HomeMy WebLinkAboutRESOLUTIONS-2011-016-R-113/15/2011
16-R-11
A RESOLUTION
Authorizing the City Manager to Execute an Easement Agreement
with Sunesys, LLC for the Installation of Dark Fiber Optic Cable
WHEREAS, the City and Sunesys, LLC, a Delaware limited liability company
("Sunesys") desire to enter into an easement agreement, the City granting an easement
for the installation of dark fiber optic cable (the "Easement Agreement") on public
property at Lyons Street, West to Asbury Avenue, North of Asbury Avenue to Simpson
Street, West on Simpson Street to Green Bay Road, Southeast on Green Bay Road to
Asbury Avenue, South on Asbury Avenue to Davis Street, all within the City of Evanston
(the "Easement Area"); and
WHEREAS, Sunesys desires a temporary construction easement and a twenty
(20) year exclusive easement for continued use of a three feet (3') wide strip of land
within the Easement Area, more fully detailed in the Easement Agreement attached as
Exhibit " 1 ".
WHEREAS, the easement will be for Sunesys to construct, reconstruct, operate,
maintain, and repair a dark fiber optic system ("the Dark Fiber System") and to serve the
central quadrant of the City of Evanston, Illinois businesses, on the real estate legally
described on Exhibit "A", attached to Exhibit 1 ".
WHEREAS, installation of the dark fiber optic system requires boring for
underground conduits with no above -ground lines except for fiber entry points into the
buildings; and
16-R-11
WHEREAS, the City is willing to grant to the Company the easement aforesaid
upon the conditions and representations set forth in the Easement Agreement.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That the City Manager is hereby authorized and directed to
sign, and the City Clerk is hereby authorized and directed to attest, on behalf of the City
of Evanston, an Easement Agreement for the term of twenty (20) years between the
City of Evanston and Sunesys, LLC, attached hereto as Exhibit 1 and incorporated
herein by reference, providing for the installation dark fiber optic cable in the City.
SECTION 2: That the City Manager or his designee is hereby authorized
and directed to negotiate any additional terms and conditions of the Easement
Agreement as may be determined to be in the best interests of the City.
SECTION 3: That Sunesys shall, at its cost, record a certified copy of this
resolution, including all Exhibits attached hereto, with the Cook County Recorder of
Deeds, before the City may issue any permits related to the construction or installation
of the utility cabinets on the Subject Property.
SECTION 4: That this resolution shall be in full force and effect from and
after the date of its passage and approval in the manner provided by law.
Eliz" eth B. Tisdahl, Mayor
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16-R-11
Attest:
Rodney --Greene, Ky Clerk
Adopted:�-MfJMA'1 AS , 2011
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16-R-11
EXHIBIT 1
EASEMENT AGREEMENT
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Doc#: 1109610016 Fee: $172.01
Eugene "Gene" Moore RHSP Fee:$10.Oc
Cook County Recorder of Deeds
it Date: 04/06/2011 11:37 AM Pg: 1 of 0
PAGE LEFT INTENTIONALLY BLANK
[FOR RECORDING PURPOSES ONLY]
Please return recorded Easement Agreement to:
City of Evanston
Attn: Law Department
2100 Ridge Avenue, Room 4400
Evanston, IL 60201
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EASEMENT AGREEMENT FOR DARK FIBER OPTIC CABLE ti
THIS EASEMENT AGREEMENT, made and entered into this 31st day of March, 2011, by and
between the CITY OF EVANSTON, a municipal corporation organized and existing under the laws of the
State of Illinois (the "City"); and SUNESYS, LLC a Delaware limited liability company (the "Company").
Hereinafter the City and the Company shall be referred to herein as the "Parties".
WHEREAS, the Company desires a twenty (20) year exclusive easement for continued use of a
three feet (T) wide strip of land, with a minimum eighteen (18) inches from the surface of the roadway at
Lyons Street, West to Asbury Avenue, North of Asbury Avenue to Simpson Street, West on Simpson Street
to Green Bay Road, Southeast on Green Bay Road to Asbury Avenue, South on Asbury Avenue to Davis
Street, all within the City of Evanston, and at the manhole areas marked on Exhibit "A", the easement area
will be three feet (T) all within the City of Evanston. The easement will be for Company to construct,
reconstruct, operate, maintain, and repair a dark fiber optic system ("the Dark Fiber System") and to serve
the central quadrant of the City of Evanston, Illinois businesses, on the real estate legally described and
depicted in Exhibit "A", which is attached hereto and incorporated herein by reference (the "Easement
Premises"); and
WHEREAS, installation of a fiber optic system generally requires boring for underground conduits
with no above -ground lines except for fiber entry points into the buildings; and
WHEREAS, the City is willing to grant to the Company the easement aforesaid upon the conditions
hereinafter set forth;
WHEREAS, the City and Company have authorized the execution of this Agreement as an exercise
of the City's home rule authority and the Company's corporate authority;
WHEREAS, the City Council enacted Resolution 16-R-11 on March 28, 2011 to authorize the City
Manager to sign this Agreement;
WHEREAS, the purposes, powers, rights, objectives, and responsibilities of the City and Company
under this Agreement are fully set forth herein.
