R-49-14 Resolution Consenting to an Easement Agreement with Metropolitan Water Reclamation District of Greater Chicago and IMTT-Illinois Resolution No. - - 1
A Resolution Consenting to an Easement Agreement with
Metropolitan Water Reclamation District of Greater Chicago and IMTT-Illinois
WHEREAS, the Village of Lemont ("Village") is an Illinois Municipal Corporation
pursuant to the Illinois Constitution of 1970 and the Statutes of the State of Illinois; and,
WHEREAS, IMTT-Illinois ("Grantee") desires a forty-eight (48) year 50' x 275.21'
non-exclusive easement to construct, reconstruct, operate, maintain, repair and remove pipelines
on District Main Channel Atlas Parcel 25.01 for servicing the IMTT facility located at 13589
Main Street in Lemont, IL ("Subject Property"); and
WHEREAS, Grantee was previously granted an easement by the Metropolitan Water
Reclamation District of Greater Chicago ("MWRD") to operate pipelines in 1983 for a twenty
year term; and
WHEREAS, the Village leases Main Channel Parcel 25.01 under that certain Lease
Amendment Agreement dated October 4, 2012, by and between the District and Lemont
whereby Parcel 25.01 was added to L-291, which expires on June 14, 2041; and
WHEREAS, the pipeline is constructed and continues to be operated and maintained by
the Grantee with no interference of Village operations at the Subject Property; and
WHEREAS, this Easement Agreement is subject to the consent of the Village; and
WHEREAS, the President and Board of Trustees of the Village consent to an Easement
Agreement with MWRD and Grantee substantially in the form attached hereto as Exhibit A; and
WHEREAS, time is of the essence and the legal description for the easement area has
yet to be finalized; and
WHEREAS, the Village will consent to the Easement Agreement for the area that is
currently being used and operated by IMTT as contemplated by MWRD and IMTT.
BE IT RESOLVED by the Village President and Board of Trustees of the Village of
Lemont as follows:
Section 1: The foregoing findings and recitals, and each of them, are hereby adopted as
Section 1 of this Resolution and are incorporated by reference as if set forth verbatim herein.
Section 2: The Easement Agreement, attached hereto as Exhibit A, is hereby consented
to by the Village, subject to the approval of the Village Engineer and Village Attorney.
#614198 1
However, this consent may be revoked by the Village Administrator upon his review of the legal
description as provided by IMTT in the future.
Section 3: The Village Administrator is authorized to consent to the Easement
Agreement and to make minor changes to the document prior to execution which do not
materially alter the Village's obligations, and to take any other steps necessary to carry out this
resolution.
Section 4: This Resolution shall be in full force and effect from and after its passage
and approval as provided by law.
PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF LEMONT, COUNTIES OF COOK,WILL AND DUPAGE,
ILLINOIS on this 28th day of July, 2014.
PRESIDENT AND VILLAGE BOARD MEMBERS:
AYES: NAYS: ABSENT: ABSTAIN
Debby Blatzer V
Paul Chialdikas
Clifford Miklos ✓1
Ron Stapleton ✓
Rick Sniegowski ✓
Jeanette Virgilio
14111FP
'BRI K. REAVES
President
ATTEST:
i
I/‘. —
CHARLENE M. SMOLLEN
Village Clerk
#614198 2
EXHIBIT A
EASEMENT AGREEMENT
#614198 3
STM REV. 07-01-14
EASEMENT AGREEMENT
(Annual Increase-Environmental)
THIS AGREEMENT, made and entered into this 5th day of June, 2014, by and
between the METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHI-
CAGO, a municipal corporation organized and existing under the laws of the State
of Illinois, hereinafter called the "District" and IMTT-Illinois, a Delaware Limited
Partnership, hereinafter called the"Grantee."
WHEREAS, the Grantee desires a forty-eight (48) year 50' x 275.21' non-
exclusive easement to construct, reconstruct, operate, maintain, repair and remove
pipelines on District Main Channel Atlas Parcel 25.01 for servicing the IMTT facility
located at 13589 Main Street in Lemont, IL . The easement premises are legally de-
scribed and depicted in Exhibit A which is attached hereto and made a part hereof;
and
WHEREAS, Grantee was previously granted an easement by the District to
operate the subject pipelines in 1983 for a twenty year term.
WHEREAS, the Village of Lemont ("Lemont") leases Main Channel Parcel
25.01 under that certain Lease Amendment Agreement dated October 4, 2012, by
and between the District and Lemont whereby Parcel 25.01 was added to 1-291,
which expires on June 14, 2041.
WHEREAS, this easement is subject to the consent of Lemont.
