is given, said work upon the Premises shall not be commenced by Grantee. 3. Upon completion of any installation, reconstruction, maintenance, repair or replacement of the Pipeline, Grantee, at its own cost and expense, shall remove any debris and restore, or cause to be restored to the reasonable satisfaction of Metra, the Premises and any other portion of Metra's property ("Property") that may be affected, as nearly as may be possible, to the same or better condition than that which existed immediately prior to commencement of such activities by Grantee. In the event Grantee fails to cause the Premises and the Property to be restored to the reasonable satisfaction of Metra as provided for herein, Metra shall have the right to restore the Premises and the Property and Grantee shall reimburse Metra for all costs and expenses incurred by Metra in its performance of the obligations imposed upon Grantee hereunder. 4. Metra shall permit Grantee reasonable right of entry to the Premises for the purpose of routine maintenance and operation of said Pipeline. Grantee's contractor(s) will be required to enter into a Right of Entry Agreement with Metra prior to any access to the Premises for the purpose(s) of installation, construction, reconstruction, repair, replacement, or removal of said Pipeline. An application for a Right of Entry Agreement can be found at Metra's website or by contacting Metra's Right of Way Administrator at 312-322-1592. Grantee shall contact Metra's Right of Way Administrator prior to performing any construction, revision, or action to the Pipeline or on the Premises or Property beyond that which would be reasonably considered routine maintenance and/or operation of the Pipeline. Said construction, revision, or action may require railroad flagging protection and/or revised insurance requirements depending on the scope of the work to be performed and the proximity of said work to the live tracks. 5. Any rights to the Premises not specifically granted to Grantee herein are reserved to Metra and its successors and/or assigns. The Pipeline shall be repaired, maintained, renewed, and operated in a manner so as not to interfere with efficient rail operations or any other business operations or activities being conducted by Metra or Metra's tenants or permittees on the Premises and so as not to prevent or unreasonably interfere with use and enjoyment of the Premises by Metra, its employees, agents or permittees for the purpose(s) to which the Premises is now, or may hereafter be committed by Metra. Metra shall have the right to retain the existing tracks and other improvements at the location of this Pipeline on or adjacent to the Premises and also shall have the right at any and all times in the future to construct, maintain and operate over, under, across or Page 2 of 13 parallel to said Pipeline 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 track or tracks and other improvements as Metra may in the future construct or cause to be constructed over, under, across, or parallel to said Pipeline. This Easement is expressly subject to the rights of third parties to maintain utility and other improvements permitted by Metra on the Premises and the Property. Metra reserves the exclusive right to grant future Easements over, under, across or parallel to the said Pipeline, provided such Easements do not interfere with the Pipeline and the rights granted Grantee pursuant to this Agreement, as determined by Metra in its sole discretion. 6. Grantee agrees that it will bear and pay the entire cost of maintaining, repairing, replacing, renewing and operating said Pipeline. Grantee shall maintain, repair, replace, renew, and operate the Pipeline in accordance with all applicable federal, state and local municipal laws, ordinances, rules and regulations promulgated by governmental authorities. Grantee shall not perform any work upon the Premises until Metra has approved Grantee's plans, specifications and profiles, such approval not to be unreasonably withheld or delayed. Metra's approval of Grantee's plans, specifications and profiles, shall not relieve Grantee of the duty to verify that the plans, specifications and profiles, and all amendments thereto, are in compliance with the requirements of this paragraph. 7. Grantee shall not place, keep, store or otherwise permit to be placed, kept or stored any equipment or materials on the Premises or the Property 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. S. 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 Pipeline. 9. Grantee agrees that before and during the installation, construction, replacement, repair, maintenance, or operation of said Pipeline, 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 the Property as near as may be to the same condition that existed before the commencement of said work. 10. Grantee agrees that should the construction, maintenance, operation, repair or presence of the Pipeline necessitate any change or alteration in the location or arrangement of any Page 3 of 13 other pipelines, 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. 11. Grantee shall at all times repair, replace, maintain, renew, and operate said Pipeline in a secure, safe, and sanitary condition and in accordance with all applicable laws, ordinances, rules and regulations. Grantee shall take all reasonable safety precautions to adequately secure the Premises, warn of risks and ensure the safety of the public during periods of construction, reconstruction, replacement, repair, maintenance and operation of the Pipeline. If the manner of repairing, maintaining, replacing, renewing, or operating said Pipeline shall at any time be in violation of any applicable law, ordinance, rule, or regulation promulgated by governmental authority, then Grantee shall, at no cost or expense to Metra, upon receipt of appropriate notice from a governmental agency having enforcement jurisdiction over the Premises, make such changes or repairs as shall be necessary. Failure or refusal of Grantee to make the required changes or repairs within the time prescribed by said agency shall terminate this Agreement, and Grantee's rights and interest shall revert to Metra; provided, however, that this Agreement that it shall not terminate as long as Grantee, in good faith and by pursuit of appropriate legal or equitable remedies, enjoins, defends against, appeals from or pursues other lawful measures to avoid the enforcement of said laws, ordinances, rules or regulations or so long as Grantee is diligently pursuing compliance.. 