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HomeMy WebLinkAboutE 302 MWRD - 36-inch WM at 2222 Green Bay RoadFEG:CL:RM:nm EASEMENT AGREEMENT (Annual Increase -Environmental) REV. 2-27-02 THIS AGREEMENT, made and entered into this 7th day of February, 2002, by and between the METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, a municipal corporation organized and existing under the laws of the State of Illinois, hereinafter called the "District" and the CITY OF EVANSTON, a municipal corporation, hereinafter called the "Grantee." WHEREAS, the Grantee desires a 25-year non-exclusive easement for the con- struction, reconstruction, operation, maintenance, repair, and removal of a 36-inch di- ameter watermain located under District real estate, located at 2222 Green Bay Road in Evanston, Cook County, Illinois; and WHEREAS, the District is willing to grant to the Grantee We easement aforesaid, _ upon the conditions hereinafter set forth; 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 the Grantee a non-exclusive easement, right, privilege and authority for 25 years commencing on March 15, 2002, and termi- nating on March 14, 2027, for the sole and exclusive purpose to construct, reconstruct, operate, maintain, repair and remove a 36-inch diameter watermain located under and within 554.5' x 20' strip of District real estate located at 2222 Green Bay Road in Evanston, Cook County, Illinois, hereinafter for convenience sometimes called "Im- provements and Facilities" the real estate legally described and depicted in Exhibit A which is attached hereto and made a part hereof, hereinafter called the. "Easement Premises". 1.02 The District reserves the right of access to and use of the surface of the easement premises. 1.03 The Grantee covenants and agrees in consideration of the grant of said easement to pay to the District an initial annual easement fee in the amount of FIVE THOUSAND SIX HUNDRED SIX AND 66/100 DOLLARS ($5,606.66) the first annual install- ment of which is payable contemporaneously with Grantee's execution and delivery hereof. Thereafter, the annual easement fee of FIVE THOUSAND SIX HUNDRED SIX AND 66/100 DOLLARS ($5,606.66), plus adjustments set forth in Article 1.04.shall be due and 4 payable on or before March IS" of each year during the term of this Easement Agree- ment. 1.04 INTERIM ANNUAL EASEMENT FEE ADJUSTMENTS. On the anniversary of the effective date of this Easement, the annual fee to be paid by Grantee to District shall be adjusted by multiplying the initial annual fee or the fee in effect for the previous one- year period by the percentage of change in the Consumer Price Index for the Chicago Metropolitan Area, more specifically, the "Chicago All Items Consumer Price Index for All Urban Consumers (CPIU) on a 1982-1984 Base" which for the month of January, 1993 was 143.2, published by the United States Department of Labor, Bureau of Labor Statis- tics, as established for the month of January immediately preceding the term of this Easement (in the case of the first annual fee adjustment hereunder) and every month of January thereafter during the term hereof. In the event the CPIU is discontinued, the Board of Commissioners of the District shall, in its sole discretion select and utilize any other economic activity index of the United States government which reasonably re- flects economic activity in the Metropolitan Chicago Area. 1.05 lr addition to the aforesaid, the 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 and submit to the District evidence of such payment within 30 days thereafter. ARTICLE TWO 2.01 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. ARTICLE THREE 3.01 The construction and installation of the Improvements and Facilities of the 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 the Grantee. No work shall commence until said plans and specifications have been ap- proved in writing by the Chief Engineer of the District. 3.02 The construction and installation of the Improvements and Facilities by the Grantee on the Easement Premises shall be done to the satisfaction of the Chief Engi- neer of the District. 3.03 The 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 the Grantee on the Easement Premises. 2 J 3.04 The 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. I_l:1HAM • B ' 4.01 The District expressly retains -its interest in and rights to the use and occu- pation 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 the Grantee's right of use and a reasonable means of access to said Im- provements and Facilities for construction, reconstruction, operation, maintenance, re- pair or removal thereof. 4.02 The Grantee shall be solely responsible for and shall defend, in- demnify, keep and save harmless i the -District, - its. Commissioners, - off icers,-.agents=and employees, against all injuries, deaths, losses, damages, claims,- patent claims, Aiens, suits, liabilities, judgments, costs and -expenses which may in any -wise accrue,-_ directly or indirectly, against the -District, its Commissioners, officers,, agents --ov employees,- in consequence of the granting of this Easement, or which may in anywise result there- from 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 Grantee or Grantee's contracts, subcontractors or their agents and the 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, officers, agents or employees, in any such action, the Grantee shall, at the Grantee's sole expense, satisfy and dis-. charge 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 co- operation. Grantee expressly understands and agrees that any performance bond or insurance protection required by . this -Easement, or otherwise provided by Grantee, shall in no way limit the responsibility -to indemnify, keep and --save' harmless and de- fend the District as herein provided. 