HomeMy WebLinkAboutRESOLUTIONS-2015-064-R-156./9/2015
64-R-15
A RESOLUTION
Authorizing the City Manager to Negotiate and Execute an Easement
Agreement with Northwestern University
WHEREAS, The City is the owner of two right-of-way sections of alley
between (1) North of Haven, East of Orrington ("H" alley, eastern north/south leg); (2)
North of Garrett Place, East of Orrington Avenue ("H" alley, western north/south leg)
(collectively referred to as the "Property"), which are adjacent to Northwestern
University's ("Northwestern") campus; and
WHEREAS, Northwestern seeks to demolish the existing alley street and
construct a "green alley" with porous concrete alleys on the Property that services
Northwestern's campus community, the City will waive the right-of-way permit fees and
all remaining costs of construction wile be paid for by Northwestern (the "Project"); and
WHEREAS, Northwestern has requested that the City grant to
Northwestern a Temporary Construction Easement for the Project ("Easement
Agreement") to conduct construction activities on the Property and the City has agreed
to grant said easement and the City will maintain and repair the green alley following
construction at its expense,
NOW BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
EVANSTON, COOK COUNTY, ILLINOIS, THAT:
SECTION 1: The City Manager is hereby authorized to execute the
Easement Agreement with Northwestern, the agreement is attached hereto as Exhibit
64-R-15
1, the terms are incorporated herein by reference. The City is responsible for
maintaining and repairing the Property after completion of the Project.
SECTION 2: The City Manager is hereby authorized and directed to
negotiate any additional conditions of the Easement Agreement as he may determine
to be in the best interests of the City and in a form acceptable to the Corporation
Counsel.
SECTION 3: -That this Resolution 64-R-15 shall be in full force and effect
from and after the date of its passage and approval in the manner provided by law.
Att
Ro6riey Gre e1, City Clerk
Adopted: 2015
Eliz eth B. Tisdahl, Mayor
—2—
E4-R-15
EXHIBIT 1
Easement Agreement
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PROJECT AGREEMENT
THIS PROJECT AGREEMENT ("Project Agreement") is made as of
, 2015 by and between THE CITY OF EVANSTON ("City") and
NORTHWESTERN UNIVERSITY, an Illinois corporation ("Northwestern") (each
referred to herein as "a Party" or, collectively, as "the Parties").
RECITALS
A. The City is the owner of two right-of-way sections of alley between (1)
North of Haven, East of Orrington ("H" alley, eastern north/south leg); (2) North of
Garrett Place, East of Orrington Avenue ("H" alley, western north/south leg) (collectively
referred to as the "Property"), which are adjacent to Northwestern's property commonly
known as Northwestern University Evanston Campus.
B. Northwestern seeks to demolish the existing alley street and construct
porous concrete alleys on the Property that service Northwestern's campus community
(the "Project").
C. Northwestern has requested that the City grant to Northwestern a
Temporary Construction Easement to use and access that portion of the Property
identified in Exhibit 1 ("Temporary Easement Area") to conduct construction activities
on the Property, solely for purposes of supporting construction on the Property,
including staging, pouring of concrete, demolition and hauling away of broken concrete
and other associated construction activities for the alley construction project. The City
has agreed to grant such Temporary Construction Easement, subject to the terms and
conditions of this Project Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are hereby
incorporated in and made a part of this Project Agreement as if fully set forth below, the
mutual agreement of the parties hereto and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Grant of Temporary Construction Easement. Subject to the terms of this
Project Agreement, City will grant to Northwestern, its invitees, employees, agents,
contractors and subcontractors, a Temporary Construction Easement for access over,
upon, through and across the Property for construction of the porous concrete alleys on
the Property and for no other purposes, the easement area is depicted on Exhibit 1 and
incorporated herein by reference ("Temporary Construction Easement"). The
Temporary Construct Easement shall commence ("Project Term"), after the Right -of -
Way permit is issued by the City and expires November 15, 2015. The parties
anticipate that the construction schedule is July 2015 — September 2015 to construct
the alleys and Northwestern will complete punch list items for the Alleys in October and
November 2015.
Northwestern is responsible for all construction staging, traffic control, and
signage for the Project.
