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O-01-09 Ord Authorizing Annexation Commonwealth Edison Right of Way11 Doc #: 0902231074 Fee: $60,00 Eugene "Gene" Moore Cook County Recorder of Deeds Date: 01/22/2009 12:52 PM Pg: 1 of 13 ORDINANCE NO. 0 ,b1 -dl AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR A PARCEL, LOCATED WITHIN THE VICINITY OF THE NORTHEAST CORNER OF LEMONT, ILLINOIS Commonwealth Edison Right of Way ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT THIS 12th Day of January, 2009 Published in pamphlet form by authority of the President and Board of Trustees of the Village of Lemont, Cook, DuPage, and Will Counties, Illinois 12th Day of January, 2009 ORDINANCE NO. X0.04 - di AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR A PARCEL, LOCATED WITHIN THE VICINITY OF THE NORTHEAST CORNER OF LEMONT, ILLINOIS Commonwealth Edison Right of Way WHEREAS, Commonwealth Edison Company is the owner of the territory which is the subject of an Annexation Agreement is ready, willing, and able to enter into said agreement and perform the obligations as required therein and; WHEREAS, a copy of said Annexation Agreement has been attached hereto and included herein; and WHEREAS, the statutory procedures provided for in the Illinois Municipal Code for the execution of said agreement have been fully complied with. NOW, THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the Village of Lemont, Counties of Cook, DuPage, and Will, State of Illinois, as follows: Section 1. That the President be and is hereby authorized and directed, and the Village Clerk is directed to attest to a document known as the "Commonwealth Edison Right of Way Annexation Agreement" dated the 12th of January, 2009 a copy of which is attached hereto and made a part hereof. Section 2. That this ordinance shall be in force and effect from and after its passage, approval, and publication in pamphlet form as provided by law. PASSED AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, WILL, AND DU PAGE, ILLINOIS, on this 12th day of January, 2009. Debby Blatzer Peter Coules Clifford Miklos Brian Reaves Ron Stapleton Jeanette Virgilio AYES NAYS PASSED ABSENT Attest: eu • Approved by me 12th day of January, 2009. JOHN F PIAZZA, Villag CHARLENE "M. S OLLEN, Village Clerk Presid n ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT (the "Agreement ") is made and entered into as of this day of December, 2008 by and between Commonwealth Edison Company, an Illinois corporation ( "ComEd "), and the Village of Lemont, an Illinois municipal corporation (the "Village "). RECITALS: A. ComEd owns certain land lying outside of the corporate limits of the Village, which land is occupied by electrical and communications facilities owned and operated by ComEd and is legally described in Exhibit A attached hereto and made a part hereof (the "Property "). B. ComEd utilizes the Property for business operations and uses incidental or in any way related thereto or resulting therefrom (collectively, "Operations "), including without limitation the construction, installation, reconstruction, maintenance, repair, upgrade, expansion, addition, modification, renewal, replacement, relocation, removal, use and operation of electrical and communications systems, equipment, structures, improvements and facilities, including, without limitation, transmission and distribution facilities, whether now existing or hereafter to be installed, in, at, over, under, along or across the Property (collectively, the "Facilities ") or any related use and development of the Property by ComEd. C. The Property is not included within the corporate limits of any other municipal corporation, has no electors residing on it and may be annexed to the Village as provided under Section 7 -1 -1 of the Illinois Municipal Code, 65 ILCS 5/7 -1 -1. D. At the request of the Village, ComEd has agreed to have the Property annexed to the Village as an accommodation to the Village and in reliance upon the representations and assurances of the Village, as documented herein, that (i) annexation of the Property will not result in any additional restrictions (including without limitation any municipal regulations) or any financial burdens of any kind or nature whatsoever being imposed by the Village or third parties on ComEd's ownership, use, and operation of the Property, and (ii) the Village will fully and faithfully perform and observe during the term of this Agreement of all of the terms and conditions to be performed or observed by the Village hereunder. E. The President and members of the Board of Trustees of the Village (collectively, the "Corporate Authorities "), after due and careful consideration, have concluded that the annexation of the Property on the terms and conditions hereinafter set forth would further the growth and development of the Village and promote the best interests of the Village. F. A proposed annexation agreement substantially in substance and in form of this Agreement was submitted to the Corporate Authorities, and after a public hearing was held thereon pursuant to notice as required by statute, said proposed annexation agreement was approved by ordinance passed by a vote of two - thirds of the Corporate Authorities. C128244 v2 G. The Village agrees that the Village's Zoning Ordinance shall not apply to the Property upon the annexation of the Property to the Village and that the Property will not at any time be located within one of the Village's zoning districts, as long as the property is owned by a public utility. H. The Village has notified each and every fire protection district, library district and other entity or person entitled to notice prior to the annexation of the Property in accordance with all requirements of applicable law. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual covenants and agreements herein contained, it is hereby agreed by the Village and ComEd as follows: 1. Recitals and Exhibits. All of the foregoing recitals and the Exhibits attached hereto, are hereby incorporated into this Agreement as though fully set forth herein. 2. Annexation Petition. Concurrently with the execution of this Agreement by the parties hereto, ComEd will file with the Village Clerk a proper petition ( "Petition "), which Petition is conditioned on the terms and provisions of this Agreement, to annex the Property to the Village. The Village hereby agrees to annex the Property upon the terms and conditions contained in the Petition and this Agreement. 3. Additional Facts and Circumstances. ComEd reserves the right to add to this Agreement any terms and conditions it deems to be reasonably required, or to modify it as necessary, based on such additional facts and circumstances related to the annexation by the Village of the Property that become known to ComEd prior to its execution of this Agreement. 4. Jurisdiction. The Village hereby acknowledges and agrees that ComEd and the use of the Property are subject to the jurisdiction of the Illinois Commerce Commission and other applicable State and Federal regulatory agencies and that such jurisdiction fully pre -empts any and all jurisdiction, regulation or control that the Village may attempt to exercise over the Property. The Village hereby further agrees to the following jurisdictional matters and conditions regarding ComEd and the Property: (a) Concurrently with the passage of the ordinance annexing the Property, the Village and its Corporate Authorities shall pass an ordinance adopting the Zoning Amendment and amending the Zoning Map to designate the entire Property as an area lying outside of any of the Village's zoning districts and an area designated as an unzoned parcel to which the Zoning Ordinance shall not apply so long as the Property continues to be used, in whole or in part, for any Operations. The Corporate Authorities shall approve from time to time such additional amendments to the Zoning Ordinance and the zoning map as may be required to preserve such unzoned designation as applied to the Property. Any subsequent ordinance or regulation passed by the Village and its 2 Corporate Authorities which has the effect, directly or indirectly, of changing the "unzoned" designation of the Property shall be null and void. (b) The Village hereby acknowledges and agrees that any ordinances, regulations, codes, resolutions, maps or other items having the force of law relating to zoning, subdivision controls, planning, land use, plats, fences, public safety or health, antennae, building or occupancy permits, parking, loading areas, hours of operation, the environment, emissions or other controls, wetlands, flood control, tree trimming or any related matter (together with any amendments thereto or replacements thereof and all additional laws or items having the force of law related to any such matters that may be adopted in the future by the Village, being referred to hereinafter collectively as the "Village Regulations ") which restrict or are inconsistent with Operations shall not be applicable to the Property (c) As long as the uses of the Property are for Operations, the Village will not suffer or permit any of the Village Regulations to be applied or enforced at any time or in any manner against all or any portion of the Property, irrespective of the source of the Village's authority. The Village acknowledges and agrees that its current Village Regulations do not prohibit, limit or otherwise affect in any manner ComEd's ownership, use or operation of all or any portion of the Property. (d) In no event shall the Village condemn, take or exercise any power of eminent domain (or induce or encourage other entities to commence any such proceedings) relative to all or any portion of the Property, without the prior written consent of ComEd. (e) Any and all roadways and driveways located on the Property shall be deemed to be private and not public roadways and the Village shall not have authority over their operation. (f) Notwithstanding the foregoing and anything contained in this Agreement to the contrary, the Village acknowledges and agrees that in no event shall ComEd's entering into this Agreement be deemed to constitute a waiver or limitation of any right, claim (including, without limitation, any claim to exemption, pre - emption or non- applicability) or privilege which ComEd may have under applicable law, whether on account of its status as a electric utility or otherwise. Nothing contained herein shall be deemed to confer upon any State, Federal or local regulatory agency any jurisdiction, authority or control not otherwise conferred upon such body under applicable law. (g) The provisions of this Agreement shall supersede any and all provisions of the Village Regulations that may be in conflict or inconsistent with the provisions of this Agreement. 5. No Further Annexation of ComEd Property. Except for the annexation of the Property pursuant to the terms of this Agreement, the Village shall not annex, nor take or support any action or activity that has, or could directly or indirectly have, the intent, purpose, effect or result of annexing or attempting to annex to the Village or to any other municipality or unit of 3 local government any other portion of property owned by ComEd without the express prior written consent of ComEd, which consent may be withheld for any or no reason. 