WHEREAS, the District is willing to grant to the Grantee the easement afore-
said upon the conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the representations, cove-
nants, 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 forty eight years commencing retroactively from
November 1, 2002, and terminating on June 30, 2050, for the sole and exclusive
purpose to construct, reconstruct, operate, maintain, repair and remove pipelines
servicing the IMTT facility at 13589 Main Street in Lemont, IL hereinafter for con-
venience sometimes called "Improvements and Facilities", the real estate legally
described and depicted in Exhibit A which is attached hereto and made a part here-
of, hereinafter called the "Easement Premises".
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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
TWO THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($2,500.00). Because this
Easement is commencing retroactively from November 1, 2002, Grantee shall pay,
contemporaneously with Grantee's execution and delivery hereof, the lump sum of
THIRTY FOUR THOUSAND FOUR HUNDRED THIRTY FIVE AND 48/100 ($34,435.48)
DOLLARS. This amount represents the annual easement fee for the period from
November 1, 2002 through October 31, 2014, which includes $2,500.00 compound-
ed by an annual CPI adjustment). Grantee's next annual easement fee will be due
on November 1, 2015 and every November 1st thereafter throughout the term of
this Easement.
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 the
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 Depart-
ment of Labor, Bureau of Labor Statistics, 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 in-
dex of the United States government which reasonably reflects economic activity in
the Metropolitan Chicago Area.
1.05 In 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 ev-
idence of such payment within 30 days thereafter.
ARTICLE TWO
2.01 Grantee shall construct, install, operate, maintain and remove the
"Improvements and Facilities", in a good and workmanlike manner at its sole cost,
risk and expense.
2.02 The Grantee shall compensate the District for any additional costs that
the District may sustain in any future construction of sewers, reservoirs or any oth-
er surface or underground structures caused by the presence of the Improvements
and Facilities of the Grantee on the Easement Premises.
2.03 The Grantee shall relocate or remove the Improvements and Facilities
existing or constructed upon the Easement Premises at no cost to the District:
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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 grant-
ed, 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 Improvements and Facilities for construction, reconstruction, operation,
maintenance, repair or removal thereof.
3.02 The Grantee shall be solely responsible for and shall defend, indemni-
fy, 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 anywise
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 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 there-
with, 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 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-
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 The Grantee, prior to entering upon said premises and using the same
for the purposes for which this Easement is granted, shall procure, maintain and
keep in force, at Grantee's expense, the following public liability and property dam-
age insurance in which the District, its Commissioners, officers, agents and employ-
ees, are a named insured as well as fire and extended coverage, and all-risk proper-
ty insurance ("CLAIMS MADE" policies are unacceptable) in which the District is
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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 insur-
ance or other suitable evidence that such insurance coverage has been procured
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 lia-
bility of the Grantee as set forth in the provisions of paragraph 3.02 above.
ARTICLE FOUR
4.01 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 Improvements and Facilities from said real es-
tate and restore the land to its condition prior to Grantee's entry thereon, all at the
sole cost of the Grantee.
4.02 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 termination, the Grantee shall have a period of one-hundred twenty (120)
4
days from and after such termination date to remove the Improvements and Facili-
ties 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 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
Easement 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.
4.04 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
DOLLARS ($5,000.00) conditioned upon the performance of each and every condi-
tion 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 provi-
sion of this easement.
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 The Grantee also agrees that if the District incurs any additional ex-
pense for additional work which the District would not have had to incur if 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 Executive Director of the
District, promptly upon rendition of bills therefor to the Grantee.
5.02 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 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 de-
struction thereof, caused by any act or omission of the Grantee, Grantee's agents,
employees, 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 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 construc-
tion, repair, reconstruction, maintenance, existence, operation or failure of any of
the sewers, structures, channels or other works or equipment of the District now
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located or to be constructed on said Easement Premises, or on the land of the Dis-
trict adjacent to said Easement Premises.
ARTICLE SIX
6.01 Detailed plans of subsequent construction or material alteration of the
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 On or before the commencement of the last five-year period of the
Easement term hereunder, Grantee shall lodge with the Grantor its Environmental
Site Restoration/Remediation Bond in the penal sum of $5,000.00, secured either
by cash, irrevocable 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 restora-
tion or remediation. This provision shall survive the termination/expiration of this
Easement.
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 Di-
rector, 100 East Erie Street, Chicago, Illinois 60611, or to the Grantee in care of:
IMTT-Illinois
13589 Main Street
Lemont, IL 60439
ATTN: Terminal Manager
Telephone 630-257-6222
Fax 630-257-7135
email
or to such other persons or addresses as either party may from time to time
designate.
