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HomeMy WebLinkAbout125-R-21 Authorizing the CM to Negotiate and Execute a 25 yr Easement Agrmt for certain storm sewer infra. located along McDaniel Ave btw Main & Dempster Streets & a 30-in dia. relief sewer water outfall into the NSC at Greenleaf St in the COE w MWRD11 /08/2021 125-R-21 A RESOLUTION Authorizing the City Manager to Negotiate and Execute A Twenty-five Year Easement Agreement for certain storm sewer infrastructure located along McDaniel Avenue between Main and Dempster Streets in the City of Evanston with the Metropolitan Water Reclamation District of Greater Chicago WHEREAS, the City of Evanston (the "City") desires a 25-year, non- exclusive easement to construct, reconstruct, operate, maintain, repair, and remove certain storm sewer infrastructure located along McDaniel Avenue between Main and Dempster Streets in Evanston, Illinois, known as North Shore Channel Parcel 4.01, as legally described and depicted in the plat of easement attached hereto and made a part hereof as Exhibit A. Said premises is hereinafter referred to as the "Easement Premises" and generally depicted in the aerial photograph attached hereto and made a part hereof as Exhibit B; and WHEREAS, the City has an existing easement for said storm sewer infrastructure that commenced April 6, 1997 and expires on April 5, 2022; and WHEREAS, the Metropolitan Water Reclamation District of Greater Chicago (the "District") owns and has jurisdiction over the Easement Premises; and WHEREAS, the District is willing to grant to the City the easement; and Page 3 of 30 49-R-21 WHEREAS, the City Council finds that entering into an easement agreement with the District to be in the best interests of the City of Evanston and its residents. NOW BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EVANSTON, COOK COUNTY, ILLINOIS: SECTION 1: The City Manager is hereby authorized and directed to sign an Easement Agreement (the "Agreement") by and between the City ("Grantee") and the District, for the District to grant a twenty-five (25) year easement to construct, reconstruct, operate, maintain, repair, and remove certain storm sewer infrastructure located along McDaniel Avenue between Main and Dempster Streets in Evanston, Illinois, known as North Shore Channel Parcel 4.01. The Agreement is attached hereto as Exhibit 1 and incorporated herein by reference. SECTION 2: The City Manager is hereby authorized and directed to negotiate any additional conditions of said Agreement that she deems to be in the best interests of the City. SECTION 3: This resolution shall be in full force and effect from and after its passage and approval, in the manner provided by law. —2— Page 4 of 30 49-R-21 Attest: Stephanie Mendoza, City Clerk Adopted: November 22 12021 hanzd vdz-�j Daniel Biss, Mayor Approved as to form: Nicholas E. Cummings, Corporation Counsel EXHIBIT 1 EASEMENT AGREEMENT 19C Page 5 of 30 DOCUMENT PREPARED BY (AND AFTER RECORDING RETURN TO): Metropolitan Water Reclamation District Of Greater Chicago Law Department/Real Estate Division 100 E. Erie St. Chicago, IL 60611 Attn: Brendan 1. Dailey, Principal Attorney P.I. N.s: 10-23-206-015-0000 10-23-206-007-0000 10-23-206-010-0000 STM : MTC: BJ D This space reserved for recorder's use only. EASEMENT AGREEMENT (Annual Increase -En vironmental) REV. 8-2-21 THIS AGREEMENT is made and entered into this 21st day of October, 2021, by and between the METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, a body corporate and politic organized and existing under the laws of the State of Illinois, hereinafter called the "District", and the City of Evanston, hereinaf- ter called the "Grantee." WHEREAS, Grantee desires a 25-year, non-exclusive easement to construct, reconstruct, operate, maintain, repair, and remove certain storm sewer infrastruc- ture located along McDaniel Avenue between Main and Dempster Streets in Evans- ton, Illinois, known as North Shore Channel Parcel 4.01, as legally described and depicted in the plat of easement attached hereto and made a part hereof as Exhibit A. Said premises is hereinafter referred to as the ""Easement Premises" and general- ly depicted in the aerial photograph attached hereto and made a part hereof as Ex- hibit B; and WHEREAS, Grantee has an existing easement for said storm sewer infrastruc- ture that commenced April 6, 1997 and expires on April 5, 2022; and WHEREAS, the District is willing to grant to Grantee the easement aforesaid upon the conditions hereinafter set forth. Page 6 of 30 NOW, THEREFORE, for and in consideration of the representations, covenants, conditions, undertakings, and agreements herein made, the parties hereto agree as follows: ARTICLE ONE 1.01 The District hereby grants unto Grantee a non-exclusive easement, right, privilege and authority for 25 years commencing on April 6, 2022, and termi- nating on April 5, 2047, for the sole and exclusive purpose of constructing, recon- structing, operating, maintaining, repairing, replacing, and removing 1) a roadway located on a 15ft-wide strip of land westerly of McDaniel Avenue (approximately 38,505 sq. ft.); 2) a storm sewer within an 18ft-wide strip of land along McDaniel Avenue (approximately 46,206 sq. ft.); and a 30-inch diameter sewer outfall into the North Shore Channel within a 10ft-wide strip of land at Greenleaf Street extended (approximately 2,864 sq. ft.), hereinafter for convenience sometimes called "'Im- provements and Facilities", on the Easement Premises. 1.02 The District reserves the right of access to and use of the surface of the Easement Premises. 