12. To the fullest extent permitted by law, Grantee hereby assumes and agrees to release, acquit and waive any rights against and forever discharge Metra, the Regional Transportation Authority ("RTA") and the Northeast Illinois Regional Commuter Railroad Corporation ("NIRCRC"), their respective directors, administrators, officers, employees, agents, successors, assigns and all other persons, firms and corporations acting on their behalf or with their authority from and against any and all claims, demands or liabilities imposed upon them by law or otherwise of every kind, nature and character on account of personal injuries, including death at any time resulting therefrom, or on account of damage to or destruction of property arising out of or in any way relating to or occurring in connection with, the use of the Premises or the Property for the purposes set forth in this Agreement, or which may occur to or be incurred by Grantee, its employees, officers, agents and all other persons, firms and corporations acting on Grantee's behalf or with Grantee's authority while on the Premises or the Property, or arising from the condition of the Premises or the Property during the term of this Agreement, 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 releases and waivers contained in this paragraph shall survive termination of this Easement. 13. To the fullest extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless Metra, the RTA and the NIRCRC, their respective directors, administrators, officers, agents, employees, successors, assigns and all other persons, firms and corporations acting on their behalf or with their authority, from and against any and all injuries, liabilities, losses, damages, costs, payments and expenses of every kind and nature (including, without limitation, court costs and attorneys' fees) for claims, demands, actions, suits, proceedings, judgments, settlements arising out of or in any way relating to or occurring in connection with: (i) the activities permitted Page 4 of 13 under the terms and provisions of this Agreement; (ii) the condition of the Premises or Property; (iii) the failure to investigate claims; or (iv) which may occur to or be incurred, by the Grantee, its employees, officers, agents, and all other persons acting on its behalf while on the Premises or Property, whether or not such injuries, liabilities, losses, damages, costs, payments or expenses are caused by the actions, omissions or negligence of Metra, the RTA or the NIRCRC. Metra agrees to notify the Grantee in writing within a reasonable time of any claim of which it becomes aware which may fall within this indemnity provision. Grantee further agrees to defend Metra, the RTA, the NIRCRC, their respective directors, administrators, officers, agents and employees against any claims, suits, actions or proceedings filed against any of them with respect to the subject matter of this indemnity provision provided, however, that Metra, the RTA and the NIRCRC, may elect to participate in the defense thereof at their own expense or may, at their own expense, employ attorneys of their own selection to appear and defend the same on behalf of Metra, the RTA, the NIRCRC, and their respective directors, administrators, officers, agents or employees. The 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 Agreement. 14. Prior to entering upon the Premises, Grantee agrees to furnish insurance in form and in such amounts as required by Metra's Risk Management Department (312-322-7093) and shall deliver to Metra's Risk Management Department certificates of insurance or such other documentation acceptable to Metra's Risk Management Department. During all periods that Grantee or those persons authorized by or acting on behalf of Grantee are on the Premises to perform or cause to be performed any installation, construction, maintenance, or repair with respect to the Pipeline, Grantee shall cause the Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation, and its affiliated separate public corporation known as the Northeast Illinois Regional Commuter Railroad Corporation, both operating under the service mark Metra, as now exists or may hereafter be constituted or acquired, and the Regional Transportation Authority, an Illinois municipal corporation and any other railroads operating on Metra property and/or other railroads as required are named as additional insured on all insurance policies relating to the Premises. At a minimum; Grantee shall obtain and keep in force the insurance coverages, kinds, and amounts, relating to the Premises as listed below (Metra may change said insurance requirements from time to time). 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) Worker's Compensation Insurance (Coverage A) in an amount no less than required under State law. Additionally, Employer's Liability (Coverage B) in an amount no less than One Million Dollars ($1,000,000 — each accident, $1,000,000 — each disease and $1,000,000 policy limit -disease); (b) Business Automotive Liability Insurance with coverage of no less than One Million Dollars ($1,000,000) combined single limit; Page 5 of 13 (c) Commercial General Liability Insurance with coverage of no less than Two Million Dollars ($2,000,000) per occurrence; and Four Million Dollars ($4,000,000) aggregate. The Commercial General Liability insurance policy shall not include any exclusion for leakage, see a e or Pollution emanating fiom the i eline s . (d) Railroad Protective Public Liability Insurance (AAR-AASHTO form) in the name of The Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation, and its affiliated separate public corporation known as the Northeast Illinois Regional Commuter Railroad Corporation, both operating under the service mark Metra, as now exists or may hereafter be constituted or acquired, and the Regional Transportation Authority, an Illinois municipal corporation and any other railroads operating on Metra property and/or other railroads as required are named as additional insured, providing for a limit of no less than Five Million Dollars ($5,000,000) 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 on occurrence. Grantee will furnish such insurance with an aggregate of no less than Ten Million Dollars ($10,000,000) for all damages as a result of more than one occurrence. 