Together with the right of the Grantee, its successors and assigns, to go on said
Temporary Construction Easement area with necessary labor, equipment, vehicles and
material at any and all times for the purposes of facilitating the construction of the alleys
on City Property, the City hereby grants and conveys to Northwestern contractors,
subcontractors, agents, employees and representatives, a temporary construction
easement ("Temporary Construction Easement") to enter in, upon, under and across
the Property for the Project. Notwithstanding the terms stated in the project agreement
between the parties (the "Project Agreement") which governs the demolition and
construction of the Project in the alleys, said Temporary Construction Easement shall
include the right and obligation to removal of existing of alley pavement, replacement of
alley pavement and minor drainage improvements and restoring the Property to its
condition that existed prior to the Northwestern's entry.
2. Porous Concrete Allev Construction. Northwestern shall adhere to all
approved engineering plans and specifications that were approved by the City for this
Project. The City and Northwestern agree that the Project shall be at the sole cost and
expense of Northwestern, including any and all permit fees for the construction and the
survey for the Project. Northwestern shall comply with all local, state and federal
regulations during the Project Term for the Project improvements and obtain all
necessary permits for construction. The City has agreed to waive the right-of-way permit
fee for this Project. Notwithstanding the right-of-way permit fee, all costs associated
with this Project shall be paid by Northwestern with no right of reimbursement by the
City. Following completion of the Project, the City is responsible for performance and
costs associated with maintenance and repair of the Property.
3. Environmental. Northwestern shall comply with all Environmental Laws
(hereinafter defined) and shall not cause or permit any Hazardous Substances
(hereinafter defined) to be brought, kept or stored on the Property, and shall not engage
in or permit any other person or entity to engage in any activity, operation or business
on the Property that involves the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of Hazardous Substances. In the event that
any work performed by or on behalf of Northwestern on or to the Property exposes,
uncovers or results in the presence of Hazardous Substances on the Property (including
presence in soils excavated in conjunction with the Project), Northwestern, at its sole
cost and expense, shall be responsible for the remediation of such Hazardous
Substances in accordance with Environmental Laws, except to the extent caused by
C ity.
As used in this Project Agreement, "Hazardous Substances" means all
hazardous or toxic materials, substances, pollutants, contaminants, or wastes currently
identified as a hazardous substance or waste in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended, the
Superfund Amendments and Reauthorization Act ("SARA"), the Resource Conservation
and Recovery Act ("RCRA"), or any other federal, state or local legislation or ordinances
applicable to the Property. As used in this Project Agreement, "Environmental Laws"
means all federal, state and local environmental laws, rules, statutes, directives, binding
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written interpretations, binding written policies, ordinances and regulations issued by
any governmental authority and in effect on or after the date of this Project Agreement
with respect to or that otherwise pertain to or affect the Property, or any portion of the
Property, the use, ownership, occupancy or operation of the Property, or any portion of
the Property, or any owner of the Property, and as same have been amended, modified,
or supplemented from time to time, including but not limited to CERCLA, the Hazardous
Substances Transportation Act (49 U.S.C. § 1802 et seq.), RCRA, the Water Pollution
Control Act (33 U.S.C. § 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300f
et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Solid Waste Disposal Act (42
U.S.C. § 6901 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.),
the Emergency Planning and Community Right -to -Know Act of 1986 (42 U.S.C. § 11001
et seq.), the Radon and Indoor Air Quality Research Act (42 U.S.C. § 7401 note, et
seq.), SARA, comparable state and local laws, and any and all rules and regulations
that are effective as of the date of this Project Agreement, or become effective after the
date of this Project Agreement under any and all of the aforementioned laws.
4. Covenants and Conditions. Northwestern covenants, warrants and
agrees that with respect to the activities contemplated under this Project Agreement
that: (i) no waste or damage shall be committed upon or to the Property; (ii) the
Property shall be used for only the purposes set forth herein; (iii) the Property shall not
be used for any unlawful purpose and no violations of Laws (hereinafter defined) or duly
constituted authority shall be committed thereon; (iv) Northwestern shall keep the
Property in a clean and sanitary condition; (v) Northwestern shall not do or permit to be
done anything upon the Property that may subject City to any liability for injury or
damage to person or property, or result in a violation of any Laws and (vi) the work
performed on or to the Property pursuant to this Project Agreement or the Construction
and Site Plan shall not adversely affect the City's ability to use the Property, except as
previously agreed to by the City and reflected in plan descriptions as previously
represented to the City.
