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HomeMy WebLinkAboutResolution 27-R-25, Authorizing the City Manager to Execute an Easement Agreement with Northwestern University2/24/2025 27-R-25 A RESOLUTION Authorizing the City Manager to Execute an Easement Agreement with Northwestern University WHEREAS, Northwestern University (“Northwestern”) intends to construct, reconstruct, operate, maintain, repair and replace a storm sewer, outfall and related equipment and appurtenances (the “Project”); and WHEREAS, a portion of the Project will be under the City’s right -of-way, including as depicted in the Northwestern University Ryan Field – Chancellor Street Storm Sewer “Issued for Permit” plan set dated June 13, 2024; and WHEREAS, the City requests a non-exclusive seventy-five year easement for the Project to be located below the property, 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 the Agreement by and between the City and NU for a 75-year easement to allow Northwestern to construct, reconstruct, operate, maintain, repair and replace a storm sewer, outfall and related equipment and appurtenances. NU will pay the City $1,128, 309.23 in two payments over two years for the 75 year easement. The Agreement is attached hereto as Exhibit 1 and incorporated herein by reference. SECTION 2: The City Manager is hereby authorized and directed to Page 1 of 13 27-R-25 negotiate any additional conditions of said Agreement that he 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. _______________________________ Daniel Biss, Mayor Attest: ______________________________ Stephanie Mendoza, City Clerk Adopted: February 24, 2025 Approved as to form: _______________________________ Alexandra Ruggie, Corporation Counsel ~2~ Page 2 of 13 This document was prepared by: After recording mail to: EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (the “Agreement”) is made this __ day of ____________, 2025 by and between the City of Evanston, an Illinois municipal corporation (the “City”) and Northwestern University (“Northwestern”). Hereinafter, the City and Northwestern, collectively, shall be referred to as the “Parties.” RECITALS WHEREAS, Northwestern has requested permission from the City to install a storm sewer, outfall and related equipment and appurtenances (collectively, the "Storm Sewer") on, in, over and under the right-of-way of certain City property; and WHEREAS, the route of the Storm Sewer will be within the Easement Area outlined in Exhibit A, attached hereto and made a part hereof (the “Easement Area”); and WHEREAS, the City is willing to allow Northwestern to install the Storm Sewer on, in, over and under the City right-of-way under the terms and conditions of this Agreement; and WHEREAS, the City and Northwestern have authority to execute this Agreement as an exercise of the City’s home rule authority and Northwestern’s corporate authority; and WHEREAS, the City Council of the City of Evanston enacted Resolution __-R-__ on ___________ __, 2025 to authorize the City Manager to negotiate and execute this Agreement. NOW, THEREFORE, in consideration of the promises of each of the parties to the other and the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The recitals are a material part of this Agreement and are incorporated herein by reference. 2. Easement and Installation of Storm Sewer. a. The City hereby grants to Northwestern an easement on, in, over and under the This space reserved for Clerk’s use only. Page 3 of 13 City’s right-of-way to install, maintain and repair the Storm Sewer in the right-of- way as depicted in the Northwestern University Ryan Field – Chancellor Street Storm Sewer “Issued For Permit” plan set dated June 13, 2024 and other submittals to the City of Evanston and in the easement area outlined in the Plat of Easement, attached as Exhibit A. b. The City Engineer shall have the authority to approve minor deviations, including the route, upon written application of Northwestern. c. City hereby grants, conveys, warrants and dedicates to Northwestern, its agents, servants, employees, its successors and assigns, an easement to survey, construct, operate, maintain, repair and replace the Storm Sewer on, in, over and under the City’s right-of-way in the easement areas depicted in Exhibit A. d. City shall retain all rights to use and occupy the right-of-way, except as herein expressly granted; provided, however, City’s use and occupation of the right-of- way area may not interfere with Northwestern’s use of the area for the purposes herein described. e. Northwestern covenants and agrees in consideration of the grant of said easement to pay the City an aggregate easement fee in the total amount of $1,128,309.23 for the entire easement term. Such fee shall be paid in two installments on or before March 7 of 2025 and 2026 in the amounts of $564,154.60 and $564,154.63, respectively. At the end of said easement term, the Parties shall revisit the easement fee and negotiate any additional necessary conditions in order to renew the easement agreement. f. Prior to Northwestern installing the Storm Sewer on Asbury Ave., the Parties shall mutually agree on how Northwestern will (to the reasonable satisfaction of the City) address protecting the City’s brick sewer that is located on Asbury Ave. 3. Construction and Maintenance. a. Prior to installation of the Storm Sewer in the City right-of-way, Northwestern shall submit plans and specifications for the installation to the City Engineer. The Storm Sewer shall be installed in a reasonable manner as approved by the City Engineer. As-built drawings shall be supplied to the City Engineer within 90 days of completion of the permitted work. The as-built drawings shall specifically identify where the locations of the actual facilities deviate from the locations approved in the permit. Additionally, the as-built drawings shall be submitted to the City in an electronic version that is GIS-compatible and includes depth information. b. A permit for work in the City right-of-way shall be obtained before any work is commenced. During construction, Northwestern shall provide any necessary or required traffic control