HomeMy Public PortalAboutResolution 1368
RESOLUTION NO. 1368
A RESOLUTION AUTHORIZING THE EXECUTION OF A SANITARY SEWER
EASEMENT AGREEMENT BETWEEN THE VILLAGE OF PLAINFIELD, AS GRANTEE,
AND COMMONWEALTH EDISON, AN ILLINOIS CORPORATION and LAKELAND
HOMES, LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, AS GRANTORS
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF PLAINFIELD, WILL AND KENDALL COUNTIES, AS
FOLLOWS:
I. That the Mayor is hereby authorized to execute, and the Clerk is likewise authorized to
attest to said Mayor's signature as to a certain Sanitary Sewer Easement, which is
attached hereto and made a part hereof as Exhibit "A" between the Village of
Plainfield, Commonwealth Edison Company, and Lakeland Homes, LLC.
PASSED THIS 16th DAY OF June , 2003
AYES: Fay, Waldorf, Collins, Swalwell, O'Connell.
NAYS: 0
ABSENT:0
APPROVED THIS 16th DAY OF June , 2003.
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ATT ~ _ ~-~ -
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t:~ _
-~` LAGE CLERK
VILLAGE PRESIDENT
SANITARY SEWER
EASEMENT
Property: Plai7~eld By Pass R/W
Parcel No. 1Q
Southeast Quarter,
Sec. 21 Twp. 36 N Rng. 9 E. of 3rd. P ]vI
Will County, Illinois
C. E. Co. Region: Southern
SANITARY SEWER EASEMENT
THIS SANITARY SEWER EASEMENT (Easement") is made, entered and granted on
this day of , 2003, by and between COMMONWEALTH EDISON COMPANY, an
Illinois corporation ("Grantor"), and VILLAGE OF PLAINFIELD, an Illinois municipal
corporation ("Grantee").
WITNESSETH
WHEREAS, Grantor is the owner of a parcel of land in the Village of Plainfield, County
of Will and State of Illinois, described in Exhibit "A" attached hereto and made a part hereof
("Grantor's Property"); and
WHEREAS, Grantee has requested that Grantor grant to Grantee a non-exclusive
easement to construct and operate certain facilities on 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, clang or across Grantor's Property
(collectively, "Grantor's Operations"); and
WHEREAS, Grantor has agreed to grant, and Grantee has agreed to accept, the easement
described hereinbelow, subject to the terms. and conditions of this Agreement;
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, anon-exclusive easement for the purpose of installing,
operating, maintaining, replacing, and one (1) 10-inch diameter sanitary sewer, (hereinafter
referred to as "Grantee's Facility"), and far no other purpose whatsoever, in, and across that
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portion of Grantor's Property which is a strip of land (the "Easement Premises") being twenty
(20) inches in width and lying ten. (10) inches along either side of the sanitary sewer main's
center line ("Center Line"), together with such additional space that may be required for the
physical occupation of the sanitary sewer, said Center Line is more particularly shown and
located on Jacob & Hefner Associates, Inc., plan and profile for the Streams of Plainfield
Sanitary Sewer Extension crossing dated 7/11/2002 for the Sanitary Sewer drawing, sheets C1,
C2, C3 and C4, for the 10" Sanitary Sewer project in Will County, Illinois, last revision date
4/11/2003, marked Exhibit "B", attached hereto and made a part hereof.
This Easement is made subject to Grantee's full and faithful performance and observance
of the following covenants, terms and conditions:
1. Grantee's Use. The following general conditions shall apply to Grantee's use of
the Easement Premises:
a. This Easement shall include such non-exclusive temporary rights of
ingress and egress over a strip of land thirty (30) feet in width and located fifteen (15)
feet along either side of the Center Line as depicted in Exhibit "B" hereto ("Access
Area"), as maybe reasonably required by Grantee far the construction, maintenance,
repair, replacement and removal of Grantee's Facility, which rights of ingress and egress
shall be subject and subordinate in all respects to Grantor's Operations and limited to
such temporary access routes over the Access Area as Grantor in its sole discretion m.ay
designate from time to time. The term "Easement Premises" as used herein shall include
the Access Area.
b. 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 ar local governmental authority in connection
with the construction, placement, use and operation of Grantee's Facility, and Grantee
shall strictly observe all laws, rules, statutes and regulations of any governmental
authorities having jurisdiction aver 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 ar withheld in Grantor's sole
discretion.
c. In the event any aspect of Grantee's construction, placement, maintenance,
repair, use or operation of Grantee's Facility 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 Grantee's
Facility 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 far the
correction of such violation.