1.03 Grantee covenants and agrees in consideration of the grant of said easement to pay to the District a nominal fee in the amount of TEN AND NO/100 DOLLARS ($10.00), which is payable contemporaneously with Grantee's execution and delivery hereof. 1.04 Intentionally omitted. 1.05 In addition to the aforesaid, Grantee shall also pay, when due, all real estate taxes and assessments that may be levied, charged or imposed upon or against the Easement Premises described in Exhibit A (if any) and submit to the Dis- trict evidence of such payment within 30 days thereafter. The Parties anticipate that no taxes will be levied as both entities are tax exempt. ARTICLE TWO 2.01 The construction and installation of the Improvements and Facilities of Grantee on the Easement Premises shall be in accordance with plans and specifica- tions therefor prepared at Grantee's expense and supplied to the District by Grant- ee. No work shall commence until said plans and specifications have been approved in writing by the Executive Director of the District or his designee. 2.02 The construction and installation of the Improvements and Facilities by Grantee on the Easement Premises shall be done to the satisfaction of the Executive Director of the District. 2.03 Grantee shall construct, install, operate, maintain and remove the "Im- provements and Facilities", in a good and workmanlike manner at its sole cost, risk and expense. Page 7 of 30 2.04 Grantee shall compensate the District for any additional costs that the District may sustain in any future construction of sewers, reservoirs or any other surface or underground structures caused by the presence of the Improvements and Facilities of Grantee on the Easement Premises. 2.05 Grantee shall relocate or remove the Improvements and Facilities ex- isting or constructed upon the Easement Premises at no cost to the District: A. In the event that the subject premises are adjacent to any channel, waterway or reservoir, and said channel, waterway or reservoir is to be widened by the District or any other governmental agency; or B. In the event that any agency of government, having jurisdiction over said channel, waterway or reservoir requires the relocation or removal of said improvements; or C. In the event that said relocation or removal is required for the cor- porate purposes of the District. ARTICLE THREE 3.01 The District 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 District may grant further easements, assign, sell or lease the same to other parties subject to Grantee's right of use and a reasonable means of access to said Improvements and Facilities for construction, reconstruction, operation, mainte- nance, repair or removal thereof. 3.02 Grantee shall be solely responsible for and shall defend, indemnify, keep and save harmless the District, its Commissioners, officers, agents and em- ployees, against all injuries, deaths, losses, damages, claims, patent claims, liens, suits, liabilities, judgments, costs and expenses which may in any wise accrue, di- rectly or indirectly, against the District, its Commissioners, officers, agents or em- ployees, in consequence of the granting of this Easement, or which may in anyway result therefrom or from any work done hereunder, whether or not it shall be al- leged or determined that the act was caused through negligence or omission of Grantee or Grantee's contracts, subcontractors or their agents and Grantee shall, at Grantee's sole expense, appear, defend and pay all charges of Attorneys and all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against the District, its Commissioners, offic- ers, agents or employees, in any such action, Grantee shall, at Grantee's sole ex- pense, satisfy and discharge the same provided that Grantee shall first have been given prior notice of the suit in which judgment has been or shall be rendered, Grantee shall have been given an opportunity to defend the same and the District shall have given Grantee its full cooperation. Grantee expressly understands and agrees that any performance bond or insurance protection required by this Ease- M Page 8 of 30 ment, or otherwise provided by Grantee, shall in no way limit the responsibility to indemnify, keep and save harmless and defend the District as herein provided. 3.03 (a) Grantee, prior to entering upon the Easement Premises and using the same for the purposes for which this Easement is granted, shall procure, maintain and keep in force, at Grantee's expense, the following public liability and property damage insurance in which the District, its Commissioners, officers, agents and em- ployees, are a named insured as well as fire and extended coverage, and all-risk property insurance ("CLAIMS MADE" policies are unacceptable) in which the District is named loss payee from a company to be approved by the District, each afore - referenced policy shall have limits of not less than the following: COMPREHENSIVE GENERAL LIABILITY Combined Single Limit Bodily Injury Liability Property Damage Liability (Including Liability for Environmental Contamination of Adjacent Properties) in the amount of not less than $4,000,000.00 per Occurrence and ALL RISK PROPERTY INSURANCE (Including Coverage for Environmental Contamination of the Easement Premises) in the amount of not less than $4,000,000.00 per Occurrence Prior to entering upon the Easement Premises, and thereafter on the anniver- sary date of such policies, Grantee shall furnish to the District certificates of such insurance or other suitable evidence that such insurance coverage has been pro- cured and is maintained in full force and effect. Upon District's written request, Grantee shall provide District with copies of the actual insurance policies within ten (10) days