at its expense. No material shall be stored on the right-of- way without the prior written approval of the City Engineer. When such storage is permitted, all pipe, conduit, wire, poles, cross arms, or other materials shall be distributed along the right-of-way prior to and during installation in a manner to minimize hazards to the public or an obstacle to right-of-way maintenance or damage to the right-of-way and other property. Page 4 of 13 c. The Storm Sewer hereafter installed shall be so placed and all work in connection with such installation shall be so performed as to minimize the interference with ordinary travel on the right-of-way of the City unless specifically authorized by the City Engineer, or with any water, gas or sewer pipes or other utility conduits or cable television conduits or wires then lawfully in place. Northwestern, after doing any excavating, shall leave the surface of the ground in the same condition as existed prior to such excavation. All sidewalks, parkways or pavements, including driveway approaches, disturbed by Northwestern shall be restored by it, and the surface to be restored shall be with the same type of material as that existing prior to its being disturbed unless otherwise agreed by the City Engineer and Northwestern. In the event that any right-of-way, real property, or fixed improvement thereon shall become uneven, unsettled, damaged, or otherwise require restoration, repair or replacement because of such disturbance or damage by Northwestern, then Northwestern shall promptly, but in no event longer than fourteen (14) days after receipt of notice from the City, and at Northwestern's sole cost and expense, restore as nearly as practicable to their former condition said property or improvement which was disturbed or damaged. d. The City shall have no obligation to mark the location of Northwestern's facilities. Northwestern acknowledges that it has the opportunity to become a member of the statewide "One Call" Utility Location system (JULIE), and that Northwestern agrees that it will become a member as a requirement of this Agreement and that such a system is designed to alert Northwestern to planned work in the right-of- way, so that Northwestern can mark the location of its facilities to avoid damage. The City shall have no obligation to alert Northwestern to proposed work by itself or others, other than as a participating member of the JULIE system. e. Construction operations on rights-of-way may, at the discretion of the City, be required to be discontinued or restricted when such operations would create hazards to the public health, safety, and welfare. Such operations may also be required to be discontinued or restricted when conditions are such that construction would result in extensive damage to the right-of-way or other property. 4. Insurance. Northwestern shall, at its own expense, secure and maintain in effect throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Northwestern, its agents, representatives, employees or subcontractors as specified by City staff to obtain the right-of-way permit. 5. Indemnification. Northwestern shall defend, indemnify, and hold harmless the City and its officers, elected and appointed officials, agents, and employees from any and all liability, losses, or damages as a result of claims, demands, suits, actions, or proceedings of any kind or nature, including but not limited to costs and fees, including reasonable attorney’s fees, judgments or settlements, resulting from or arising out of any negligent or willful act or omission on the part of Northwestern or Northwestern’s subcontractors, employees, agents or subcontractors of agents during the performance of this Agreement. Such indemnification shall not be limited by reason of the enumeration of any insurance coverage herein provided. This provision shall survive Page 5 of 13 completion, expiration, or termination of this Agreement. Nothing contained herein shall be construed as prohibiting the City, or its officers, agents, or employees, from defending through the selection and use of their own agents, attorneys, and experts, any claims, actions or suits brought forth against them. Northwestern shall be liable for the reasonable costs, fees, and expenses incurred in such defense of any such claims, actions, or suits to the extent it is an indemnifiable claim. Nothing herein shall be construed as a limitation or waiver of defenses available to the City and employees and agents, including but not limited to the Illinois Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101 et seq. At the City Corporation Counsel’s option, Northwestern must defend all suits brought upon all such losses and must pay all reasonable costs and expenses incidental to them, to the extent it is an indemnifiable claim, but the City has the right, at its option, to participate, at its own cost, in the defense of any suit, without relieving Northwestern of any of its obligations under this Agreement. Any settlement of any claim or suit related to this project by Northwestern must be made only with the prior written consent of the City Corporation Counsel, if the settlement requires any action on the part of the City, not to be unreasonably withheld. Neither Party waives any limitations it may have on its liability under the Illinois Workers Compensation Act, the Illinois Pension Code or any other statute. Northwestern shall be responsible for any direct damages and costs to repair or remedy work performed under this Agreement resulting from or arising out of any act or omission, neglect, or misconduct of Northwestern or its subcontractors in the performance of its work or subcontractors’ work. Acceptance of the work by the City will not relieve Northwestern of the responsibility for subsequent correction of any such error, omission and/or negligent acts or of its liability for direct damage resulting therefrom. All provisions of this Section 5 shall survive completion, expiration, or termination of this Agreement. 