4.03 (a) The Grantee,.prior to.entering.upon said premises and=using the same for the purposes for which this Easement is;granted, shall°procure,',maintainvnd keep in 3 J force, at Grantee's expense, the following public liability and -property, damage insur- ance in which the District, 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 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 Easement Premises) in the amount of not less than $4,000,000.00 per Occurrence. Prior to entering upon said premises, and thereafter on the -anniversary date -of such policies, the Grantee shall furnish to the District certificates of such insurance or other suitable evidence that such insurance --coverage Chas -been -procured -.and, is maintained in full force and effect. Upon District's written request; Granteewsha11;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 in- surance shall become effective until the expiration of thirty (30) days after written no- tice thereof shall have been -given by the insurance company to the District. The provi- sions of this paragraph shall in no wise limit the liability -of the Grantee as set forth in the provisions of paragraph 4.02 above, or 4.03 (b) The Grantee prior to entering upon said premises and using the same for the purposes for which this Easement is granted, shall prepare and transmit to the Dis- trict an acknowledged statement that the Grantee is a self -insurer, and that it un- dertakes and promises to insure the District, its Commissioners, officers, agents, ser- vants and employees on account of risks and liabilities contemplated by the indemnity provisions of this Easement (Article Four, Paragraph 4.02) above; -and that such state- ment is issued in lieu of policies of insurance or -certificates of -insurance in which the District, its Commissioners, officers, agents, servants and employees would be a named or additional insured,q°and4hat1t-has funds available-to_cover-those�liabilities in the re- spective amounts therefor, asset forth as follows: 4:r-4 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 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 the Grantee having - sufficient knowledge of the fiscal structure and financial status of the Grantee, to make such a statement on behalf of the Grantee and undertake to assume the financial risk on behalf of the Grantee and will be subject to the approval of the, District. ARTICLE FIVE 5.01 In the event of any default .on -the part of -the 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 the 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 the, Grantee, all rights and privileges granted herein by the District to the Grantee may be terminated by the District; and upon such termination, the 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 the Grantee. 5.02 The 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 ter- mination, the 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 restorationdate=shall in -no -event extend be- yond the expiration date --of this Easement. �5 1 5.03 The Grantee understands and agrees that upon the expiration of this Easement, 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- ment Premises. Grantee further agrees to yield -up said Easement -,Premises in as good condition as when the same was entered upon by the Grantee. Upon Grantee's failure to do so, the District may do so at the sole expense and cost of Grantee. 5.04 The Grantee, prior to entering into possession,, shall, execute and lodge with the District its performance bond in the sum of FIVE THOUSAND AND NO/100 DOL- LARS ($5,000.00) conditioned upon the performance -of each and every condition of this Easement, such bond shall be in a form satisfactory to the Attorney for the District. The furnishing of the bond required in this Article shall in no wise limit or affect the liability of the Grantee or its insurance carrier under any other provision of this -Easement. 5.05 Grantee expressly understands and agrees that any insurance protection 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 SIX 6.01 The Grantee also agrees that if the District incurs any additional expense for additional work which the. -District would not have had to-incur=cif-this-Easement had not been executed, then, in that event, the -Grantee agrees to pay to the -District such additional expense -as determined by -the Chief Engineer.of=the-District,=-promptly-upon rendition of bills therefor to the Grantee. 6.02 The 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 harm- less the District from any loss, cost or expense arising out of the granting of this Ease- ment suffered to property of the -District -by way -of damage -to or destruction thereof, caused by any act or omission of the Grantee, Grantee's agents, employees, contrac- tors, subcontractors, or anyone else acting through or on behalf of Grantee, its agents, employees, contractors, or subcontractors. 