NOW, THEREFORE, for and in consideration of the representations, covenants, conditions,
undertakings, and agreements herein made, the parties hereto agree as follows:
ARTICLE ONE: TERM OF EASEMENT
1.01 The City hereby grants unto the Company a permanent three foot (T) exclusive easement,
right, privilege, and authority for a term of twenty (20) years commencing on March 31, 2011, and
terminating on March 31, 2031, for the sole and exclusive purpose to construct, reconstruct, operate,
maintain, repair a dark fiber optic system in and under the City's public ways, to serve the central quadrant
of the City of Evanston, Illinois (the "Easement'), hereinafter the improvements to the Easement Premises
shall be referred to as the "Improvements and Facilities," and as aforementioned, legally described on
Exhibit "A".
1.02 The City hereby grants and conveys to Company, and Company's contractors,
subcontractors, agents, employees, and representatives, a non-exclusive temporary construction easement
("Temporary Construction Easement") to enter in, upon, under and across that portion of the Easement
Premises. All costs related to the construction of the Facilities and Improvements shall be sole
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
responsibilities of Company. The Temporary Construction Easement shall terminate on the date that
it Company completes construction of the Facilities and Improvements.
1.03 The Parties agree to cooperate fully to accomplish the Total Fiber Plan as depicted on
Exhibit "C" attached hereto and incorporated herein by reference. The Company agrees to cause the
general contractor to apply for, and the City agrees to issue when application is complete, right of way
permits for construction of the Total Fiber Plan.
1.04 The Company shall complete the work contemplated for the Dark Fiber System and the
Total Fiber Plan pursuant to permits issued per Title 7, Chapter 17 of the City Code. The Company
represents that it will follow all State of Illinois JULIE guidelines and the City is not responsible for ensuring
that the Company follows said guidelines.
1.05 The Company covenants and agrees in consideration of the grant of said easement to pay
the City an initial easement fee in the amount of $69,000.00 (Sixty -Nine Thousand and no/100 Dollars),
which is payable contemporaneously with Company's execution and delivery hereof. At the end of said
easement term, the Parties shall revisit the easement fee and negotiate any additional necessary
conditions in order to renew the easement agreement.
ARTICLE TWO: CONSTRUCTION OF FACILITIES AND IMPROVEMENTS
2.01 The construction and installation of the Improvements and Facilities of the Company on the
Easement Premises shall be in accordance with plans and specifications therefore prepared at Companys
expense and supplied to the City by the Company. No work shall commence until said plans and
specifications have been approved in writing by the Chief Engineer of the City.
2.02 The construction and installation of the Improvements and Facilities by the Company on the
Easement Premises shall be done to the satisfaction of the City Engineer. Grantee shall complete
construction of the Facilities and Improvements and shall restore the surface of Easement Premises to
the condition which existed prior to such construction (collectively the "Total Fiber Work") within six (6)
months of the date contemplated herein, June 2011, then the City will send a written notice (the "First
Notice"), subject to Force Majeure (as defined below). In the event Company has not completed the Total
Fiber Work by the end of such six (6) month period, City shall be permitted to send a written notice (the
"Second Notice") to Company stating that Company must complete such Total Fiber Work within forty-five
(45) days of receipt of the Second Notice. If Grantee has not completed the Total Fiber Work within such
forty-five (45) day period, Grantor, upon written demand to Grantee, shall be permitted to collect a per
diem fee from Grantee in the amount $150.00 for each day beyond such forty-five (45) period that
Grantee has not completed the Total Fiber Work. As used herein, the term "Force Majeure" shall mean
labor disputes, acts of God, moratoriums, war, riots, insurrections, civil commotion, a general inability to
obtain labor or materials or reasonable substitutes for either, fire, unusual delay in transportation, severe
and adverse weather conditions preventing performance of the Total Fiber Work, unavoidable casualties,
unforeseeable acts or failures to act by any governmental entity, quasi -governmental entity and/or utility
company or their respective agents or employees (including but not limited to the failure to install utility
improvements), unforeseeable governmental, quasi -governmental or utility company restrictions,
regulations or controls including the inability to obtain the necessary approvals necessary to complete,
among other things, the Total Fiber Work and delays caused by the breach of this Easement Agreement
or default under this Easement Agreement by City.
2.03 Company shall construct, install, operate, maintain, and remove the Improvements and
Facilities in a good and workmanlike manner at its sole cost, risk, and expense. The Company shall be
. solely responsible for providing maintenance support for the Facilities and Improvements, located in the
EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
Easement Premises. The Company shall be solely responsible for any cost and expenditure associated
with any and all costs associated in anyway with the Facilities and Improvements during the duration of this fi
Easement Agreement.
2.04 The Company shall relocate or remove the Improvements and Facilities existing or
constructed upon the Easement Premises at no cost to the City: In the event that said relocation or removal
is required for the corporate purposes of the City.
ARTICLE THREE: INDEMINIFICATION AND INSURANCE OBLIGATIONS
3.01 The City expressly retains its interest in and rights to the use and occupation of the
Easement Premises subject to the easement rights herein granted, and the City may grant further
easements, assign, sell, or lease the same to other parties subject to the Company's right of use and a
reasonable means of access to said Improvements and Facilities for construction, reconstruction, operation,
maintenance, repair or removal thereof.