of District'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 com- pany to the District. The provisions of this paragraph shall in no wise limit the liabil- ity of Grantee as set forth in the provisions of paragraph 3.02 above, or 3.03 (b) Grantee prior to entering upon the Easement Premises and using the same for the purposes for which this Easement is granted, shall prepare and trans- mit to the District an acknowledged statement that Grantee is a self -insurer, and that it undertakes and promises to insure the District, its Commissioners, officers, agents, servants and employees on account of risks and liabilities contemplated by the indemnity provisions of this Easement (paragraph 3.02 above); and that such statement is issued in lieu of policies of insurance or certificates of insurance in which the District, its Commissioners, officers, agents, servants and employees 4 Page 9 of 30 would be a named or additional insured, and that it has funds available to cover those liabilities in the respective amounts therefor, as set forth as follows: COMPREHENSIVE GENERAL LIABILITY Combined Single Limit Bodily Injury Liability Property Damage Liability (Including Liability for Environmental Contamination of Adjacent Properties) in the amount of not less than $4,000,000.00 per Occurrence and ALL RISK PROPERTY INSURANCE (Including Coverage for Environmental Contamination of the Easement Premises) in the amount of not less than $4,000,000.00 per Occurrence. This statement shall be signed by such officer or agent of Grantee having suf- ficient knowledge of the fiscal structure and financial status of Grantee, to make such a statement on behalf of Grantee and undertake to assume the financial risk on behalf of Grantee and will be subject to the approval of the District. ARTICLE FOUR 4.01 In the event of any default on the part of Grantee to faithfully keep and perform all singular the covenants, agreements and undertakings herein agreed by it to be kept and performed, or if said Improvements and Facilities are abandoned, the District shall give Grantee 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 Grantee, all rights and privileges granted herein by the District to Grantee may be terminated by the District; and upon such termina- tion, Grantee shall immediately vacate the Easement Premises and remove its Im- provements and Facilities from said real estate and restore the land to its condition prior to Grantee's entry thereon, all at the sole cost of Grantee. 4.02 Grantee shall have the right to give the District written notice to cease and terminate all rights and privileges under this agreement. In the event of such termination, Grantee 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 District. The expiration of said removal and restoration date shall in no event extend beyond the expiration date of this Easement. 4.03 Grantee understands and agrees that upon the expiration of this Ease- ment, Grantee shall have removed or caused to be removed its Improvements and Facilities and any other things which Grantee has erected or placed upon said Ease - Page 10 of 30 ment Premises. Grantee further agrees to yield up said Easement Premises in as good condition as when the same was entered upon by Grantee. Upon Grantee's failure to do so, the District may do so at the sole expense and cost of Grantee. 4.04 Intentionally omitted. 4.05 Grantee expressly understands and agrees that any insurance protec- tion or bond required by this Easement, or otherwise provided by Grantee, shall in no way limit the responsibility to defend, indemnify, keep and save harmless the District, as hereinabove provided. ARTICLE FIVE 5.01 Grantee also agrees that if the District incurs any additional expense for additional work which the District would not have had to incur if this Easement had not been executed, then, in that event, Grantee agrees to pay to the District such additional expense as determined by the Executive Director of the District, promptly upon rendition of bills therefor to Grantee. 5.02 Grantee covenants and agrees that it will reimburse the District, make all necessary repairs at its sole cost and expense and otherwise keep and save harmless the District from any loss, cost or expense arising out of the granting of this Easement suffered to property of the District by way of damage to or destruc- tion thereof, caused by any act or omission of Grantee, Grantee's agents, employ- ees, contractors, subcontractors, or anyone else acting through or on behalf of Grantee, its agents, employees, contractors, or subcontractors. 5.03 During the term of this Easement, the District shall not be liable to Grantee for any loss, cost or expense which Grantee 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 District now locat- ed or to be constructed on said Easement Premises, or on the land of the District ad- jacent to said Easement Premises. ARTICLE SIX 6.01 Detailed plans of subsequent construction or material alteration of Grantee's Improvements and Facilities shall first be submitted to the Executive Di- rector of the District for approval. Construction work shall not begin until such ap- proval is given to Grantee in writing. 6.02 Intentionally omitted. 