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ARTICLE SEVEN
7.01 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 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 mu-
nicipality in which the subject property is located, and furnish to the District suita-
ble evidence thereof.
7.02 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 municipali-
ty in which the subject property is located, which in any manner affects this Ease-
ment, any work done hereunder or control or limit in any way the actions of Grant-
ee, its agents, servants and employees, or of any contractor or subcontractor of
Grantee, or their employees.
7.03 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.
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 B and made a part hereof.
ARTICLE EIGHT
8.01 The Grantee shall not voluntarily or by operation of law assign, or oth-
erwise 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
venture, corporation, land trust or other entity without prior written consent of the
District.
8.02 A change in the control of the Grantee shall constitute an assignment
requiring the District's consent. The transfer of a cumulative basis of the twenty-
five percent (250/0) or more of the cumulative voting control of Grantee shall consti-
tute a change in control for this purpose.
8.03 Grantee shall notify the District in writing not less that 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 deliv-
er to the District original or certified copies of the proposed assignment, a recital of
assignee's personal and financial ability to comply with all the terms and conditions
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of the Easement Agreement and any other information or documentation requested
by the District. The District shall not unreasonably withhold the consent to assign-
ment 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.
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
instrumentalities of the United States, state and political subdivi-
sions thereof and all applicable judicial, administrative, and regu-
latory 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, report
ing, licensing, permitting, investigation, and remed
iation of the presence, creation, manufacture,
processing, use, management, distribution, trans
portation, treatment, storage, disposal, handling,
or release of Hazardous Materials;
(2) all requirements pertaining to the protection of
employees or the public from exposure to Haz-
ardous 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 Con-
servation 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 seg.), 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 seq.), the National Envi-
ronmental Policy Act (42 U.S.C. Sec. 4321 et
8
seg.), the Rivers and Harbors Act of 1988 (33
U.S.C. Sec. 401 et seq.), the Endangered Species
Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the Safe
Drinking Water Act (42 U.S.C. Sec. 300 (f) et
q., the Illinois Environmental Protection Act
(415 ILCS 5/1 et seq.) and all rules, regulations
and guidance documents promulgated or pub-
lished thereunder, Occupational Safety and Health
Act (29 U.S.C. Sec. 651 et seq.) and all similar
state, local and municipal laws relating to public
health, safety or the environment.
B. "Hazardous Materials"shall mean:
(1) any and all asbestos, natural gas, synthetic gas, Ii
quefied natural gas, gasoline, diesel fuel, petro
leum, petroleum products, petroleum hydrocar-
bons, petroleum by-products, petroleum deriva-
tives, crude oil and any fraction of it, polychlorin-
ated bi phenyls (PCBs), trichloroethylene,
ureaformalde hyde 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, 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 prop-
erties;
(5) any substance (whether solid, liquid or gaseous in
nature) the presence of which on adjacent prop-
erties could constitute trespass by or against
Grantee or District;
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(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,"
" reproductive toxicants," or any variant or simi-
lar designations;
(7) any other substance (whether solid, liquid or gas-
eous 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
reasonable area of the adjacent premises owned by
the District consistent with E1527-13 and per-
formed by an independent and duly qualified,
licensed engineer with experience and exper-
tise 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 a historical review of the use (abuse) of
the Easement Premises, a review of the utiliza-
tion and maintenance of hazardous materials on
the Easement Premises review of the Easement
Premises' permit and enforcement history (by re-
view of regulatory agency records), a site recon-
naissance and physical survey, inspection of Ease-
ment Premises, site interviews and site history
evaluations, basic engineering analyses of the
risks to human health and the environment of any
areas of identified concerns, and preparation of
a written report which discusses history, site
land use, apparent regulatory compliance or lack
thereof and which includes historical summary,
proximity to and location of USTs, LUSTs, TSDFs,
10
CERCLA site flood plain, maps, photograph log ref-
erences, conclusions and recommendations.
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 consistent with E1527-13 and per-
formed by an independent and duly qualified, li-
censed 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, extensive sampling of soils, ground waters
and structures, followed by laboratory analysis
of these samples and interpretation of the re-
sults, and preparation of a written report with bor-
ing logs, photograph logs, maps, investigative pro-
cedures, 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 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.