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d. Grantee's use of the Easement Premises shall be conducted in a manner
that does not conflict or interfere with Grantor's Operations.
e. 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.
f. Grantee's obligations and liabilities to Grantor under this Agreement with
respect to Grantee's Facility 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
Grantee's Facility, and Grantee shall be and remain liable to Grantor for the installation
and operation of Grantee's Facility in accordance with the terms and conditions of this
Agreement, notwithstanding Grantee's failure or refusal to accept delivery of or title to
such facilities from any such third parties.
g. 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 and to the existence of its 36-inch diameter gas main, and to Kinder Morgan
Pipeline Company ,successor to Hydrocarbon Transportation Company Inc., and to the
existence of its 10-inch pipeline both as located in 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 terrr~s,
conditions and covenants of this Agreement, and shall commence as of the date first hereinabove
written.
3. Fee. In addition to all terms, conditions and covenants agreed to by Grantee
and contained herein, as further consideration far this Easement, Grantee shall pay Grantor the
agreed upon consideration far the granting of this Agreement, which amount shall be due and
payable to Grantor, prior to Grantor's execution and granting of this Agreement.
4. Rights Reserved to Grantor.
a. Grantor hereby reserves the right at all times to use the surface and
subsurface of the Easement Premises for Grantor's Operations in such manner as Grantor
deems necessary or appropriate. Grantor's use of Grantor's Property, including the
Easement Premises, at all times to gain access to any of Grantor's equipment and
facilities thereon shall be paramount to the rights granted to Grantee hereunder and
Grantee shall make such access available to Grantor at all times.
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.
S. Relocation and Restoration of Easement Premises. The following terms and
conditions shall govern the rights and obligations of the parties with respect to relocation and
restoration of the Easement Premises:
a. In the event any alteration, expansion, upgrade, relocation or other change
in Grantor's Operations interferes or conflicts with Grantee's use of the Easement
Premises hereunder, Grantor shall notify Grantee in writing of such proposed change and
the conflict posed by this Easement or the presence of Grantee's Facility on the Easement
Premises. Such notice shall captain Grantor's estimate of the additional costs Grantor
will incur if the proposed change in Grantor's Operations must be altered to avoid ar
minimize any conflict or interference with Grantee's use of the Easement Premises.
Within ten (10) days after receipt of such notice, Grantee shall notify Grantor in writing
of its election to (i) xnake such changes in Grantee's Facility, at Grantee's cost, as in the
judgment of Grantor xnay be required to avoid or minimize any conflict or interference
with the prapased change in Grantor's Operations, including without limitation the
relocation of Grantee's Facility to another location on Grantor's Property designated by
Grantor, ar (ii) reimburse Grantor for all additional casts incurred by Grantor in altering
the prapased change in Grantor's Operations to avoid or minimize such conflict ar
interference. In the event Grantee fails to notify Grantor in writing of such election
within such ten- (10) day period, Grantee shall be conclusively deemed tv have elected to
reimburse Grantor for its additional casts as provided in clause (ii) hereinabove. In the
event Grantee elects to make all changes to Grantee's Facility, including relocation to
another location designated by Grantor, required to avoid conflict with the proposed
change in Grantor's Operations, Grantee, at its sale cast and in accordance with all
applicable terms and conditions of this Agreement, shall promptly take all steps
necessary to complete such changes and relocation within a reasonable time but in na
event later than sixty (60) days after the date of such election. In the event Grantee elects
to reimburse Grantor far the additional costs to be incurred by Grantor, Grantee shall
make such payment within thirty (30) days after Grantor's demand therefore.
b. Grantee agrees that, within thirty (30) days after the expiration ar
termination of this Easement for any reason, Grantee shall, at its cost, remove all of
Grantee's Facility from Grantor's Property and restore and repair Grantor's Property to
the condition existing prior to the installation of Grantee's Facility. In the event Grantee
fails to so remove its Facilities and restore and repair Grantor's Property, Grantor may
elect to da sa at Grantee's cost and expense, and, in such event, Grantor may dispose of
Grantee's Facility without any duty to account to Grantee therefore. Grantee shall pay all
costs and expenses incurred by Grantor in removing Grantee's Facility, including any
storage casts, 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
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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 therefore.