6.03 Any notice herein provided to be given shall be deemed properly served if delivered in writing personally or mailed by registered or certified mail, postage prepaid, return receipt requested to the District in care of the Executive Director, 100 East Erie Street, Chicago, Illinois 60611, or to Grantee in care of: 6 Page ll of 30 City of Evanston 2100 Ridge Avenue Evanston, IL 60201 ATTN: Corporation Counsel (847) 866-2937 law@ citvofeva nston. ora or to such other persons or addresses as either party may from time to time desig- nate. ARTICLE SEVEN 7.01 Grantee, prior to entering upon the Easement Premises and using the same for the purposes for which this Easement is granted, shall, at Grantee's sole cost and expense, obtain all permits, consents and licenses which may be required under any and all statutes, laws, ordinances and regulations of the District, 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 District suitable evidence thereof. 7.02 Grantee covenants and agrees that it shall strictly comply with any and all statutes, laws, ordinances and regulations of the District, 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 Grantee, its agents, servants and employees, or of any contractor or subcontractor of Grantee, or their employees. 7.03 Grantee agrees to protect all existing District facilities within the Easement Premises, including, but not limited to, intercepting sewers, sludge lines, utility lines, dropshafts, connecting structures, siphons and manholes. 7.04 No blockage or restriction of flow in the water will be tolerated at any time. No construction or improvements of any kind can project into the waterway during construction or after permanent repairs are completed. 7.05 Grantee agrees to abide by and implement the District's Waterway Strategy Resolution as adopted by the District's Board of Commissioners, and at- tached hereto as Exhibit C and made a part hereof. 7.06 Tree Mitigation A. No alterations, construction or maintenance work upon the Easement Premises involving any material change in the location, installation or construction of facilities, or involving the removal of any trees on Dis- 7 Page 12 of 30 trict property, shall be performed by any person or municipality with- out having first obtained District approval. However, Grantee may con- duct routine trimming of trees, brush or other overgrown vegetation to the extent it interferes with the safety or proper functioning of any im- provements. B. If the proper maintenance and operation of facilities or improvements on the Easement Premises necessitates the removal of any trees on District property, Grantee shall give no less than 14-day written notice, exclusive of Saturdays, Sundays and holidays, of its intent to remove any trees on the Easement Premises, setting forth the number, location and species of trees to be removed. C. Grantee shall submit to the District a plan to replace any trees removed that provides for planting the same or greater number and quality of trees on the Easement Premises, or on alternate areas owned by the District as designated and approved in writing by the District. D. Grantee is responsible for obtaining any local permits necessary for tree removal. ARTICLE EIGHT 8.01 Grantee shall not voluntarily or by operation of law assign, or other- wise transfer or encumber all or any part of Grantees' interest in this Easement or in the Premises to any other governmental agency, individual, partnership, joint ven- ture, corporation, land trust or other entity without prior written consent of the Dis- trict. 8.02 A change in the control of Grantee shall constitute an assignment re- quiring the District's consent. The transfer of a cumulative basis of the twenty-five percent (25%) or more of the cumulative voting control of Grantee shall constitute a change in control for this purpose. 8.03 Grantee shall notify the District in writing not less than sixty (60) days prior to any proposed assignment or transfer of interest in this Easement. Grantee shall identify the name and address of the proposed assignee/transferee and deliver to the District original or certified copies of the proposed assignment, a recital of as- signee'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 District. The District shall not unreasonably withhold the consent to assignment or transfer. 8.04 Any attempted assignment or transfer of any type not in compliance with these sections shall be void and without force and effect. 8 Page 13 of 30 ARTICLE NINE GENERAL ENVIRONMENTAL PROVISIONS 9.01 DEFINITIONS 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 govern- ment agencies, departments, commissions, boards, bureaus, or in- strumentalities of the United States, state and political subdivi- sions thereof and all applicable judicial, administrative, and regulatory decrees, judgments, orders, notices or demands relat- ing 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 remedia- tion of the presence, creation, manufacture, pro- cessing, use, management, distribution, transporta- tion, treatment, storage, disposal, handling, or release of Hazardous Materials; (2) all requirements pertaining to the protection of employees or the public from exposure to Hazard- ous Materials or injuries or harm associated there- with; and (3) the Comprehensive Environmental Response, Com- pensation and Liability Act (Superfund or CERCLA) (42 U.S.C. Sec. 9601 et sea.), the Resource Conser- vation and Recovery Act (Solid Waste Disposal Act or RCRA) (42 U.S.C. Sec. 6901 et M.), Clean Air Act (42 U.S.C. Sec 7401 et sea.), the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. Sec, 1251 et sea.), the Emergency Planning and Community Right -to -Know Act (42 U.S.C. Sec. 11001 et sea.), the Toxic Substances Control Act (15 U.S.C. Sec, 2601 et sea.), the National Environ- mental Policy Act (42 U.S.C. Sec. 4321 et seMc .), the Rivers and Harbors Act of 1988 (33 U.S.C. Sec. 401 et seJc .), the Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et sec .), the Safe Drinking Water Act (42 U.S.C. Sec. 300 (f) et sea., the Illinois Envi- ronmental Protection Act (415 ILCS 5/1 et