3.02 The Company shall be solely responsible for and shall defend, indemnify, keep and save
harmless the City, its Commissioners, officers, agents, attorneys, employees, against all injuries, deaths,
losses, damages, claims, patent claims, liens, suits, liabilities, judgments, costs and expenses which may in
anywise accrue, directly or indirectly, against the City, its Commissioners, officers, attorneys, agents, and
employees, in consequence of the granting of this Easement, or which may in anywise result therefrom or
from any work done hereunder, whether or not it shall be alleged or determined that the act was caused
through negligence or omission of the Company or Company's contractors, subcontractors or their agents
and the Company shall, at Company's sole expense, appear, defend and pay all charges or attorneys and
all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment
shall be rendered against the City, its Commissioners, officers, attorneys, agents, or employees, in any such
action, the Company shall, at Company's sole expense, satisfy and discharge the same provided that
Company shall first have been given prior notice of the suit in which judgment has been or shall be
rendered, Company shall have been given an opportunity to defend the same and the City shall have given
Company its full cooperation. Company expressly understands and agrees that any performance bond or
insurance protection required by this Easement, or otherwise provided by Company, shall in no way limit the
responsibility to indemnify, keep and save harmless and defend the City as herein provided. Company
expressly understands and agrees that any insurance protection or bond required by this Easement, or
otherwise provided by Company, shall in no way limit the responsibility to defend, indemnify, keep and save
harmless the City, as hereinabove provided.
3.03 The Company, prior to entering upon said premises and using the same for the purposes
for which this Easement is granted, shall procure, maintain and keep in force, at Company's expense, the
following public liability and property damage insurance in which the City, its Commissioners, officers,
agents, and employees, are a named insured as well as fire and extended coverage, and all-risk property
insurance ("CLAIMS MADE" policies are unacceptable) in which the City is named as an additional insured
from a company to be approved by the City, each afore -referenced policy shall have limits of not less than
the following:
A. COMPREHENSIVE GENERAL LIABILITY:
Combined Single Limit Bodily Injury Liability, and
2. Property Damage Liability (including Liability for Environmental Contamination of
Adjacent Properties) in the amount of not less than Four Million and 00/100 Dollars ($4,000,000.00) per
Occurrence; and
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
it B. ALL RISK PROPERTY INSURANCE: including Coverage for Environmental Contamination
of Easement Premises, in the amount of not less than Four Million and 00/100 Dollars ($4,000,000.00) per
Occurrence.
i. Commercial General Liability insurance including coverage for bodily injury (including
death), operations of Grantee, and limits of liability coverage in the following amounts: (a) $1,000,000
general aggregate (other than products -completed operations); (b) $1,000,000 products -completed
operations aggregate limit; (c) $1,000,000 personal and advertising injury limit per claim; and (d)
$1,000,000 primary liability per claim limit. Grantor shall be listed as an additional insured under said
policies.
ii. Commercial auto liability insurance covering Grantee's owned, hired, borrowed and non -owned
vehicles, with limits of liability coverage in the amount of $1,000,000 primary combined bodily injury and
property damage liability per claim and aggregate limit.
iii. Workers compensation insurance with respect to all of Grantee's employees and officers,
regardless of whether such coverage or insurance is mandatory or merely elective under applicable law,
with limits of liability and coverage as required by applicable law.
iv. Employer's liability insurance with limits of liability coverage of $1,000,000 each accident,
$1,000,000 each employee -disease, and $1,000,000 policy limit -disease.
v. Excess or umbrella liability insurance in an amount of $2,000,000 per claim and aggregate.
3.04 Prior to entering upon said Easement Premises, and thereafter on the anniversary date of
such policies, the Company shall furnish to the City certificates of such insurance or other suitable evidence
that such insurance coverage has been procured and is maintained in full force and effect. Upon City's
written request, Company shall provide City with copies of the actual insurance policies within ten (10) days
of City's request for same. Such certificates and insurance policies shall clearly identify the premises and
shall provide that no change, modification in or cancellation of any insurance shall become effective until the
expiration of thirty (30) days after written notice thereof shall have been given by the insurance company to
the City. The provisions of this paragraph shall in no wise limit the liability of the Company as set forth in the
provisions of paragraph 4.02 below, or
ARTICLE FOUR: COVENANTS AND REPRESENTATIONS
4.01 The Company, prior to entering upon said premises and using the same for the purposes
for which this Easement is granted, shall, at Company's sole cost and expense, obtain all permits, consents,
and licenses which maybe required under any and all statutes, laws, ordinances, and regulations of the City,
the United States of America, the State of Illinois, the county, or the city, village, town, or municipality in
which the subject property is located, and furnish to the City suitable evidence thereof.
4.02 The Company represents and warrants that it will record this Easement Agreement and all
associated exhibits with the Cook County Recorder of Deeds within 30 days of execution.
4.032 The Company covenants and agrees that it shall strictly comply with any and all statutes,
laws, ordinances, and regulations of the City, the United States of America, the State of Illinois, the county,
and the city, village, town, or municipality in which the subject property is located, which in any manner
affects this Easement, any work done hereunder or control or limit in any way the actions of Company, its
agents, servants, and employees, or of any contractor or subcontractor of Company, or their employees.