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 Grantee's Facility 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 CONDITIpN, 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 fox Grantee's intended use, except as maybe otherwise expressly
provided herein.
7. 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 Grantee's
Facility, 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. Upon completion
of such work, Grantee shall furnish to Grantor within 60 days "as-built" drawings
accurately showing the installed locations of all of Grantee's Facility.
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 ariy 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 therefore. 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.
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d. If Grantee performs any grading, leveling, digging or excavation work an
Grantor's Property, Grantee will notify JULIE at telephone number ($00) 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 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 Representative in
Oakbrook Terrace, Illinois, telephone number (630) 576-6967, 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, ar (iii)
Grantor and Grantee have failed to enter into such supplemental agreements as Grantor
deenras necessary or advisable regarding the performance of such work. Grantor retains
the right t0 5u5p~Ild Or stop all SUGh Work if In GraritOr's 501 lUd~ment the OngO1nQ
performance of such work endangers Grantor's facilities or threatens to interfere with
Grantor's Operations, and Grantor shall incur na 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 Grantee's 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 anal
(ii) restore all adjacent and other affected areas of Grantor's Property to their original
condition preceding the coznmenceznent of such work.
h. Grantee shall promptly notify Grantor of any damage caused to Grantor's
facilities arising out of ar related to the performance of such work, and Grantee will
reimburse Grantor on demand for the cost of any such related repairs and 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 far the cast of such
repairs. Grantee shall reimburse Grantor's tenants an demand far any damage to the
property of Grantor's tenants caused by, arising out of, or attributable to the performance
of such work. Damages shall include, but not be limited to damages to tenant craps,
fences, pastures, livestock, or equipment. Under no circumstances shall any blasting be
undertaken on Grantor's Property nar shall any vehicles ar 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 Grantee's Facility and Grantee at its cast shall repair
and replace all drainage tiles damaged or destroyed during the performance of such work.
j. Grantee will identify and incorporate the locations of all field tiles by
stationing on Grantee's construction plans. Grantee, at its sole cost and expense, shall
prepare an "as built" plat of survey upon completion of construction of Grantee's Facility,
and shall delivered six (6) copies of said "as built" to Grantor within sixty (60) days after
completion of the installation of Grantee's Facility.
k. The following additional specific requirements shall apply to the
performance of such work:
(i) Grantee agrees that Grantee's Facility will be installed in strict
conformity with the plans attached hereto as Exhibit "B".
(ii) Should any proposed changes to Grantee's Facility be required,
either before or after installation, Grantee, ar 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 Grantee's Facility enter or leave Grantor's Property,
at all road or street crossings, at all rail crossings and at all
locations where Grantee's Facility change direction in Grantor's
Property.
(iv) Grantee agrees, upon completion of the installation of Grantee's
Facility, 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 Grantee's
,Facility. At Grantor's sole election, Grantor may hermit Grantee
to evenly spread anyportion of the remainiza~psoil over
Grantee's Facility' alig_nmezat in Grantor's Property sa_l~n a~ s the
chap e in grade in Grantor's Pro ert does not result in a rode
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change.. Qf greater than 6-inches„ from the pre-existing_grade of
Grantor's Property Dior to the installation of Grantee's Facility
(v) Grantee agrees that all of Grantor's Property as affected by the
construction of Grantee's Facility 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 far agricultural purposes and/or those areas that
involve in wetland construction, where governmental wetland
restoration requirements shall take precedence. Grantee shall
manage the re-seeding process until a firm grass growth has been
established on Grantor's Property. Grantee agrees to leave
Grantor's Property in a neat, clean and orderly condition and to the
satisfaction of Grantor; including, but not limited to, the re-seeding
of Grantor's Property as required.