sea.) and all rules, regulations and guidance documents promulgated or published thereunder, Occupational 9 Page 14 of 30 Safety and Health Act (29 U.S.C. Sec. 651 et semc .) and all similar state, local and municipal laws relat- ing to public health, safety or the environment. B. "Hazardous Materials" shall mean: (1) any and all asbestos, natural gas, synthetic gas, liq- uefied natural gas, gasoline, diesel fuel, petroleum, petroleum products, petroleum hydrocarbons, pe- troleum by-products, petroleum derivatives, crude oil and any fraction of it, polychlorinated biphenyls (PCBs), trichloroethylene, ureaformaldehyde and radon gas; (2) any substance (whether solid, liquid or gaseous in nature), the presence of which (without regard to action level, concentration or quantity threshold requires investigation or remediation under any federal, state or local statute, regulation, ordi- nance, order, action, policy or common law; (3) any substance (whether solid, liquid or gaseous in nature) which is toxic, explosive, corrosive, flam- mable, infectious, radioactive, carcinogenic, muta- genic, 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 proper- ties could constitute trespass by or against Grantee or District; (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 sub- stances," "hazardous waste," "infectious waste," "medical waste," "extremely hazardous waste," "hazardous materials," "toxic chemicals," "toxic substances," "toxic waste," "toxic materials," "con- taminants," "pollutants," "carcinogens," "reproduc- 10 Page 15 of 30 tive toxicants," or any variantor similar designa- tions; (7) any other substance (whether solid, liquid or gase- ous in nature) which is now or hereafter regulated or controlled under any Environmental Laws (with- out regard to the action levels, concentrations or quantity thresholds specified 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 rea- sonable area of the adjacent premises owned by the District 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 assess- ment shall include, but not necessarily be limited to a historical review of the use (abuse) of the Ease- ment Premises, a review of the utilization and maintenance of hazardous materials on the Ease- ment Premises review of the Easement Premises' permit and enforcement history (by review of regu- latory agency records), a site reconnaissance and physical survey, inspection of 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 con- cerns, and preparation of a written report which discusses history, site land use, apparent regulatory compliance or lack thereof and which includes his- torical summary, proximity to and location of USTs, LUSTS, TSDFs, CERCLA site flood plain, maps, pho- tograph log references, conclusions and recom- mendations. D. "Phase II Environmental Assessment" shall mean: (1) an assessment of the Easement Premises and a reasonable area of the adjacent property owned by the District performed by an independent and duly qualified, licensed engineer with experience and expertise in conducting environmental assess- 11 Page 16 of 30 ments 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, extensive sampling of soils, ground wa- ters and structures, followed by laboratory analy- sis of these samples and interpretation of the re- sults, and preparation of a written report with boring logs, photograph logs, maps, investigative procedures, results, conclusions and recommenda- tions. 9.02 MANUFACTURE, USE, STORAGE, TRANSFER OR DISTRIBUTION OF HAZARDOUS MATERIALS UPON OR WITHIN THE EASEMENT Grantee, for itself, its heirs, executors, administrators, and successors cove- nants 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 Grantee 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 underground in- terconnecting conveyance facilities for any material or substance is not permitted without the advance written consent of the Executive Director of the District or his designee. 9.03 USE OF PREMISES (RESTRICTIONS - ENVIRONMENTAL) Grantee shall use the Easement Premises only for purposes expressly author- ized by Article 1.01 of this Easement Agreement. Grantee 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 to 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 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 sea. 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 Mate- rials from the Easement Premises within the meaning of, or otherwise bring the Easement Premises within the ambit of, the Comprehensive Environmental Re- sponse, Compensation and Liability Act of 1980, Section 9601 et sea. of Title 42 of the United States Code, or any similar state law or local ordinance or any other Envi- ronmental 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 12 Page 17 of 30 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. 9.04 CONDITION OF PROPERTY (ENVIRONMENTAL) A. In the event Grantee has used the Easement Premises under a prior easement agreement, Grantee warrants and represents that as a result of the easement grant, the Easement Premises and improvements thereon, including all personal property, have not been exposed to contamination by any Hazardous Materials, that there has not been thereon a release, discharge, or emis- sion, of any Hazardous Materials during its occupancy of the premises as defined by any Environmental Laws, and that the Easement Premises does not contain, or is not affected by un- derground storage tanks, landfills, land disposal sites, or dumps. B. In the event of a release, emission, discharge, or disposal of Hazardous Materials in, on, under, or about the Easement Prem- ises or the improvements thereon, Grantee will take all appro- priate response action, including any removal and remedial ac- tion after the execution date of this Easement Agreement. 