6. Term. The term of this Agreement shall be for a period of 75 years from and after the date first set forth above, unless terminated earlier in accordance with Section 9. This Agreement can be extended upon mutual agreement of the City and Northwestern within 60 days prior to the expiration of any term. 7. Default. Failure or unreasonable delay by any party to perform any term or provision of this Agreement for a period of fifteen (15) days after written notice thereof from another party shall constitute a default under this Agreement. If the default is of a nature which is not capable of being cured within sixty (60) days, the cure shall be commenced within such period, and diligently pursued to completion. The notice shall specify the nature of the alleged default and the manner in which the default may be satisfactorily cured. In the event of a default hereunder by any party, each non-defaulting party shall be entitled to all remedies at both law and in equity. 8. Remedies. Any material violation by Northwestern, its contractors, or its successors of the material provisions of this Agreement, shall be cause for the termination of this Page 6 of 13 Agreement and all rights hereunder, provided again that the City shall first notify Northwestern in writing, the condition or act on which the violation is charged, and Northwestern shall have sixty (60) days within which to remedy such condition or act, and provided further, that should the immediate remedy thereof be out of the control of Northwestern, Northwestern shall have a reasonable time thereafter to make said correction. 9. Vacation upon Termination. Upon termination of the privileges herein granted pursuant to the terms hereof, Northwestern without cost or expense to the City, shall vacate the easement premises herein authorized. In the event of the failure, neglect or refusal of Northwestern to vacate the Storm Sewer, the City shall have the right to seek vacation, and billing Northwestern for the costs of said enforcement. 10. Abandonment of Facilities. Upon abandonment of the entire Storm Sewer within the right-of-way of the City, Northwestern shall notify the City within ninety (90) days. Following receipt of such notice, Northwestern shall fully vacate the easement premises. In the event that Northwestern chooses, in its sole discretion, not to remove any part of the Storm Sewer, Northwestern shall be deemed to consent to the acquisition, alteration or removal of all or any portion of the Storm Sewer by the City or another utility or person. Once the City or another utility or person acquires Northwestern’s facilities after the abandonment notification is sent, Northwestern will have no costs associated with removal or alteration of the facilities. 11. Notices. Any notice herein provided to be given shall be deemed properly served if delivered in writing personally or mailed by registered or certified US Postal Service Mail, postage prepaid, return receipt requested, as follows: If to the City: City of Evanston Attn: City Engineer 909 Davis St Evanston, IL 60201 With a copy to: City of Evanston Attn: Corporation Counsel 909 Davis St Evanston, IL 60201 If to Northwestern: Northwestern University Attn: Vice President of Operations 633 Clark Street Evanston, IL 60208 Page 7 of 13 With a copy to: Northwestern University Attn: Office of General Counsel 633 Clark Street Evanston, IL 60208 or to such other persons or addresses as either party may from time to time designate. 12. Assignability. The Parties agree that this Agreement and the rights granted hereunder shall inure to the benefit of Northwestern, its successors, Affiliates, and agents. Northwestern shall not voluntarily, or by operation of law, assign, lease, sublease, or otherwise transfer or encumber all or any part of Northwestern’s interest in this Agreement or in the Easement Area to any other governmental agency, individual, partnership, joint venture, corporation, land trust, or other entity without prior written consent of the City, provided, however, that Northwestern may assign or transfer Northwestern’s interest in this Agreement to a person controlling, controlled by or under common control with Northwestern (an “Affiliate”) upon notice to, but without the City’s prior consent; further, provided, that the Affiliate shall assume and agree to be bound by the terms and conditions of the Agreement and further that such assignment or transfer to an Affiliate shall not release Northwestern from its obligations hereunder without a separate written release by the City. 13. Binding Effect. This Agreement shall be binding on the Parties, their successors, heirs and assigns. 14. Severability. If any provision of this Agreement is invalid for any reason, such invalidation shall not affect any provision of this Agreement which can be given effect without the invalid prevision; and, to this end, the provisions of this Agreement are to be severable. 15. Governing Law. The Parties agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois and that venue for any disputes shall be Cook County, Illinois. [SIGNATURE PAGES FOLLOW] Page 8 of 13 Signature Page to Storm Sewer Easement CITY OF EVANSTON By: Name: Luke Stowe Its: City Manager NORTHWESTERN UNIVERSITY By: Name: Luke Figora Its: Vice President of Operations and Chief Operating Officer Page 9 of 13 STATE OF ILLINOIS ) ) SS: COUNTY OF COOK ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Luke Stowe, City Manager of the City of Evanston, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, and as the free and voluntary act of the City of Evanston, for the uses and purposes therein set forth. Given under my hand and official seal, this ____ day of ______________, 2025. Place Notarial Seal Here Notary Public STATE OF ILLINOIS ) ) SS: COUNTY OF COOK ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Luke Figora, Vice President of Operations and Chief Operating Officer of Northwestern University, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, and as the free and voluntary act of Northwestern University, for the uses and purposes therein set forth. Given under my hand and official seal, this ____ day of ______________, 2025. Place Notarial Seal Here Notary Public Page 10 of 13 EXHIBIT A (see attached) Page 11 of 13 Page 12 of 13 Page 13 of 13