8. Covenants of Grantee.Grantee hereby covenants and agrees as follows:
a. Grantee shall obtain and maintain all rights, licenses, consents and
approvals required from any governmental authorities or third parties with respect to the
installation, use or operation of Grantee's Facility on Grantor's Property and, at Grantor's
request, Grantee shall provide Grantor with evidence thereof. Grantee shall cause
Grantee's Facility to be maintained at all times in good repair and in accordance with all
requirements of applicable law, and Grantee shall not permit any nuisances or other
unsafe ar hazardous conditions to exist in, on or under Grantor's Property in connection
with Grantee's Facility 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 cast
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 X 3.b hereof.
b. Grantee shall install Grantee's Facility 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 therefore, 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 cast of repairing any damage to Grantor's. equipment or
facilities or casts 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 far lien arises out of any contract or
agreement far work to be performed by or on behalf of Grantee in connection with this
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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 (with counsel acceptable to Grantor) and hold harmless Grantor
from and against any and all liens ar claims for lien arising out of or in any way
connected with Grantee's use and occupancy of the Easement Premises. The foregoing
indemnity shall survive the expiration or termination of this Easement.
d. Grantee shall pay to Grantor, within thirty (30) days after Grantor's
demand therefore, any and all real property taxes and assessments levied against
Grantor's Property during the term hereof that are attributable to Grantee's Facility or
Grantee's use and occupancy of the Easement Premises. Grantee shall be responsible for
the cast of any and all corrective actions required to address any impairment of surface
water drainage conditions affecting Grantor's Praperty or adjacent properties as a result
of Grantee's use and occupancy of the Easement Premises.
e. Grantee shall notify. Grantar in writing within thirty (30) days after the
date Grantee ceases to use Grantee's Facility 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. Zn the event Grantee
abandons Grantee's Facility, Grantee shall, if Grantor sa requests, convey all or any
portion of Grantee's Facility to Grantor pursuant to a bill of sale for one dollar ($1.00).
9. Hold Harmless.
a. To the fullest extent permitted by law, Grantee agrees to indemnify,
defend (with counsel acceptable to Grantor) and hold harmless Exelon corporation, a
Pennsylvania corporation, Grantor, and their respective employees, officers, directors,
agents, subsidiaries, affiliates, legal representatives, successors and assigns (collectively,
the "Grantor Group"), from and against any and all claims, actions, proceedings,
judgments, damages (including consequential damages), liens, fines, casts, liabilities,
injuries, losses, costs and expenses (including but not limited to attorneys' fees and costs
and loss of electrical service) arising from ar related to Grantee's use and occupancy of
the Easement Premises or any portion of Grantor's Praperty, or any work performed
hereunder by Grantee, its employees, agents, contractors or subcontractors, or anyone
claiming by through or under any of them, or any breach of this Agreement, except to the
extent that any such claim, action, proceeding, judgment, damage, lien, fine, cost,
liability, injury, loss, cost and expense is attributable solely to the willful misconduct of
any member of Grantar Group. 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 the members of Grantor Group, which Grantee or any
person or entity claiming by, through or under Grantee may now or at any time in the
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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 ar any acts
or omissions of any member of the Grantor Group. Grantor shall not be liable to Grantee
far any injury, loss or damage to persons, property or business sustained by Grantee, its
representatives, employees, agents, contractors or invitees in connection with this
Agreement or the rights granted to Grantee hereunder, unless such loss or damage results
solely from Grantor's willful misconduct. In no event shall Grantor be liable for any
such injury, loss ar damage resulting from any acts or omissions of any third party
occupants of the Easement Premises or any other portion of Grantor's Property ar the
public.