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
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and Recovery Act of 1976, Section 6901 et seq. of Title 42 of the United States
Code, or any similar state law or local ordinance, (ii) so as to cause a release or
threat of release of Hazardous Materials from the Easement Premises within the
meaning of, or otherwise bring the Easement Premises within the ambit of, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
Section 9601 et seq. of Title 42 of the United States Code, or any similar state law
or local ordinance or any other Environmental Law or (iii) so as to cause a discharge
of pollutants or effluents into any water source or system, or the discharge into the
air of any emissions which would require a permit under the Federal Water Pollu-
tion Control Act, Section 1251 of Title 33 of the United States Code, or the Clean Air
Act, Section 741 of Title 42 of the United States Code, or any similar state law or lo-
cal 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 repre-
sents 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 Haz-
ardous Materials, that there has not been thereon a release,
discharge, or emission, 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
Hazardous Materials in, on, under, or about the Easement
Premises or the improvements thereon, Grantee will take all
appropriate response action, including any removal and reme-
dial action after the execution date of this Easement Agreement.
9.05 INDEMNIFICATION (ENVIRONMENTAL)
A. In consideration of the execution and delivery of this Easement
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,
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, lit-
12
igation, 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 the Grant-
ee, 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
9 any
Environmental Law) regardless of whether caused by or within
the control of the Grantee, its parent company, or its subsidiar-
ies provided that, to the extent District is strictly liable 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 lia-
bility 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 there-
on only in a safe, approved manner in accordance with all gen-
erally 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 the Grantee (whether or not from the Easement Premises)
under CERCLA or under any statute providing for financial re-
sponsibility 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, 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
13
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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
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 lease 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
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 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 the Grantee
with this Article.
14
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)
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, regula-
tions, and orders of any government authority with respect to the Easement Prem-
ises.
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 Y p a or discharge. After review of
each Phase I Environmental Assessment, District, at its sole discre-
tion, may require Grantee, at Grantee's expense, to obtain a Phase
II Environmental Assessment with respect to the premises used un-
der 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. If the Phase II Assessment dis-
closes the presence of any Hazardous Materials contamination on
the Easement Premises or adjacent premises, Grantee shall take
immediate action to remediate the contamination and to restore the
Easement 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 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 Environmental
Laws that either Grantee is unwilling to remediate or that District is
unwilling to accept, District shall have the right and option to termi-
nate this Agreement and to declare it null and void.
D. In the event Grantee should receive a Notice of Environmental
Problem with respect to the Easement Premises, 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 Environmental Problem" shall mean
any notice, letter, citation, order, warning, complaint, inquiry,
claim, or demand that: (i) the Grantee has violated, or is about to
15
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violate, any Environmental Laws; (ii) there has been a release, or
there is a threat of release, of Hazardous Materials, on the Ease-
ment Premises, or any improvements thereon; (iii) the Grantee will
be liable, in whole or in part, for the costs of cleaning up, remediat-
ing, removing, or responding to a release of Hazardous Materials;
(iv) any part of the Easement Premises or any improvements there-
on is subject to a lien in favor of any governmental entity for any li-
ability, 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 (72)
hours from Grantee's and any tenant's receipt or submission there-
of.
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) the 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) the Grantee has not caused the Easement Premises
and any improvements thereon to contain: (i) as-
bestos in any form; (ii) urea formaldehyde; (iii)
items, articles, 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 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
16
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
environmental matters by any federal, state, coun-
ty, regional or local authority, (the Authorities"),
and describing any submission by Grantee concern-
ing said environmental matter which has been giv-
en or should be given with regard to the Easement
Premises 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 No-
tice of Environmental Problem, within ninety (90) days Grantee shall
submit to District a written report of a site assessment and envi-
ronmental audit, in scope, form and substance, and prepared by an
independent, competent and qualified, professional, registered en-
gineer, satisfactory to the District, showing that the engineer made
all appropriate inquiry consistent with good commercial and cus-
tomary practice, such that consistent with generally accepted engi-
neering practice and procedure, no evidence or indication came to
light which would suggest there was a release of substances on the
Site or Property which could necessitate an environmental response
action, and which demonstrates that the Site and Property com-
plies with, and does not deviate from all applicable environmental
statutes, laws, ordinances, rules, and regulations, including licenses,
permits, or certificates required thereunder, and that the Grantee is
in compliance 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 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.
17
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ARTICLE TEN (10)
10.01 Grantee shall obtain the written consent of the Village of Lemont for this
easement.
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
18
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 GREATER CHICAGO
By:
Mariyana T. Spyropoulos
Chairman of Committee on Finance
ATTEST:
Jacqueline Torres, Clerk
IMTT
By:
Title:
ATTEST:
By:
Title:
CONSENTED TO:
VIII,' OF L' ONT
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ITS: V1/(t16 re 5SM-1-
ATTEST:
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ITS: Val--44Y—�-�ic.c
19
C:\Users\dIr\AppData\Local\Temp\ph4tcpua\easement IMTT.doc