The Parties acknowledge that if any conflict occurs between this Easement Agreement and any applicable
statutes, laws, ordinances, and regulations, that the more restrictive laws are applicable.
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
4.04 The Company agrees to protect all existing City facilities within the Easement Premises,
including, but not limited to, water system and appurtenances, sewer system and appurtenances, street light
and traffic signal systems and appurtenances and fiber optic system and appurtenances.
4.05 In the event of any default on the part of the Company to faithfully keep and perform all the
covenants, agreements, and undertakings herein agreed by it to be kept and performed, or if said
Improvements and Facilities are abandoned, the City shall give the Company notice in writing of such
default or abandonment; and if such default or abandonment shall not have been rectified within thirty (30)
days after receipt of such notice by the Company, all rights and privileges granted herein by the City to the
Company may be terminated by the City; and upon such termination, the Company shall immediately
vacate the Easement Premises and remove its Improvements and Facilities from said real estate and
restore the land to its condition prior to Company's entry thereon, all at the sole cost of the Company.
4.06 The Company shall have the right to give the City written notice to cease and terminate all
rights and privileges under this Agreement. In the event of such termination, the Company shall have a
period of one hundred twenty (120) days from and after such termination date to remove the Improvements
and Facilities and to restore the land to its original condition at no cost to the City. The expiration of said
removal and restoration date shall in no event extend beyond the expiration date of this Easement, including
any renewals thereof.
4.07 The Company understands and agrees that upon the expiration of this Easement, including
any renewals thereof, Company shall have removed or caused to be removed its Improvements and
Facilities and any other things which Company has erected or placed upon said Easement Premises.
Company further agrees to yield up said Easement Premises in as good condition as when the same was
entered upon by the Company. Upon Company s failure to do so, the City may do so at the sole expense
and cost of Company.
4.08 The Company also agrees that if the City incurs any additional expense for additional work
which the City would not have had to incur if this Easement had not been executed, then, in that event, the
Company agrees to pay to the City such additional expense as determined by the Chief Engineer of the
City, promptly upon rendition of bills therefore to the Company.
4.09 The Company covenants and agrees that it will reimburse the City, make all necessary
repairs at its sole cost and expense and otherwise keep and save harmless the City from any loss, cost, or
expense arising out of the granting of this Easement suffered to property of the City by way of damage to or
destruction thereof, caused by any act or omission of the Company, Companys agents, employees,
contractors, subcontractors, or anyone else acting through or on behalf of Company, its agents, employees,
contractors, or subcontractors.
4.10 During the term of this Easement, the City shall not be liable to the Company for any loss,
cost, or expense which the Company shall sustain by reason of any damage to its property or business
caused by or growing out of the construction, repair, reconstruction, maintenance, existence, operation, or
failure of any of the sewers, structures, channels, or other works or equipment of the City now located or to
be constructed on said Easement Premises, or on the land of the City adjacent to said Easement Premises,
provided, however, that the foregoing shall not release any contractor or subcontractor working for the City
from claims by the Company for any loss, cost or expense resulting from the negligence or willful
misconduct of such contractor or subcontractor.
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
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ARTICLE FIVE: NOTICE
5.01 Detailed plans of subsequent construction or material alteration of the Company's
Improvements and Facilities shall first be submitted to the Chief Engineer of the City for approval.
Construction work shall not begin until such approval is given to Company in writing.
5.02 Any notice herein provided to be given shall be deemed properly served if delivered in
writing personally or mailed by registered or certified US Postal Service Mail, postage prepaid, return receipt
requested to the City in care of the:
If to the City: City of Evanston
Attn: Director of Utilities
2100 Ridge Avenue
Evanston, IL 60201
With a Copy to: City of Evanston
Attn: Corporation Counsel
2100 Ridge Avenue, Suite 4400
Evanston, IL 60201
Fax: (847) 448-8093
If to the Company:
Sunesys LLC
Attn: Paul Bradshaw
185 Titus Avenue
Warrington, PA 18976
Fax: (267) 927-2099
or to such other persons or addresses as either party may from time to time designate.
ARTICLE SIX: ASSIGNMENT and LEASING
6.01 The Parties agree that the Easement granted hereunder shall inure to the benefit of
Company, its successors, and agents. The Company shall not voluntarily, or by operation of law, assign,
lease, sublease, or otherwise transfer or encumber all or any part of Company's interest in this Easement or
in the Premises to any other governmental agency, individual, partnership, joint venture, corporation, land
trust, or other entity without prior written consent of the City, provided, however, that the Company may
assign or transfer the Company's interest in this easement to a person controlling, controlled by or under
common control with the Company (an "Affiliate") upon notice to, but without the City's prior consent; further,
provided, that the Affiliate shall assume and agree to be bound by the terms and conditions of the Easement
and further that such assignment or transfer to an Affiliate shall not release the Company from its obligations
hereunder without a separate written release by the City.
6.02 Company shall notify the City in writing not less than sixty (60) days prior to any proposed
assignment or transfer of interest in this Easement. Company shall identify the name and address of the
proposed assignee/ transferee and deliver to the City original or certified copies of the proposed
assignment, a recital of assignee's personal and financial ability to comply with all the terms and conditions
of the Easement Agreement and any other information or documentation requested by the City. The City
shall not unreasonably withhold the consent to assignment or transfer.