1.0. Insurance.
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 may, at its option, purchase and maintain, at its own
cost, on behalf of each such contractor or subcontractor), prior to
commencing any work on Grantor's Premises or any of Grantor's other
property, the fallowing insurance coverage's:
(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 there from. 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 ar death of one or
more persons and/or property damage sustained by one ar more organizations as a
result of any one occurrence, which policy or policies shall not exclude property
of Grantor. Grantor shall be added as Additional Insured under endorsement GL
2010 ar 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
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(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 the Installation, a certified copy of each policy of insurance or a
Certificate of Insurance evidencing the coverage's specif ed 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 an 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 or Grantee's contractor or contractors before entering the easement
premises or Grantor's other property to perform any work thereon.
(b) Grantee shall, in any event, purchase and maintain at all times during the
term of this agreement, at its sole cost, the following insurance coverage's:
(i) an Owner's, Landlord's and Tenant's Liability Insurance Policy or
it's equivalent in the name of Grantor as the insured, with limits of not less than
the coarnbined single limit of $5,000,000 for bodily injuries to or death of one or
more persons and/or property damage sustained by one ar more organizations as a
result of any one occurrence, which policy shall not exclude property of Grantor
and shall include automobile liability (owned and non-owned) with combined
single limits of not less than $2,000,000. 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 lass of use is caused by an occurrence during the policy
period;
OR
(ii) as an alternative to the Qwner's, Landlord's and Tenant's Liability
Insurance Policy or it's equivalent described hereinabave, Grantee .may purchase
and provide a rider or an endorsement to its existing Comprehensive General
Liability policy or policies of insurance naming Grantor, as an additional insured
under endorsement GL 2010 or CG 2010, covering the location of Grantee's
facilities, and including coverage extensions for premises/products/ completed
operations and contractual liability for Grantee's indemnity obligations hereunder,
provided that the limits and coverage in this alternative form of insurance are
equal to or greater than the limits and coverage's specified above in the Owner's,
Landlord's and Tenant's Liability Insurance Policy or it's equivalent. Grantor
hereby reserves unto itself the unrestricted right to either approve or reject, during
11
the term of this agreement, any such alternative form of insurance that may be
presented by Grantee.
Grantee shall furnish to Grantor, prior to Grantee's entry upon Grantor's Property
pursuant to this Agreement, a certified copy of each policy of insurance or a Certificate of
Insurance evidencing the coverages specified in subsections (i) ar (ii) of this Subsection
(b), and such insurance shall be kept continuously in force by Grantee so long as all or
any portion of the Grantee's Facility shall remain on the Licensed Premises. There shall
be na exclusion in any of said policies or renewals not approved by Grantor.
(c) All insurance policies required by this Section shall be issued by good and
reputable companies having a Best's Rating of A-/VII or better in the Best's Key Rating
Insurance Guide 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. Prior to the date of this agreement and within
thirty (30) days prior to each anniversary of the date of this agreement occurring during
the term hereof, Grantee shall furnish Grantor with certificates of insurance evidencing
Grantee's compliance with the requirements of this Section 10. 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 under this Easement.
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 (as defined below). Grantee shall not cause or permit any underground storage
tanks to exist or any Hazardous Materials to be introduced or handled an Grantor's
Property as a result of or in connection with Grantee's use and occupancy of the
Easement Premises. To the fullest extent permitted by law, Grantee shall defend (with
counsel acceptable to Grantor), indemnify and hold harmless each and every member of
Grantor Group, Pram 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 Earth 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
12
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 ar 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 ar 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 ar 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 perxx~its, licenses ar 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 ar 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 na 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.
13
l2. 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
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; ar
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 ar
Grantee's failure to furnish Grantor with evidence of such insurance as
required by said Section; or
e. Grantee's failure (i) to install Grantee's Facility on or before December
31, 2003, or (ii) operate or maintain Grantee's Facility for a period of
twelve (12) consecutive months after its installation..
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; ar
b. Take any and all corrective actions Grantor deems necessary ar
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 Bank One of Chicago (or at the prime rate then published by
any other money center bank located in Chicago) plus 2%, and (ii) an
administrative charge in an amount equal to twenty percent (20%) of the
cast 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
1 ~1
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 Agreerr~ent, 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 ar sent by
U.S. certified mail, return receipt requested, or by anationally-recognized overnight courier to
the parties at the fallowing addresses (or such substitute addresses as may be provided by either
party in the manner described herein):
If to Grantor: Commonwealth Edison Company
Real Estate & Facilities
Three Lincoln Center, 4t" floor
Oak Brook Terrace, IL. 40181
Attn: Dwight Owens
If to Grantee: Village of Plainfield
Attn: Allen Persons -Public Works Director
$35 W. 143rd Street
Plainfield, IL 60544
If to Developer: Lakeland Homes, lnc.