5. Insurance and Indemnification. Northwestern, or its contractors or
subcontractors, shall procure and maintain for the duration of the Project Agreement,
insurance against claims for injuries to persons or damage to property which may arise
from or in connection with the performance of the Project by Northwestern, its agents,
subcontractors, representatives and employees. Northwestern must give to the City
Certificates of Insurance identifying City to be an Additional Insured for all Work done
pursuant to this Project Agreement before City staff recommends award of the contract
to City Council. Any limitations or modifications on the Certificate(s) of Insurance issued
to the City in compliance with this Section that conflict with the provisions of this section
shall have no force and effect to this Section.
Such insurance will not be canceled or reduced without sixty (60) days prior
written notice (hand delivered or registered mail) to City. Northwestern or its contractors
or subcontractors shall promptly forward new certificate(s) of insurance evidencing the
coverage(s) required herein upon annual renewal of the subject policies.
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. All insurance policies shall be written with insurance companies licensed or
authorized to do business in the State of Illinois and having a rating of not less than A-
XIII or better as published' within the prior twelve months, or if none, the most recent
edition of Best's Key Rating Guide, Property -Casualty Edition, or otherwise acceptable
to City, which approval shall not be unreasonably withheld.
Any deductibles or self -insured retentions must be declared to and approved by City.
5.1.2 Commercial general liability coverage at least as broad as Insurance
Services Office Commercial General Liability occurrence coverage ("occurrence" form
CG0001, Ed. 11/88) with a limit of not less than $2,000,000 per occurrence. If the
insurance includes a general aggregate limit, that limit shall apply separately to this
Project Agreement or it shall be at least twice the required per occurrence limit.
Deductibles shall be commensurate with industry practice.
Northwestern understands that the acceptance of Certificates of Insurance, policies,
and any other documents by the City in no way releases the Contractor and its
subcontractors from the requirements set forth herein.
5.1.3 Northwestern's, or contractor's or subcontractors', insurance and any
insurance provided in compliance with these specifications shall be primary with respect
to any insurance or self-insurance programs covering the City, its City Council and any
officer, agent or employee of City.
In the event Northwestern, or contractor or subcontractor, fails to purchase or procure
insurance as required above, the parties expressly agree that Northwestern shall be in
default under this Agreement, and that the City may recover all losses, attorney's fees
and costs expended in pursuing a remedy, or reimbursement, at law or in equity,
against Northwestern.
5.1.4 All liability coverage required above shall name the City, its City Council
and every officer, agent and employee of the City as an additional insured.
5.1.5 Where available, the insurer shall agree to waive all rights of subrogation
against the City, its City Council and every officer, agent and employee of City.
In the event any insurance required to be maintained herein becomes unavailable or is
not available on commercially reasonable terms, Northwestern shall maintain or shall
cause to be maintained the best that is available on commercially reasonable terms as
agreed to by the City in writing.
5.2 Indemnity
Northwestern shall defend, indemnify and hold harmless City and its officers,
elected and appointed officials, agents, and employees from any and all liability, losses,
or damages ("Losses") as a result of claims, demands, suits, actions, or proceedings of
4
any kind or nature, including without limitation costs, and fees, including attorney's fees,
judgments or settlements, resulting from or arising out of any negligent or willful act or
omission on the part of the Northwestern or Northwestern's subcontractors, employees,
agents or subcontractors during the performance of this Agreement. Such
indemnification shall not be limited by reason of the enumeration of any insurance
coverage herein provided. This provision shall survive completion, expiration, or
termination of this Project Agreement.
Northwestern agrees to cooperate in the event any litigation is brought against
the City by any party seeking to enjoin, restrain, or stop the Work contemplated by this
Agreement. Nothing contained herein shall be construed as prohibiting City, or its
officers, agents, or employees, from defending through the selection and use of their
own agents, attorneys, and experts, any claims, actions or suits brought against them.
Northwestern shall be liable for the costs, fees, and expenses incurred in the defense of
any such claims, actions, or suits. Nothing herein shall be construed as a limitation or
waiver of defenses available to City and employees and agents, including without
limitation the Illinois Local Governmental and Governmental Employees Tort Immunity
Act, 745 ILCS 10/1-101 et seq.
At the City Corporation Counsel's option, Northwestern must defend all suits
brought upon all such Losses and must pay all costs and expenses incidental to them,
but the City has the right, at its option, to participate, at its own cost, in the defense of
any suit, without relieving Northwestern of any of its obligations under this Project
Agreement. Any settlement of any claim or suit related to activities conducted under this
Project by Northwestern must be made only with the prior written consent of the City
Corporation Counsel, if the settlement requires any action on the part of the City.