6.03 Any attempted assignment or transfer of any type not in compliance with these sections
shall be void and without force and effect.
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
ARTICLE SEVEN: ENVIRONMENTAL PROVISIONS
A. "Environmental Laws" shall mean all present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, and similar
items of all government agencies, departments, commissions, boards, bureaus, or
instrumentalities of the United States, State of Illinois, and political subdivisions thereof and
all applicable judicial, administrative, and regulatory decrees, judgments, orders, notices or
demands relating to industrial hygiene, and the protection of human health or safety from
exposure to Hazardous Materials, or the protection of the environment in any respect,
including without limitation:
(1) all requirements, including, without limitation, those pertaining to notification,
warning, reporting, licensing, permitting, investigation, and remediation of the
presence, creation, manufacture, processing, use, management, distribution,
transportation, treatment, storage, disposal, handling, or release of Hazardous
Materials;
(2) all requirements pertaining to the protection of employees or the public from
exposure to Hazardous Materials or injuries or harm associated therewith; and
(3) the Comprehensive Environmental Response, Compensation and Liability Act
(Superfund or CERCLA) (42 U.S.C. Sec. 9601 et seq.), the Resource
Conservation and Recovery Act (Solid Waste Disposal Act or RCRA) (42 U.S.C.
Sec. 6901 et seq.), Clean Air Act (42 U.S.C. Sec. 7401 et seq.), the Federal Water
Pollution Control Act (Clean Water Act) (33 U.S.C. Sec. 1251 et seq.), the
Emergency Planning and Community Right -to -Know Act (42 U.S.C. Sec. 11001 et
seq.), the Toxic Substances Control Act (15 U.S.C. Sec. 2601 et seq.), the National
Environmental Policy Act (42 U.S.C. Sec. 4321 et seq.), the Rivers and Harbors
Act of 1988 (33 U.S.C. Sec. 401 et seq.), the Endangered Species Act of 1973
(16 U.S.C. Sec. 1531 et seq.), the Safe Drinking Water Act (42 U.S.C. Sec. 300(f)
et seq.), the Illinois Environmental Protection Act (415 ILCS 5/1 et seq.), and all
rules, regulations and guidance documents promulgated or published thereunder,
the Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.), and all
similar state, local, and municipal laws relating to public health, safety, or the
environment.
B. "Hazardous Materials" shall mean:
(1) any and all asbestos, natural gas, synthetic gas, liquefied natural gas,
gasoline, diesel fuel, petroleum, petroleum products, petroleum
hydrocarbons, petroleum by-products, petroleum derivatives, crude oil and
any fraction of it, polychlorinated biphenyls (PCBs), trichloroethylene, urea
formaldehyde, and radon gas;
(2) any substance (whether solid, liquid, or gaseous in nature), the presence of which
(without regard to the action levels, concentrations, or quantity thresholds specked
herein) requires investigation or remediation under any federal, state, or local
statute, regulation, ordinance, order, action, policy, or common law;
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
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(3) any substance (whether solid, liquid, or gaseous in nature), which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic,
or otherwise hazardous or dangerous;
(4) any substance (whether solid, liquid, or gaseous in nature), the presence of which
could cause or threaten to cause a nuisance upon the area subject to easement or
to adjacent properties or pose or threaten to pose a hazardous threat to the health
or safety of persons on or about such properties;
(5) any substance (whether solid, liquid, or gaseous in nature), the presence of which
on adjacent properties could constitute trespass by or against Company or City;
(6) any materials, waste, chemicals, and substances (whether solid, liquid, or
gaseous in nature) now or hereafter defined, listed, characterized, or referred
to in any Environmental Laws as "hazardous substances," "hazardous waste,"
"infectious waste," "medical waste," "extremely hazardous waste," "hazardous
materials," "toxic chemicals," "toxic substances," "toxic waste," "toxic materials,"
"contaminants," "pollutants," "carcinogens," "reproductive toxicants," or any
variant or similar designations;
(7) any other substance (whether solid, liquid, or gaseous in nature) which is now or
hereafter regulated or controlled under any Environmental Laws (without regard to
the action levels, concentrations, or quantity thresholds specked herein); or
(8) any result of the mixing or addition of any of the substances described in this
Subsection B with or to other materials.
C. "Phase I Environmental Assessment" shall mean:
(1) an assessment of the Easement Premises and a reasonable area of the adjacent
premises owned by the City performed by an independent and duly qualified,
licensed engineer with experience and expertise in conducting environmental
assessments of real estate, bedrock, and groundwater of the type found on the
Easement Premises and said assessment shall include, but not necessarily be
limited to, a historical review of the use (abuse) of the Easement Premises, a
review of the utilization and maintenance of Hazardous Materials on the Easement
Premises, review of the Easement Premises' permit and enforcement history (by
review of regulatory agency records), a site reconnaissance and physical survey,
inspection of the Easement Premises, site interviews and site history evaluations,
basic engineering analyses of the risks to human health and the environment of
any areas of identified concerns, and preparation of a written report which
discusses history, site land use, apparent regulatory compliance or lack thereof,
and which includes historical summary, proximity to and location of USTs, LUSTs,
TSDFs, CERCLA site flood plain, maps, photograph log references, conclusions,
and recommendations.