Attn: Jim Meigs
302 Garrison Circle
Barrington, lllinois b0010
Such notices shall be deemed effective when personally delivered, or if delivery is refused.
15. Miscellaneous.
15
a. Grantee's obligations under Sections S, 9, 11 and 13 hereof shall
survive the expiration or termination of this Easement and Grantee's rights and
privileges under this Agreement.
b. This Agreement and the rights and obligations of the parties hereto shall
be binding upon and inure to the benefit of the parties and their respective
successors, personal representatives and assigns; provided, however, that Grantee
shall have no right to assign all or any portion of its right, title, interest or
obligation in this Easement or under this Agreement without the prior written
consent of Grantor, which consent may be granted or withheld by Grantor in its
sole and exclusive discretion. Any attempt by Grantee to assign all or any portion
of its interest hereunder without Grantor's prior written approval shall be void and
of no force and effect. The terms "Grantor" and "Grantee" as used herein are
intended to include the parties and their respective legal representatives,
successors and assigns (as to Grantee such assigns being limited to its pernnitted
assigns).
c. Upon any transfer or conveyance of the Easement Premises by Grantor,
the transferor shall be released from any liability under this Agreement, and the
transferee shall be bound by and deemed to have assumed the obligations of
Grantor arising after the date of such transfer or conveyance.
d. This Agreement constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements related
thereto. There are no representations ar understandings of any kind related to the
subject matter hereof that are not fully set Earth herein. Any amendments to this
Agreement must be in writing and executed by Grantor and Grantee. Grantee
agrees to cooperate with Grantor in executing any additional documents
reasonably necessary to protect Grantor's rights under this Agreement.
e. This Agreement shall be construed in accordance with the laws of the
State of Illinois. Time is of the essence of this Agreement.
f. In the event that any governmental or regulatory body or any court of
competent jurisdiction determines that any covenant, term or condition of this
Agreement as applied to any particular facts or circumstances is wholly or
partially invalid, illegal or unenforceable, such invalidity, illegality or
unenfarceability 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.
16
g. No receipt of money by Grantor from Grantee, after the expiration or
termination of this Agreement shall renew, reinstate, continue or extend the term
of this Agreement.
h. By signing this Agreement, Grantee affirms and states that it does not
have any affiliated interest in Commonwealth Edison Company. Nothing in this
Agreement shall be construed as making the parties hereto partners, agents, joint
ventures, members of a joint enterprise.
i. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same Agreement.
j. This Agreement shall be executed for and on behalf of Grantee pursuant to
a resolution required by its Mayor and Village Council. Concurrently with its
execution and delivery of this Agreement, Grantee shall furnish Grantor with a
certified copy of such resolution as evidence of the authority herein exercised by
Grantee's officers executing this Agreement. 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.
k. A11 care and caution is to be used when working under and near Grantor's
overhead transmission and distribution line, and in the event that Grantor's woad
distribution poles need to be braced, it shall be at Grantee's expense, and prior to
any such excavation ar digging Grantee is to contact Grantor 's Distribution
Design Department in Joliet, Illinois at (815) 724-5693.
16. Re ulator A royal. This Agreement maybe subject to the approval of one or
mare 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.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
triplicate by their proper officers thereunto duly authorized as of the day and year first
hereinabove written.
COMMONWEALTH EDISON COMPANY
By:
Manager of Sales and Easements
VILLAGE OF PLAINFIELD
By•
Mayor
A.T'I'F~T:
~ ,
.pillage Clerk
This instrum_ ent i~~~ared by and after recQrdin~lease return to
D. Owens
Commonwealth Edison Company, Three. Lincoln Center 4'" floor
Oak Brook Tetrace, Illinois 60181.