6.03 During the term of this Easement, the District shall not be liable to the Grantee for any loss, cost or expense which the 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 located or to be constructed on said Easement Premises, or on the land of the District adjacent to said Easement Premises. ARTICLE SEVEN I, a 7.01 Detailed plans of subsequent construction -or material alteration of the Grantee's Improvements and Facilities shall first be submitted to the Chief Engineer ofthe District for approval. Construction work shall not begin until such approval is given to Grantee in writing. 7.02 On or before the commencement of the last five-year period of the lease- hold term hereunder, Grantee shall lodge with the Grantor its Environmental Site Resto- ration/Remediation Bond in the penal sum of $5,000.00, secured either by cash, irrevo- cable letter of credit or a commercial bond with surety to secure Grantee's performance of and compliance with the provisions and intent of Article 10 of this Lease. A cash payment securing the bond hereunder will be placed in an interest bearing account established by the Grantor specifically for this purpose. Any interest paid on account of said deposit shall be the property of and payable periodically to the Grantee. Such account shall be drawable only by Lessor upon its unilateral act. At no time shall the amount on deposit in said account be less than the penal sum of this Bond. Any commercial bond with surety shall be fully prepaid by the Grantee and documented as such at the time it is lodged with the Grantor. Said Bond shall be in a form approved by the Grantor and shall be maintained in full force and effect until such time as Grantee has demonstrated and documented to the reasonable satisfaction of Grantor (and Grantor has executed its written release thereof to the issuer), full compliance with all Environmental Laws, relating to Grantee's use or occupancy of the Demised Premises and its environmental restoration or remediation. This provision shall survive the termination/expiration _of -this Lease. 7.03 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=pre- paid, return receipt requested to the District in care -of the General Superintendent, 100 East Erie Street, Chicago, Illinois 60611; or -to the Grantee in care of: Evanston Water Utility City of Evanston 555 Lincoln Street Evanston, Illinois 60201 Attn: Richard J. Figurelli, Superintendent or to such other persons or addresses as either party may from time to time designate. ARTICLE EIGHT 8.01 The Grantee, prior to entering upon said premises and using the same for the purposes for which this Easement is granted, shall, at Grantee's sole cost and ex- pense, 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 Amer- ica, 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 J 8.02 The 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 affect this Permit, any work done hereunder or control or limit in any way the actions of Grantee, its agents, ser- vants and employees, or of any contractor or subcontractor of Grantee, or their em- ployees. 8.03 The 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. 8.04 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 dur- ing construction or after permanent repairs are completed. 8.05 Grantee agrees to abide by and implement the District's Waterway Strat- egy Resolution as adopted by the District's Board of Commissioners, and attached hereto as Exhibit B and made a part hereof. 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, ap- provals, plans, authorizations and similar items, of all government agencies, departments, commissions, boards, bureaus, or instru- mentalities of the United States, state and political subdivisions thereof and all applicable judicial, administrative, and regulatory decrees, judgments, orders, notices or demands relating to in- dustrial hygiene, and the protection of human health or safety from exposure to Hazardous Materials, or the protection of the environ- ment in any respect, including without limitation: (1) all requirements, including, without limitation, those pertaining to notification, warning, reporting, licens- ing, 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 tof-em- ployees_or the _public from exposure-4o Hazardous Materials or injuries or harm associated .-therewith; and (3) the Comprehensive Environmental Response, Com- pensation and Liability Act (Superfund or CERCLA) (42 U.S.C. Sec. 9601 et seq.), the Resource Conser- vation 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 sea.), the Federal Water Pollu- tion Control Act (Clean Water Act) (33 U.S.C. Sec, 1251 et seg.), the Emergency Planning and Commu- nity Right -to -Know Act (42 U.S.C. Sec. 11001 et seq.), the Toxic Substances Control Act (15 U.S.C. Sec, 2601 et sea.), 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 sea.), the Endan- gered Species Act of 1973 (16 U.S.C. Sec. 1531 et sea.), the Safe Drinking Water Act (42 U.S.C.Sec. 300 (f) et seq., the Illinois Environmental Protection Act (415 ILCS 5/1 et sea.) and all rules, regulations and guidance documents promulgated or pub- lished thereunder, Occupational Safety and Health Act (29 U.S.C. Sec. 651 et sea.) 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, 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 ra- don gas; (2) any substance (whether solid, liquid or gaseous in nature), the presence of which (without regard to action level, concentration or quantity threshold re- quires investigation or remediation under any fed- eral, state or local statute, regulation, ordinance, or- der, action, policy or common law; (3) any .substance .