7.02 Company, for itself, its heirs, executors, administrators, and successors covenants that to
the extent that any Hazardous Materials are manufactured, brought upon, placed, stored, transferred,
conveyed, or distributed upon or within the Easement Premises, by Company or its subtenant or assigns, or
any of its agents, servants, employees, contractors, or subcontractors, same shall be done in strict
compliance with all Environmental Laws. Construction or installation of new or reconstruction of any
EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
underground interconnecting conveyance facilities for any material or substance is not permitted without the
advance written consent of the Chief Engineer of the City.
7.03 Company shall use the Easement Premises only for purposes expressly authorized by
Article 1.01 of this Easement Agreement. Company will not do or permit any act that may impair the value
of the Easement Premises or any part thereof or that could materially increase the dangers, or pose an
unreasonable risk of harm, to the health or safety of persons or third parties (on or off the Easement
Premises) arising from activities thereon, or that could cause or threaten to cause a public or private
nuisance on the Easement Premises, or use the Easement Premises in any manner (i) which could cause
the Easement Premises to become a hazardous waste treatment, storage, or disposal facility within the
meaning of, or otherwise bring the Easement Premises within the ambit of the Resource Conservation and
Recovery Act of 1976, Section 6901 et seq. of Title 42 of the United States Code, or any similar state law or
local ordinance, (ii) so as to cause a release or threat of release of Hazardous Materials from the Easement
Premises within the meaning of, or otherwise bring the Easement Premises within the ambit of, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, Section 9601 et seq. of
Title 42 of the United States Code, or any similar state law or local ordinance or any other Environmental
Law, or (iii) so as to cause a discharge of pollutants or effluents into any water source or system, or the
discharge into the air of any emissions which would require a permit under the Federal Water Pollution
Control Act, Section 1251 of Title 33 of the United States Code, or the Clean Air Act, Section 741 of Title 42
of the United States Code, or any similar state law or local ordinance.
` 7.04 In the event of a release, emission, discharge, or disposal of Hazardous Materials in, on,
under, or about the Easement Premises or the improvements thereon, Company will take all appropriate
response action, including any removal and remedial action after the execution date of this Easement
Agreement.
7.05 Company agrees to and covenants as follows:
A. Company covenants and agrees that, throughout the term of the Easement Agreement, all
Hazardous Materials which may be used upon the Easement Premises shall be used or
stored thereon only in a safe, approved manner in accordance with all generally accepted
industrial standards and all Environmental Laws.
B. Company has been issued and is in compliance with all permits, certificates, approvals,
licenses, and other authorizations relating to environmental matters and necessary for its
business, if any.
C. Company, to the best of its knowledge, is not a potentially responsible party with respect to
any other facility receiving waste of the Company (whether or not from the Easement
Premises) under CERCLA or under any statute providing for financial responsibility of
private parties for cleanup or other actions with respect to the release or threatened release
of any Hazardous Materials.
D. Company will take all reasonable steps to prevent a violation of any Environmental Laws.
There will be no spill, discharge, leaks, emission, injection, escape, dumping, or release of
any toxic or Hazardous Materials by any persons on the area to be used and under the
Easement Agreement.
E. Company will not allow the installation of asbestos on the area described in Exhibit A or any
item, article, container, or electrical equipment including but not limited to transformers,
capacitors, circuit breakers, reclosers, voltage regulators, switches, electro-magnets and
cable, containing PCBs.
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
F. Company shall be responsible to install "plugs" of compacted impermeable soil material at
intervals of no greater than one hundred feet (100') between such plugs along utility
trenches which have been backfilled with compacted granular materials in order to
minimize cross -site and off -site environmental contaminant migration. The spacing, of
these plugs should be based on the characteristics of the site, the configuration of the
trench or trenches, the characteristics (nature and extent) of the site environmental
contamination, and/or the potential for site contamination should a surface or subsurface
chemical release occur. Special emphasis should be placed on locating these plugs at all
utility trenches where they cross: other utility trenches, containment berms or walls,
property boundaries, and lease boundaries.
G. The aforesaid representations and warranties shall survive the expiration or termination of
the Easement Agreement.
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.01 The making, execution and deliveryof this Easement by the City have not been induced by
any representations, statements, warranties, or agreements other than those herein expressed.
8.02 This Agreement embodies the entire understanding of the Parties and there are no further
or other agreements or understandings, written or oral, in effect between the parties, their officers, agents,
representatives and employees, relating to the subject matter hereof.
8.03 The Parties agree the this Agreement shall be governed by and interpreted in
accordance with the laws of the State of Illinois and that venue for any disputes shall be Cook County,
Illinois.
8.04 This lease may be modified or amended only in writing signed by Lessor and Lessee. It
may not be amended or modified by oral agreements between the parties unless they are in writing duly
executed by Lessor and Lessee.
8.05 Time is of the essence.
[SIGNATURES ON FOLLOWING PAGES]
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
IN WITNESS WHEREOF, on the day and year first above written, the parties hereto have causes
these presents, including Riders and Exhibits, if any, to be duly executed, duly attested and their
corporate seals to be hereunto affixed.