To the greatest extent permissible by law, Northwestern waives any limits to the
amount of its obligations to indemnify, defend, or contribute to any sums due under any
Losses, including any claim by any employee of Northwestern that may be subject to
the Illinois Workers Compensation Act, 820 ILCS 305/1 et seq. or any other related law
or judicial decision, including without limitation, Kotecki v. Cyclops Welding Corporation,
146 III. 2d 155 (1991). The City, however, does not waive any limitations it may have on
its liability under the Illinois Workers Compensation Act, the Illinois Pension Code or any
other statute. All provisions of this section shall survive completion, expiration, or
termination of this Agreement.
6. Compliance with Laws. Northwestern, at its cost and expense, shall be
responsible for obtaining any and all permits, leases and other governmental approvals,
leases, consents and authorizations which may be required for the use of the Property
and exercise of its rights pursuant to this Project Agreement. Northwestern shall at all
times comply with all applicable legal or governmental statutes, laws, codes, orders,
requirements, regulations, ordinances and rules (collectively, "Laws").
7. Default. It shall be considered a "Default" under this Project Agreement
if Northwestern fails to substantially comply with any provision of this Project Agreement
5
and does not cure such failure within 30 days after notice, except where the default
cannot reasonably be cured in 30 days, in which case if Northwestern has begun and
continues efforts to remedy the default as soon as practicable, then such additional time
shall be given to remedy the default. In the event of a Default, the City may terminate
this Project Agreement by written notice to Northwestern. Such termination right shall
be in addition to all rights and remedies available to the City at law or in equity.
8. Third Party Beneficiaries; No Effect on Other Riqhts of the Parties. This
Project Agreement is not intended to and in no way confers any rights upon third
parties. This Project Agreement is not intended to and in no way confers any rights of
access or use by the Parties, or any other third party, to either Party's property except
as specifically described herein.
9. Attorneys' Fees, Jurisdiction for Disputes, and Governinq Law. Should a
party incur costs, charges and expenses, including court costs and attorneys' fees, to
enforce rights or obligations under this Project Agreement, then such costs, charges,
and expenses shall be recoverable from the other party. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State of
Illinois, excluding its choice of law rules. In the event of a dispute hereunder, the parties
agree to submit to the exclusive jurisdiction of the state courts of, and federal courts
sitting in, Cook County, Illinois.
10. Notices. Any notice, demand, request or other communication which
any party may desire or may be required to give to any other party hereunder shall be
given in writing at the addresses set forth below by any of the following means: (a)
personal service; (b) electronic communication, by facsimile together with confirmation
of transmission; (c) overnight courier; or (d) registered or certified United States mail,
postage prepaid, return receipt requested.
If to Grantee: Northwestern University
Attn' Executive Vice President
633 Clark Street
Evanston, Illinois 60208
With a copy to: Northwestern University
Attn: Office of General Counsel
633 Clark Street
Evanston, Illinois 60208
If to the Grantor: City of Evanston
Attn: City Manager
2100 Ridge Avenue
Evanston, Illinois 60201
With a copy to: City of Evanston Law Department
Attn: Corporation Counsel
2100 Ridge Avenue
A
Evanston, IL 60201
11, Entire Aqreement. This Project Agreement shall constitute the entire
contract between the parties and shall supersede any and all prior agreements between
the parties hereto with respect to the granting use of the Property to Northwestern. No
modification, waiver or amendment of this Lease Agreement or any provision hereof
shall be valid unless the same is in writing, and signed by both parties hereto.
12. Counterparts. This Project Agreement may be executed in any one or
more counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one Project Agreement.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Project
Agreement as of the day and year first above written.
NORTHWESTERN
NORTHWESTERN UNIVERSITY, an
Illinois corporation
By:
Name:
Title:
CITY:
CITY OF EVANSTON, a municipal
corporation in the State of Illinois
By:
Name:
Title:
EXHIBIT 1
Temporary Easement Area
2015 ALLEY RECONSTRUCTION
NORTHWESTERN UNIVERSITY
CITY OF EVANSTON, ILLINOIS
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TITLE SHEET
2015 ALLEY RECONSTRUCTION
NORTHWESTERN UNIVERSITY
CITY OF EVANSTON, ILLINOIS
SHEET INDEX
1. TITLE SHEET
2. SUMMARY OF QUANTITIES
3. ALLEY IMPROVEMENTS
4. ALLEY IMPROVEMENTS
S. GENERAL NOTES
6, DETAILS
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