9.05 INDEMNIFICATION (ENVIRONMENTAL) A. In consideration of the execution and delivery of this Easement Agreement, Grantee indemnifies, exonerates, and holds the Dis- trict and its officers, officials, Commissioners, employees, and agents ("Indemnified Parties") free and harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages and expenses incurred in connection with any of these (irrespective of whether any such Indemnified Party is a party to the action for which indemnification is here sought), including reasonable Attorney's fees, costs and dis- bursements incurred by the Indemnified Parties as a result of or arising out of or relating to (i) the imposition of any governmen- tal lien for the recovery of environmental cleanup costs expend- ed by reason of Grantee's activities, or (ii) any investigation, liti- gation, or proceeding related to any environmental response, audit, compliance, or (iii) the release or threatened release by Grantee, its subsidiaries, or its parent company of any Hazard- ous Materials or the presence of Hazardous Materials on or un- der the Easement Premises or any property to which Grantee, its parent company, or any of its subsidiaries has sent Hazardous Materials (including any losses, liabilities, damages, injuries, costs, expenses, or claims asserted or arising under any Envi- ronmental Law) regardless of whether caused by or within the control of Grantee, its parent company, or its subsidiaries pro- vided that, to the extent District is strictly liable under any Envi- 13 Page 18 of 30 ronmental Laws, Grantee's obligation to District under this in- demnity shall be without regard to fault on the part of Grantee with respect to the violation of law which results in liability to District. 9.06 ENVIRONMENTAL COVENANTS Grantee agrees to and covenants as follows: A. Grantee 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 on- ly in a safe, approved manner in accordance with all generally accepted industrial standards and all Environmental Laws. B. Grantee has been issued and is in compliance with all permits, certificates, approvals, licenses, and other authorizations relat- ing to environmental matters and necessary for its business, if any. C. Grantee, to the best of its knowledge, is not a potentially re- sponsible party with respect to any other facility receiving waste of Grantee from the Easement Premises under CERCLA or under any statute providing for financial responsibility of private par- ties for cleanup or other actions with respect to the release or threatened release of any Hazardous Materials. D. Grantee 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. Grantee 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. F. Grantee shall be responsible to install "plugs" of compacted im- permeable soil material at intervals of no greater than 100 feet between such plugs along utility trenches which have been backfilled with compacted granular materials in order to mini- mize cross -site and off -site environmental contaminant migra- tion. The spacing of these plugs should be based on the charac- teristics 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 14 Page 19 of 30 should a surface of 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 easement boundaries. G. The aforesaid representations and warranties shall survive the expiration or termination of the Easement Agreement. 9.07 COVENANTS (ENVIRONMENTAL) Grantee shall cause its parent company and each of its respective subsidiar- ies, contractors, subcontractors, employees and agents to: A. (1) Use and operate all of the Easement Premises in compliance with all applicable Environmental Laws, keep all material permits, approvals, certificates, and licenses in effect and remain in material com- pliance with them; (2) undertake reasonable and cost-effective measures to minimize any immediate environmental impact of any spill or leak of any Hazardous Materials; B. Notify District by telephone within two hours of the release of Hazardous Materials, including the extent to which the identity of the Hazardous Materials is known, the quantity thereof and the cause(s) of the release, and provide the District within 72 hours of the event with copies of all written notices by Grantee, its parent, and its subsidiaries that are reported to government regulators or received from the government regulators. C. Provide such information that the District may reasonably re- quest from time to time to determine compliance by Grantee with this Article. D. Grantee covenants and agrees to cooperate with the District in any inspection, assessment, monitoring, or remediation institut- ed by the District during the Easement Agreement. 9.08 COMPLIANCE (ENVIRONMENTAL) Grantee will cause its parent company and each of its subsidiaries, if any, to exercise due diligence to comply with all applicable treaties, laws, rules, regula- tions, and orders of any government authority. A. In the event of a spill, leak or release of hazardous waste carried by Grantee, its employees, or its agents Grantee shall conduct a Phase I Environmental Assessment, at its own expense, with re - is Page 20 of 30 spect to the Easement Premises and a reasonable area of the ad- jacent property owned by the District and submit the written re- port to the District within 90 days after the spill, leak or dis- charge. After review of each Phase I Environmental Assessment, District, at its sole discretion, may require Grantee, at Grantee's expense, to obtain a Phase II Environmental Assessment with respect to the premises used under