ATTEST
Clerk !
A ST:
Title: Asst Z,-r-,km�
CITY OF EVANSTON
an Illinois munici al corporation,
By:
Zity ManageV
SUNESYS, LLC
a Delaw re limited liability company
By: �. __. a4-
Tittle: �Ire's • Lcc-
Approved as to form
W. Grant Farrar
Cororation Counsel
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
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STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
The undersigned, a Notary Public in and for said County, in the State aforesaid, DOES HEREBY
CERTIFY that Martin Lyons personally known to me to be the Assistant City Manager of the City of
Evanston, a municipal corporation, personally known to me to be me to be the same person whose name
is subscribed to in the foregoing instrument, appeared before me this day in person and severally
acknowledged that as such the Assistant City Manager of the City of Evanston, and duly executed said
instrument on behalf of said municipal corporation and caused its corporate seal to be affixed thereto
pursuant to authority given by the corporate authority of said municipal corporation, as its free and
voluntary act and as the free and voluntary act and deed of said municipal corporation, for the uses and
purposes therein set forth.
GIVEN under my hand and Notarial Seal this day of / I rL h A.D. 2011.
F_,v
Notary Public
My Commission Expires:
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OFFICIAL SEAL
ELLEN LEBOWICZ
NOTApY PUBLIC -STATE OF IL�I OIS
MY COMMISSION EXPIRES:01=4
, 2011
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EASEMENT AGREEMENT — DARK FIBER CABLE - 2011
COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF BUCKS )
I, (� (�
AI ){�,? � U 1�M.1nj Notary Public in and for said County, in the State aforesaid,
DO HEREBY CERTIFY that I (Al Vfn e tYl-Mil (name), personally known to me to be the
f Y iA -f (title) of Sunesys, LLC a Delaware limited liability company, and personally known to
me to be the same person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged they signed and delivered the said instrument as such and caused
the corporate seal of said municipal corporation, to be affixed thereto, pursuant to authority given by the
corporation, as their free and voluntary act and as the free and voluntary act and deed of said municipal
corporation, for the uses and purposes therein set forth.
l . �_j
GIVEN under my hand and Notarial Seal this day of " ��YC(1 &D. 2011.
I _
Notary Public U
My Commission Expires: �
2011 NOTARIAL SEAL
CORINNE J BISTLINE
Notary Public
WARRINGTON TWP, BUCKpS COUNTY
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my commission Expires
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
it APPROVED AS TO FORM: Approved as to form,
W. Grant Farrar, Corporation Counsel VJa Grant Farrar
Corporation Counsel
AP OVE
G
Paul hneider City ine r
David Stonebeck, Director of Utilities
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RECEIVED:
Fee
Insurance
Bond
EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
EXHIBIT "A" fi
LEGAL DESCRIPTION
That part of Leon Place, Asbury Avenue, Simpson Street and Green Bay Road Rights of Way
described as follows: A strip of land being 3 feet wide and lying 1.5 feet on each side of the
following centerline: Beginning at a point on the South line of Leon Place at a point 187.32 West
of the Westerly line of Ridge Avenue; thence North 00 degrees, 00 minutes, 00 seconds West,
for the purpose of this description and at right angles to the south line of said Leon Place, 7.5
feet; thence North 90 degrees, 00 minutes, 00 seconds West, along a line 7.5 feet North of and
parallel with the South line of Leon Place, 313.41 feet to a point of curve, said point of curve
being 64.08 feet East and 7.5 feet North of the intersection of the South line of Leon Place and
the West line of Asbury Avenue; thence Northwesterly along a curve having a radius of 89.56
feet and a chord bearing of North 56 degrees, 37 minutes, 39 seconds West an arc distance of
99.41 feet to a point of tangency being 61.52 feet Northwest and 12.88 feet Northeasterly of said
intersection of the South line of Leon Place and the West line of Asbury Avenue; thence North
23 degrees, 25 minutes, 58 seconds West, a distance of 136.56 feet to a point 11.25 feet North
and 14.21 feet East of the bend point in the West line of Asbury Avenue; thence North 00
degrees, 22 minutes, 40 seconds West, 120.47 feet to a point 13.79 feet East and 13.69 feet South
of the Southwest corner of Asbury Avenue and Simpson Street; thence North 22 degrees, 00
minutes, 47 seconds West, 3.21 feet to a point 12.59 feet East and 10.71 feet South of said
Southwest comer; thence North 01 degrees, 08 minutes, 18 seconds West, 71.32 feet to a point
11.31 feet East and 5.90 feet South of the Northwest corner of Asbury Avenue and Simpson
Street; thence South 87 degrees, 59 minutes, 38 seconds West, 29.81 feet to a point 18.59 feet
West and 5.66 feet South of said Northwest corner; thence South 84 degrees, 33 minutes, 46