(whether solid, liqui6tor�­gaseous,=in nature) which is toxic, explosive, corrosive,--flam- 6 mable, infectious, radioactive, carcinogenic, mu- tagenic, 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 sub- ject 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 substan- ces," "hazardous waste," "infectious waste," "medi.- cal waste," "extremely hazardous waste," "hazardous materials," "toxic chemicals," "toxic substances," "toxic waste," "toxic -materials," "contaminants," "pollutants," "carcinogens," "reproductive toxicants," or any variantor similar designations; (7) any other substance (whether solid, liquid or gase- ous in nature) which is now or hereafter regulated of controlled under any Environmental Laws (without re- gard to the action levels, concentrations or quan- tity thresholds specified herein); or (8) any result of the mixing or addition of any of the sub- stances 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 grourydwaterof- the type -found on the -Easement Premises:;and,said-as sessment shall include, but not necessarily:: be lim- 40 1 iced 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 Prem- ises' permit and enforcement history (by review of regulatory agency records), a site reconnaissance and physical survey, inspection of Easement Prem- ises, site interviews and site history evaluations, - ba- sic 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 his- torical summary, proximity to and location of USTs, LUSTs, TSDFs, CERCLA site flood plain, maps, photo- graph log references, conclusions and recommen- dations. D. "Phase II Environmental Assessment" shall mean: (1) an assessment of the Easement Premises and a rea- sonable 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 assessments of real estate, bedrock and groundwater , of the type found on the Easement Premises and said --as- sessment _shall include, -but not necessarily -be lim- ited to, extensive sampling of soils, groundwaters and structures, followed by laboratory analysis of these samples and interpretation -of the results, and preparation of a written report with boring logs, photograph logs, maps, investigative procedures, results, conclusions and recommendations. 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 covenants that to the extent that any Hazardous Materials are manufactured, brought upon, placed, stored,, transferred, conveyed or distributed upon or within the Easement Prem- ises, 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 Envi- ronmental Laws. 11 J Construction or installation of new or reconstruction of any underground inter- connecting conveyance facilities for any material or substance is not permitted without the advance written consent of the Chief Engineer of the District. 9.03 USE OF PREMISES (RESTRICTIONS - ENVIRONMENTAL) Grantee shall use the Easement Premises only for purposes expressly authorized . 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 mate- rially 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 activi- ties 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 (1) 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 seg. 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 sea. 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 watevsource-or -system, or the dis- charge into the air of any any emissions, which would require a permit under the Fed- eral 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-isimilar 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 underground storage tanks, landfills, land disposal sites, or dumps. B. In the event of a release, emission, discharge, or disposal of Haz- ardous Materials in, on, under, or about the Easement Premises or the improvements thereon, Grantee will -take- all appropriate response action,- including any removal and remedial action after the execution date of this Easement Agreement. 42 9.05 INDEMNIFICATION (ENVIRONMENTAL) A. In consideration of the execution and delivery of this Ease- ment Agreement, the Grantee indemnifies, exonerates, and holds the District 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, li- abilities 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), in- cluding reasonable attorney's fees, costs and disbursements, in- curred by the Indemnified Parties as a result of or arising out of or relating to (1) the imposition of any governmental lien for the re- covery of environmental cleanup costs expended by reason of Grantee's activities, or (ii) any investigation, litigation, or proceed- ing related to any environmental response, audit, compliance, or other matter relating to the protection of the environment, or (iii) the release or threatened release by Grantee, its subsidiaries, or its parent company, of any Hazardous Materials, or the presence of Hazardous Materials on or under the Easement Premises, or any. property to which the Grantee, its parent company or any of its subsidiaries has sent Hazardous Materials, (including any -losses, li- abilities, damages, injuries, costs, expenses, or claims asserted or arising under any Environmental -.Law), regardless of whether caused by or within the control of the Grantee,=its,parent- company or its subsidiaries, provided that, to the extent District is strictly li- able under any Environmental Laws, Grantee's obligation -to District under this indemnity shall be without regard to fault on the part of the Grantee with respect to the violation of law which results in li- ability 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 only in a safe, approved manner, in accordance with all generally ac- cepted industrial standards and. all Environmental Laws. B. Grantee has been issued and is in compliance with all permits, certificates, approvals, licenses, .:and other authorizations relating to environmental matters and necessary for its businessJUany. 