the Easement Agreement. The written report of the Phase II Environmental Assessment shall be submitted to District within 120 days of District's re- quest for same. If the Phase II Assessment discloses the pres- ence of any Hazardous Materials contamination on the Easement Premises or adjacent premises, Grantee shall take immediate ac- tion to remediate the contamination and to restore the Ease- ment Premises described in Exhibit A and adjacent premises owned by the District to a clean and sanitary condition and to the extent required by any and all Environmental Laws. B. Capacitators, transformers, or other environmentally sensitive installations or improvements shall be removed by Grantee prior to the end of the Easement Agreement unless directed to the contrary in writing by the District. C. If any Environmental Assessment reveals, or District otherwise becomes aware of, the existence of any violation of any Envi- ronmental Laws that either Grantee is unwilling to remediate or that District is unwilling to accept, District shall have the right and option to terminate this Agreement and to declare it null and void. D. In the event Grantee should receive a Notice of Environmental Problem, Grantee shall promptly provide a copy to the District, and in no event later than seventy-two (72) hours from Grant- ee's and any tenant's receipt or submission thereof. "Notice of Environmental Problem" shall mean any notice, letter, citation, order, warning, complaint, inquiry, claim, or demand that: (i) Grantee has violated, or is about to violate, any Environmental Laws; (ii) there has been a release, or there is a threat of re- lease, of Hazardous Materials, on the Easement Premises, or any improvements thereon; (iii) Grantee will be liable, in whole or in part, for the costs of cleaning up, remediating, removing, or responding to a release of Hazardous Materials; (iv) any part of the Easement Premises or any improvements thereon is sub- ject to a lien in favor of any governmental entity for any liabil- ity, costs, or damages, under any Environmental Laws, arising from or costs incurred by such government entity in response to a release of Hazardous Material, Grantee shall promptly provide a copy to the District, and in no event later than seventy-two 16 Page 21 of 30 (72) hours from Grantee's and any tenant's receipt or submis- sion thereof. E. Not less than one (1) year prior to the expiration of the Ease- ment, Grantee shall have caused to be prepared and submitted to the District a written report of a site assessment in scope, form and substance, and prepared by an independent, compe- tent and qualified professional and engineer, registered in the State of Illinois, satisfactory to the District, and dated not more than eighteen (18) months prior to the expiration of the Easement, showing that: (1) Grantee has not caused the Easement Premises and any improvements thereon to materially deviate from any requirements of the Environmen- tal Laws, including any licenses, permits or certifi- cates required thereunder; (2) Grantee has not caused the Easement Premises and any improvements thereon to contain: (i) asbestos in any form; (ii) urea formaldehyde; (iii) items, arti- cles, containers, or equipment which contain fluid containing polychlorinated bi-phenyls (PCBs); or (iv) underground storage tanks which do not com- ply with Environmental Laws; (3) the engineer has identified, and then describes, any Hazardous Materials utilized, maintained or con- veyed on or within the property, the exposure to which is prohibited, limited, or regulated by any Environmental Laws; (4) if any Hazardous Materials were utilized, main- tained or conveyed on the Easement Premises, the engineer has conducted and submitted a Phase II Environmental Assessment of the Easement Prem- ises, which documents that the Easement Premises and improvements are free of contamination by Hazardous Materials; (5) the engineer has identified and then describes, the subject matter of any past, existing, or threatened investigation, inquiry, or proceeding concerning en- vironmental matters by any federal, state, county, regional or local authority, (the Authorities"), and describing any submission by Grantee concerning said environmental matter which has been given or 17 Page 22 of 30 should be given with regard to the Easement Prem- ises to the Authorities; and (6) the engineer includes copies of the submissions made pursuant to the requirements of Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), Section 11001 et seq. of Title 42 of the United States Code. 9.09 INSPECTION AND RIGHT OF INSPECTION (ENVIRONMENTAL) A. In the event Grantee gives notice pursuant to the provisions of Notice of Environmental Problem, within ninety (90) days Grant- ee shall submit to District a written report of a site assessment and environmental audit, in scope, form and substance, and pre- pared by an independent, competent and qualified, professional, registered engineer, satisfactory to the District, showing that the engineer made all appropriate inquiry consistent with good commercial and customary practice, such that consistent with generally accepted engineering practice and procedure, no evi- dence or indication came to light which would suggest there was a release of substances on the Site or Property which could ne- cessitate an environmental response action, and which demon- strates that the Site and Property complies with, and does not deviate from all applicable environmental statutes, laws, ordi- nances, rules, and regulations, including licenses, permits, or certificates required thereunder, and that Grantee is in compli- ance with, and has not deviated from, the representations and warranties previously set forth. B. District hereby expressly reserves to itself, its agents, Attorneys, employees, consultants, and contractors, an irrevocable license and authorization to enter upon and inspect the Easement Prem- ises and improvements thereon, and perform such tests, includ- ing without limitation, subsurface testing, soils, and groundwa- ter testing, and other tests which may physically invade the Easement Premises or improvements thereon as the District, in its sole discretion, determines is necessary to protect its inter- ests. ARTICLE TEN 10.01 All District facilities must be safeguarded during any construc- tion or maintenance activities on the Easement Premises. 