seconds West, 76.33 feet to a point 9.61 feet South of the North line of Simpson Street; thence
South 88 degrees, 11 minutes, 21 seconds West, 209.21 feet to a point 7.91 feet West and 7.20
feet South of the Northeast corner of Wesley Avenue and Simpson Street; thence South 01
degrees, 48 minutes, 39 seconds East, 48.45 feet to a point 170.01 feet East and 10.36 feet North
of the Southeast corner of Simpson Street and Green Bay Road; thence South 83 degrees, 54
minutes, 15 seconds West, 57.51 feet to a point 112.61 feet East and 6.73 feet North of said
Southeast corner; thence South 88 degrees, 39 minutes, 16 seconds West, 118.65 feet to a point
9.00 feet North and 0.72 feet Southwesterly of said Southeast corner; thence South 74 degrees,
41 minutes, 00 seconds West, 5 9.3 0 feet to a point 3.00 feet Northeast and 6.35 feet Southeast of
the Southwest corner of Simpson Street and Green Bay Road; thence South 32 degrees, 15
minutes, 20 seconds East, along a line 3.00 Northeast of and parallel with the Westerly line of
Green Bay Road, 171.29 feet; thence South 26 degrees, 49 minutes, 32 seconds East, 468.17 feet
to a point 5.00 feet Northeast and 7.12 feet Northwest of the Northwest comer of Green Bay
Road and Foster Street; thence South 31 degrees, 21 minutes, 42 seconds East, 319.83 feet to a
point 4.00 feet Northeast of the Northwest corner of Green Bay Road and Asbury Avenue;
thence South 29 degrees, 56 minutes, 44 seconds East, 116.51 feet to a point 1.50 feet Southwest
of the Westerly line of Green Bay Road and 3.45 feet West of the East line of Asbury Avenue;
South 00 degrees, 34 minutes, 59 seconds West, 351.87 feet to a point 3.00 feet West and 10.21
feet North of the Northeast comer of Asbury Avenue and Emerson Street; thence South 08
degrees, 05 minutes, 02 seconds East, 88.90 feet to a point 15.00 feet West and 13.31 feet South Is
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EASEMENT AGREEMENT- DARK FIBER CABLE - 2011
of the Southeast corner of Asbury Avenue and Emerson Street; thence South 00 degrees, 00
minutes 00 seconds West, 133.50 feet; thence South 07 degrees, 11 minutes, 32 seconds West,
16.65 feet; thence South 00 degrees, 00 minutes, 00 seconds West, 326.78 feet; thence South 02
degrees, 00 minutes, 04 seconds West, 63.53 feet; thence South 00 degrees, 00 minutes, 00
seconds West, 144.58 feet to a point 14.72 feet West and 0.82 feet North of the Southeast corner
of Asbury Avenue and Lyons Street; thence South 34 degrees, 59 minutes, 53 seconds East, 4.35
feet; thence South 36 degrees, 19 minutes, 11 seconds West, 4.55 feet to a point 14.87 feet West
and 6.41 feet South of the Southeast corner of Asbury Avenue and Lyons Street; thence South 00
degrees, 17 minutes, 20 seconds West, 480.82 feet to a point 108.45 feet North and 14.24 feet
West of the Northeast corner of Asbury Avenue and Church Street; thence South 09 degrees, 55
minutes, 34 seconds East, 51.75 feet to a point 57.53 feet North and 5.00 feet West of the
Northeast corner of Asbury Avenue and Church Street; thence South 01 degrees, 16 minutes, 36
seconds East, 64.74 feet to a point 3.15 feet West and 7.19 feet South of Northeast corner of
Asbury Avenue and Church Street; thence South 10 degrees, 01 minutes, 39 seconds East, 3 3.8 8
feet to a point 25.53 feet North and 11.04 feet West of Southeast corner of Asbury Avenue and
Church Street; thence South 00 degrees, 16 minutes, 42 seconds West, 24.2 feet to a point 7.77
feet North and 11.00 feet West of Southeast corner of Asbury Avenue and Church Street, said
point to be referred to as point "A"; thence South 00 degrees, 23 minutes, 37 seconds West,
309.07 feet; thence South 89 degrees, 36 minutes, 23 seconds East, 11.16 feet to the east line of
Asbury Avenue and the point of terminus of the aforesaid centerline. ALSO that part of the Right
of Way of Church Street described as follows: A strip of land being 3 feet wide and lying 1.5 feet
on each side of the following centerline: Beginning at the aforesaid point "A" , being a point
7.77 feet North and 11.00 feet West of Southeast comer of Asbury Avenue and Church Street;
IF thence North 59 degrees 13 minutes 33 seconds East 12.32 feet; thence South 89 degrees 08
minutes 35 seconds East 20.66 feet; thence North 59 degrees 13 minutes 33 seconds East 9.25
feet; thence North 89 degrees 08 minutes 35 seconds East 52.42 feet; thence North 59 degrees 13
minutes 33 seconds East 18.16 feet to the point of terminus of the aforesaid centerline, all in
Sections 13 and 18, Township 41 North, Range 13, East of the Third Principal Meridian, in the
City of Evanston, Cook County, Illinois.
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EASEMENT AGREEMENT - DARK FIBER CABLE - 2011
EXHIBIT "B" Is
PLAT OF EASEMENT
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EASEMENT AGREEMENT -DARK FIBER CABLE - 2011
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CITY MANAGER AUTHORIZATION RESOLUTION FOR EASEMENT AGREEMENT
FOR DARK FIBER SYSTEM
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