18
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 S. Javidan, personally known to me to be the Manager of Sales and
Easements 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, an 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
2003.
Notary Public
Commission expires:
STATE OF 'ILLINOIS
COUNTY OF WILL ss.
I, the undersigned, N tary Public~-}n and far the County and State aforesaid, DO
HERESY CERTIFY, that ~ ¢ w K Q ~ , per~nally known to me to be the
Mayor of the VILLAGE OF PLAINFIELD, and u n Jam; ~' ,personally
known to me to be the 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 Mayor and Clerk, they signed and delivered the said
instntment, pursuant to authority given by the Village Council of said Village, pursuant to a
resolution or ordinance adopted by said Village, for the uses and purposes therein set forth.
Given under my hand and official seal, this /'~-day of J u h e- 2003.
n
Mr 1~_r iii; .,~~r
IVoiary ~•«~ • ~. `~;~~~ ~~ ~Slinnis Notary Pu 1G
My Commis~ic;~~ k..p. uIi I l/1D06
Commission Expires: 7 ~ / 7 - a a ~ <-
EXHIBIT A
19
GRANTOR' S PROPERTY
AN EIGHT (8) INCH SANITARY SEWER LINE IN THAT PART OF THE EAST HALF OF
THE SOUTHWEST QUARTER OF SECTION TWENTY ONE (21), TOWNSHIP THIRTY
SIX (36) NORTH, RANGE NINE (9) EAST OF THE THIRD PRINCIPAL MERIDIAN,
DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE EAST LIlVE OF THE
EAST HALF OF SAID SECTION TWENTY ONE (21) TWO HUNDRED SEVENTY FIVE
AND FOURTEEN HUNDREDTHS (275.14) FEET NORTH OF THE SOUTHEAST CORNER
OF THE EAST HALF OF SAID SECTION TWENTY ONE (21) WHICH IS ON THE NORTH
LINE OF PROPERTY CONVEYED TO COMMONWEALTH EDISON COMPANY BY
DEED RECORDED SEPTEMBER 24, 1958, IN THE OFFICE OF RECORDER OF DEEDS,
WILL COUNTY, ILLINOIS, AS DOCUMENT NO. 857620; THENCE NORTH ALONG THE
EAST LINE OF THE EAST HALF OF SAID SECTION TWENTY ONE (21) FOUR
HUNDRED THIRTEEN AND TWENTY TWO HUNDREDTHS (413.22) FEET FOR THE
POINT OF BEGINNING; THENCE WEST TO A FOINT WHICH IS ONE HUNDRED
FORTY (140) FEET WEST OF THE EAST LINE OF THE EAST HALF OF SAID SECTION
TWENTY ONE (21) (MEASURED AT RIGHT ANGLES THERETO) FOR THE POINT OF
TERMINATION, ALL IN WILL COUNTY, ILLINOIS.
C.E. Co. Tax Parcel No.: 4503
Property Lndex No. 03-21-400-003-0000
20
DEVELOPER'S UNCONDITIONAL AND IRREVOCABLE GUARANTY OF PAYMENT
AND PERFORMANCE
Lakeland Homes, LLC, a Illinois corporation ("Developer"), hereby unconditionally and
irrevocably guarantees to and for the benefit of COMMONWEALTH EDISON COMPANY, an
Illinois corporation ("Grantor"), the payment of all sums as and when due from the Village of
Plainfield, an Illinois municipal corporation ("Grantee"), under the foregoing Sanitary Sewer
Easement and the full and faithful performance of all abligations of Grantee under the foregoing
Easement, including without limitatian the installation of the Grantee's Facility in accordance
with the terms and conditions of the faregoing Easement. This guaranty shall expire on the date
of Grantee's acceptance of title to the Grantee's Facility, as evidenced by Developer's delivery
to Grantor of evidence reasonably acceptable to Grantar that Developer has delivered and
Grantee has accepted title to the Grantee's Facility. Developer waives and releases any right of
contribution, reimbursement or other similar right it might have against Grantee in connection
with this Guaranty.
LAKELAND HOMES, LLC
Title
sy
ecretary
DATE ACCEPTED: ~-07 y--d~
21