10.02 The District shall have 24 hour -a -day, seven days a week unre- stricted access to all District structures, including access points, in the area. 18 Page 23 of 30 Evanston should contact Mr. Paul Sobanski at 708-588-4080 if they need Dis- trict facilities located. [REMAINDER OF PAGE LEFT BLANK — SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, on the day and year first above written, the parties hereto have caused these presents, including Riders and Exhibits, if any, to be duly executed, duly attested and their corporate seals to be hereunto affixed. METROPOLITAN WATER RECLAMATION DISTRICT OF GREATEF By: ATTEST: Jacqueline Torres, Clerk Marcelino Garcia Chairman of Committee on Finance (Grantee's Name) By: Title: ATTEST: By: Title: Page 24 of 30 19 STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) The undersigned, a Notary Public in and for said County, in the state afore- said, DOES HEREBY CERTIFY that (Signatory's Name) personally known to me to be the (Title) of a and (Grantee's Name) (Type of Entity) personally known to me to be the (Attestor's Name) of said entity, are the same persons (Title) whose names are subscribed to the foregoing instrument, and that they appeared before me this day in person and severally acknowledged that as such representa- tives of said entity, they duly executed said instrument on behalf of said entity and caused its corporate seal to be affixed thereto pursuant to authority given by the corporate authority of said entity, as its free and voluntary act and as the free and voluntary act and deed of said entity, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of A.D. 2019. My Commission expires: Notary Public 20 Page 25 of 30 STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) I, Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Marcelino Garcia personal- ly known to me to be the Chairman of the Committee on Finance of the Board of Commissioners of the Metropolitan Water Reclamation District of Greater Chicago, a body corporate and politic, and Jacqueline Torres, personally known to me to be the Clerk of said body corporate and politic, 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 Chairman of the Committee on Finance and such Clerk, they signed and delivered the said instru- ment as Chairman of the Committee on Finance of the Board of Commissioners and Clerk of said body corporate and politic, and caused the corporate seal of said body corporate and politic to be affixed thereto, pursuant to authority given by the Board of Commissioners of said body corporate and politic, as their free and voluntary act and as the free and voluntary act and deed of said body corporate and politic, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , A.D. 20 My Commission expires: Notary Public 21 Page 26 of 30 APPROVED AS TO FORM AND LEGALITY: Head Assistant Attorney General Counsel APPROVED: Executive Director RECEIVED: Fee Insurance Bond 22 Page 27 of 30 EXHIBIT A NORTH SHORE CHANNEL ammuwumm NO SCALE N M fib 10'SEWER EASEMENT a PER AGREEMENT p ili 0 1. ft. V•ZO'R.Z��1 �II 40' 116.66— 16 _`- 125.00'--_ •`66'" 264.98' 264.9B'—�-- �. z a Ld J W W it W J z .J i w Lli • 18'SEWER EASEMENT `t PER AGREEMENT _ 594.00' r _ PE�RADWAY A t T EUGNI� Ett • z U 594.00' N.E. CORNER U) SEC. 23-41-13-\ It W F- n- w O SHT. I OF 2 PLAT OFEASEMENTS A. SEWER EASEMENT , AN 18' SEWER EASEMENT, THE CENTERLINE OF WHICH IS PARALLEL TO AND 57 FT. WEST OF THE EAST RIGHT -OF --WAY LINE OF Mc DANIEL AVENUE, PROCEEDING FROM THE SOUTH RIGHT-OF-WAY LINE OF DEMPSTER STREET TO THE NORTH RIGHT -OF -WAY - LINE OF MAIN STREET, AND A 10 FT. SEWER EASEMENT THE CENTERLINE OF WHICH 1S DESCRIBED AS FOLLOWS I COMMENCING AT TH NORTHEAST CORNER OF SECTION 23, TOWNSHIP 41 NORTH, RANGE 13 EAST ( THE INTERSECTION OF THE CENTERLINES OF DEMPSTER STREET AND Mc DANIEL AVENUE) THENC� SOUTH ALONG THE EAST LINE OF SAID SECTION A DISTANCE OF 1323.72 FT. TO A POINT ..THE'INTERSECTIONS OF THE CENTERLINE$ OF GREENLEAF STREET AND Mc DANIEL AVENUE) THENCE SOUTH 78°00' WEST A DISTANCE OF 26.69 FT. TO THE PLACE OF BEGINNING. THENCE NORTH 5020' WEST A DISTANCE OF 23.41 FT. THENCE SOUTH 88037' WEST A DISTANCE OF 263 FT., MORE OR LESS, TO TIlE WATER EDGE OF THE NORTH SHORE CHANNEL. DESCRIBED EASEMENTS BEING IN THE NE 1 /4 OF SECTION 23, TOWNSHIP. 41 NORTH, RANGE, 13 EAST OF THE THIRD PRINCIPAL MERIDIAN , ALL IN THE CITY OF EVANSTON I COOK COUNTY, ILLINOIS . B . ROADWAY EASEMENT THE EAST FIFTEEN (15) FEET, EXCEPT THE SOUTH FORTY (401 FEET AND THE NORTH THIRTY 'THREE (33) FEET, OF THE NORTH EAST (N. E.) 1/4 OF SECTION 23, TOWNSHIP 41 N. RANGE 13.EAST OF THE THIRD PRINCIPAL MERIDIAN, COOK COUNTY, ILLINOIS. ... - - EXHIBIT A SHT 2 OF 2 �r it i — �I j 1 f JI f _ 1 Ar' ; • 1 1, '� • � • . • pr_ .off 4PM' T pqw PK i ..-.ter 1 arM k ft `. MMb qr 1 Oft -wide sewer IND, IN - - - ' 717 MIL 4 44 ir . jq .•; rr ,_ ilia' YYam` y At V. lop ILL 1�R .2 rj +. ^ # J, Jr;" '� • y 61. JW do • I.a . a rjpr 44