15. Grantee or its contractor(s) shall not commence any work until it has obtained and provided the required insurance and has received approval of same by Metra. All policies must be in full force at the time of submission and shall not be canceled, modified, limited or allowed to expire without having given Metra thirty (30) days prior written notice of such. Notice must be sent via certified mail to: Metra, Attention: Director, Risk Management, 15th Floor, 547 West Jackson Boulevard, Chicago, Illinois 60661. 16. This Easement may be terminated by Metra effective immediately upon notice to Grantee if the Premises, or any portion thereof, are needed for any Metra or railroad purposes as determined by Metra in its sole discretion or Grantee ceases to operate or maintain the Pipeline or violates any of the terms, conditions or provisions set forth in this Easement. In case of termination, Grantee shall remove fiom the Premises said Pipeline and shall restore said Premises to the same or better condition than that which existed prior to the construction and installation of said Pipeline; or upon failure, neglect or refusal of Grantee to do so, Metra may make or cause to be made such removal and restoration, and the total cost hereof shall be paid by Grantee; or, if Metra shall so elect, it may treat the said Pipeline as abandoned by Grantee and may make such disposition thereof as it may see fit. This Easement shall be perpetual unless terminated in accordance with the terms. 17. This Easement and all of the terms, conditions, rights and obligations herein contained shall inure to and be binding upon the Parties, their respective legal representatives, lessees, permittees, successors and/or assigns whether hereinabove so stated or not; but it is distinctly agreed that Grantee shall not assign its rights under this Easement without first having received the prior written consent of Metra. Page 6 of 13 18. All payments required to be made by Grantee 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 indebtedness due. Payments not made within said sixty (60) day period shall accrue interest at a rate of one and one half percent (1 'h%) 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, or hand delivered to the respective addresses shown below or to such other party or address as either party may from time to time furnish to the other in writing. Such notices, demands, elections and other instruments shall be considered delivered to recipient on the second business day after deposit in the U.S. Mail, or on the day of delivery if hand delivered. (a) Notices to Metra shall be sent to: Metra 547 W. Jackson Boulevard Chicago, Illinois 60661 Attn: Director, Real Estate & Contract Management Phone: (312) 322-8006 (b) Notices to Grantee shall be sent to: The Village of Deerfield, IL 850 Waukegan Road Deerfie d, IL 60015 Attn: C &X vta��f Phone: 8�k RH 5- S000 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 Page 7 of 13 the plural, the plural shall include the singular and the masculine, feminine and neuter shall be freely interchangeable. In the event the time for performance hereunder falls on a Saturday, Sunday or holiday, the actual time for performance shall be the next business day. This Easement constitutes the entire agreement between the parties with respect to the subject matter hereof. GRANTEE ACKNOWLEDGES THAT INSTRUMENTS OF RECORD, COURT DECISIONS, OR THE LAWS OF THE STATE IN WHICH THE EASEMENT PREMISES ARE LOCATED MAY LIMIT THE QUALITY OF METRA' S TITLE. GRANTEE FURTHER ACKNOWLEDGES THAT GRANTEE PURCHASES THE EASEMENT SUBJECT TO THESE POSSIBLE LIMITATIONS ON THE TITLE AND ASSUMES ALL RESPONSIBILITY FOR INVESTIGATING THE TITLE TO THE EASEMENT PREMISES AND THE APPLICABLE LAWS OF THE STATE. (Signature Page to Follow) Page 8 of 13 IN WITNESS WHEREOF, the p this day of P�ufA U s -- arties hereto have duly executed this Agreement as of 201 `I COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY d/b/a METRA: 12s M. Derwinski, CEO/Executive Director GRANTEE, VILLAGE OF DEERFIELD: If , By: 1 Name: i e 4 S. -S4to4 Title: WITNESS: By: J�affjASecretary (Name) WITNESS: By: Name. C Title: Page 9 of 13 STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that James M. Derwinski, personally known to me to be the CEO/Executive Director of the Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation, and CtY1 otgy r , personally known to me to be the Assistant Secretary of the Board of said Corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as Executive Director and Assistant Secretary of the Board of said Corporation, they signed and delivered the said instrument in their official capacities pursuant to authority given by the Board of Directors of said Corporation and as the free and voluntary act and deed of said Corporation, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this 3U4� day of AQ+ , 2019. 4�7 Notary Public (SEAL) `011i.011 JCL SANDRA. T 1P!-�.r NOTARY PUBLIC �•G�If��'d F,XFIRES:Q4I24/2,� 7:7— Page 10 of 13 STATE OF ILLINOIS )SS - COUNTY OF LAKE 1, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that Kent Street _ , personally known to me to be the Village Manager of the Village of Deerfield , and David Fitzgerald personally known to me to be the Deputy 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 acknowledged that as Village Manager and Deputy Clerk ,of said Village , they signed and delivered the said instrument in their official capacities and as the free and voluntary act and deed of said Village , for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this _lLo �day of , 201. Notary Public (SEAL) ANDREW S LICHTERMAN Olfidal. Seat ��- NotarY Public - Staie of Illinois My Commission Expires Nov 15, 2020 Page 11 of 13 Exhibit A w, Page 12 of 13 V O a 7 C' o .o E ' c s u me p� co E y Exhibit B CL L O I T 1 � 1 t yJ p } nll 1 Page 13 of 13