13 a C. Grantee, to the best of its knowledge, is not a potentially responsi- ble party with respect to any other facility receiving waste of the Grantee (whether or not from the Easement Premises) under CER- CLA 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. Grantee will take all reasonable steps to prevent a violation of any Environmental Laws. There will be no spill, discharge, leaks, emis- sion, injection, escape, dumping, or release of any toxic or Haz- ardous Materials by any persons on the area to be used and un- der the Easement Agreement. E. Grantee will not allow the installation of asbestos on the area de- scribed 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. The aforesaid representations and warranties shall survive the ex- piration or termination of the Easement Agreement. 9.07 COVENANTS (ENVIRONMENTAL) Grantee shall cause -its parent company and -each of its -respective subsidiaries, 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 compliance 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 Haz- ardous 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 District within 72 hours of the event, with copies of all written notices by Grantee, its parent and its subsidiaries -that .are reported 10 government regulators or re- ceived from ,the government regulators. AA J C. Provide such information that District may reasonably request from time to time to determine compliance by the Grantee with this Ar- ticle. D. Grantee covenants and agrees to cooperate with District in any in- spection, assessment, monitoring or remediation instituted by Dis- trict during the Easement Agreement. 9.08 COMPLIANCE (ENVIRONMENTAL) The 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, regulations, 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 respect to the Easement Premises and a reasonable area of the adjacent property owned by the District and submit the written report to the District within 90 days after the spill, leak or discharge. After review of each Phase I Environmental Assessment, District, at its sole dis- cretion, 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 request for same. IV=the ; Phase -11 As- sessment discloses the presence of any =Hazardous Materials con- tamination on the Easement Premises or adjacent premises, Grantee shall take immediate action to remediate the contami- nation and to restore the Easement Premises described in Exhibit A and adjacent premises owned by the District to a clean and sani- tary condition and to the extent required by any and all Environ- mental Laws. B. Capacitators, transformers, or other environmentally sensitive in- stallations 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 be- comes aware of, the existence of any violation of any Environ- mental 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_declare1t null and void. 115 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 Grantee's and any tenant's receipt or submission thereof. "Notice of Envi- ronmental Problem" shall mean any notice, letter, citation, order, warning, complaint, inquiry, claim, or demand that: (i) the Grantee has violated, or is about to violate, any Environmental Laws; (ii) there has been a release, or there is a threat of release, of Hazardous Materials, on the Easement Premises, or any im- provements thereon; (iii) the Grantee will be liable, in whole or in part, for the costs of cleaning up, remediating, removing, or re- sponding to a release of Hazardous Materials; (iv) any part of. the. Easement Premises or any improvements thereon -is subject to a lien in favor of any governmental entity for any liability, costs, or. damages, under any Environmental Laws, arising from or costs in- curred 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 (72) hours from, y Grantee's and any tenant's receipt or submission thereof. E. Not less than one (1) year prior to the expiration of the Easement, 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, competent and qualified professional and engineer, registered `in the State of=111i- nois, satisfactory to the District, and dated not more than eighteen (18) months prior to the expiration of the Easement, -showing that: (1) the Grantee has not caused the Easement Premises and any improvements thereon to materially devi- ate from any requirements of the Environmental Laws, including any licenses, permits or certificates required thereunder; (2) the Grantee has not caused the Easement Premises and any improvements thereon to contain: (i) asbes- tos in any form; (ii) urea formeldehyde; (iii) items, ar- ticles, containers, or equipment which contain fluid containing polychlorinated bi-phenyls (PCBs); or (iv) underground storage tanks which do not comply with Environmental Laws; (3) the engineer has identified, and then describes, any Hazardous Materials utilized, maintained-or°conveyed on or within the property, the exposure to f-which is ­16 prohibited, limited, or regulated by any Environ- mental Laws; (4) if any Hazardous Materials were utilized, maintained or conveyed on the Easement Premises, the engineer has conducted and submitted a Phase II Environ- mental Assessment of the Easement Premises, which documents .that the Easement Premises and im- provements 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 environmental matters by any federal, state, county, regional or local authority, (the Authorities"), and describing any submission by Grantee concerning said environmental matte' which has been given or 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 ofTitle lll...of the Superfund Amendments and Reauthorization Act of 1986, (SARA) Section-1-1001 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 No- tice of Environmental Problem, within ninety'(90) days Grantee shall submit to District a written report of a site assessment and environ- mental audit, in scope, form and substance, and prepared 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 evidence or indication came to light which would suggest there was a release of sub- stances on the Site or Property which could necessitate an envi- ronmental response action, and which demonstrates that the Site and Property complies with, and does not deviate from all appli- cable environmental statutes,' laws, ordinances, rules, and regula- tions, including licenses, permits,-or-certificates-,required=thereun- der, and that the Grantee is in -compliance :with, -:and=has not 17 deviated from, the representations and warranties previously set forth. B. District hereby expressly reserves to itself, its agents, attorneys,, em- ployees, consultants, and contractors, an irrevocable license and authorization to enter upon and inspect the Easement Premises and improvements thereon, and perform such tests, including without limitation, subsurface testing, soils, and groundwater testing, and other tests which may physically invade the Easement Premises or improvements thereon, as the District, in its sole discretion, deter- mines is necessary to protect its interests. 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. ATTEST: Mary C. West, Clerk FTMIA M_6 By: �7c Secretary t METROPOLITAN WATER RECLAMATION DISTRICT CITY OF EVANSTON Y Priest t C % _ 14 18 1 EASEMENT: , . . . The East 20.0 feet of that part of Block .1 and the North 41.0 feet of vacated Noyes Street lying South of the North Shore Channel, also the South 20.0 feet of the North 61.0 feet of -vacated Noyes Street lying East of the East top of bank of the North Shore Channel and lying West of the West line of Ashland Avenue, all in Payne's Addition to Evanston, being a subdivision of the Southwest Quarter of the Southeast Quarter of Section 12, Township 41 North, Range 13 East of the Third Principal Meridian in Cook County, Illinois. SCALE, 1" = 50 Ff. o�� -� "PERMALAWN" 4 ' • W ` N. USE OF VACATED \I\ / NOYES STREET � A---- -� CENTER LINE OF VACATED NOYES STREET / PROPERTY LINE I 81 l 20 —MENT '�z S. UNE OF VACATED i I NOYES STREET •.i l i7 1 1 1 STATE OF RtdN01S EVANSTON, NOVEMBER 1, .19 99 COUNTY OF COOKss. . He, B. H. Suhr)) & Company, Inc., do hereby certify that we have prepared this exhibit of easement from' existing plats and plans, for the purpose of granting an easement as shown hereon. 13,11. SUER & COMPANY, INC. SURVEYORS ` By, C RAYMOND R. HANSEN Illinois Professional Land Surveyor 12542 1p—z . __I8 e LU w I/ w I w � ' z o U N l / Y o ' w Z W z �o a Z U W W N I '•� � w Z 4 Q i J = �- -- 'Cn I � I • i J , 1 1 I -------- I r--66'-. . JB, H. SUHR & COMPANY, INC.1 � SURVEYORS ESTABLISHED 1911 840- CUSTER AVENUE, EVANSTON, ILLINOIS 60202 Evanston Tel. (847) 864-6315 Chicago Tel. (773) 273-5315 WEB PACE W".BHSUHR.COM H. R. SMITH - L� R. R. HANSEN s n. n n aadotn BOOK 99_ FACE 1048-A ORDER Nc 99-1048-A ORDERED DY• EVANSTON WATER UTILITY EVANSTON, NOVEMBER 1, 19 99 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 + / Q n I ' (name) personally known to me to be the l�/ /VI ` (title) of Ity 0 � S , a municipal corporation, and , personally known to me to be (name) of said municipal corporation and personally known to me to be same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such y _ title) G+c i tJ e r and x Ut L� J (title cont'co. (title) of said corporation, duly executed said instrument in 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. 61 GIVEN under my hand and Notarial Seal this 2l day of DiaAd A.D. 20.E Nota Publ' My Commission expires: "OFFICIALS EL" MARY R MORRIS Notary Puulic, State of Illinois My Commission Expires 05/21/05 STATE OF ILLINOIS) ) SS. COUNTY OF COOK ) I `® //tl r r / otary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Gloria Alitto Majewski, personally 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 municipal corporation, and Mary C. West, personally known to me to be the Clerk of said municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this. day in person and severally acknowledged that as such Chairman of .the Committee on Finance and such Clerk, they signed and delivered the said instrument as Chairman of the Committee on Finance of the Board of Commissioners and Clerk of said municipal corporation, and caused the corporate seal of said municipal corporation to be affixed thereto, pursuant to authority given by the Board of Commissioners of said munibipal 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. GIVEN under my hand and Notarial Seal this day of !i' i' A.D. 200), Y Notary Public My Commission expires: j APPROVED AS TO FORM AIPALITY: Head Assis ant Attorney Attorney APPROVED AS TO PLAT AND LEGAL DESCRIPTION: Engineer of Infrastructure Management r} Assistant Chief Encfiu%er of Infrastructure & Budget Management Division - I -F- --� Chief gin er CJ APPROVED: g General Superinten ant RECEIVED: Fee Insurance Bond I