6. Real Estate Taxes, Assessments and Other Impositions. (a) The Village hereby agrees to cooperate fully with ComEd and to exercise all reasonable efforts with the appropriate township assessor's office(s) in order to ensure that for the 2009 tax year and thereafter one or more separate property tax identification numbers will be issued for the Property to become effective immediately upon the annexation of the Property pursuant to this Agreement. The Village hereby agrees to cooperate fully with ComEd and to exercise all reasonable efforts with the appropriate township assessor's office in order to ensure that the tax parcel(s) for the Property shall be classified for assessment purposes as vacant agricultural land or as any classification otherwise available for vacant land that results in the lowest possible assessed value. (b) The Village agrees to abate all property taxes and assessments that may otherwise be levied by the Village upon the Property. Without limiting the generality of the foregoing, the Village shall not, at any time, impose upon all or any portion of the Property any tax, assessment, charge or fee of any kind or nature whatsoever against the Property, irrespective of the source of the authority therefor; provided, however, that if the Village is prohibited by law from not assessing any such tax against ComEd, the Village expressly agrees to provide rebates or otherwise make payments to ComEd in the amount of such assessment. 7. Expense Reimbursement/Waiver. In connection with the matters described herein, the Village hereby waives any fees, impositions, charges, donations or other payments or exactions of any kind or nature whatsoever, including without limitation application fees, or other charges imposed for annexations or for processing applications for zoning amendments, it being acknowledged and agreed that no such charges shall be imposed on ComEd in connection with the subject matter of this Agreement. 8. Indemnity. The Village hereby agrees to indemnify, defend (with counsel acceptable to ComEd) and hold harmless ComEd, Exelon Corporation, a Pennsylvania corporation, their respective affiliated entities, and the officers, directors, employees, agents, legal representatives, successors and assigns of each of them (collectively, the "ComEd Indemnitees") from and against any and all losses, damages, claims, actions, proceedings, costs, expenses (including, without limitation, reasonable attorneys' fees and costs) and other liabilities incurred by any of the ComEd Indemnitees or asserted by the Village or any other party against any or all of such ComEd Indemnitees that result or arise from the annexation or proposed annexation or disconnection of the Property or the failure of the Village to observe any of its covenants or obligations under this Agreement. Without limiting the generality of the foregoing, the Village hereby agrees to pay for all reasonable legal costs and expenses incurred by ComEd or any of the ComEd Indemnitees in connection with (a) any challenge by the Village or any other party, other than a ComEd Indemnitee, to (i) the annexation or proposed annexation or disconnection of the Property pursuant to the terms and conditions of this Agreement or (ii) the enforceability of all or any of the provisions of this Agreement, or (b) any other claims, controversies, negotiations, or transactions between ComEd and the Village or any other party, 4 whether or not a court action is filed, related to the subject matter of this Agreement. The Village acknowledges and agrees that the foregoing indemnity constitutes a material portion of the bargained for consideration received by ComEd in exchange for its agreement to have the Property annexed to the Village hereunder. The Village further acknowledges and agrees that it is contractually bound by the foregoing indemnity to appropriate such funds as may be required from time to time to satisfy the Village's obligations hereunder. The Village further agrees that it will, within a reasonable time after ComEd's request therefor, reimburse ComEd for all costs and expenses sustained or incurred by ComEd in connection with the annexation of the Property (including, without limitation, reasonable attorneys fees) and any costs and expenses incurred in connection with the negotiation of this Agreement and any other documents or agreements connected with the annexation of the Property. This Section shall survive the termination of this Agreement. 9. Further Assurances. The Village and the Corporate Authorities agree to enact such resolutions and ordinances, do all things necessary or appropriate, or take such other action as may be necessary or desirable to enable the Village and the Corporate Authorities to comply with the terms of this Agreement and to permit ComEd to realize the full benefit hereof, including, without limitation, entering into, executing and delivering extensions to the term of this Agreement, as provided in Section 11 of this Agreement. In addition, the Corporate Authorities agree to do all things that may be necessary from time to time to enable ComEd to continue to use the Property and the structures and improvements located thereon for Operations, including specifically, electric utility purposes or uses incidental or related thereto. 10. No Third Party Beneficiaries. If ComEd elects not to file a petition for annexation to the Village pursuant to this Agreement or obtains the disconnection of its Property pursuant to Section 10, neither party shall have any continuing obligation to the other party, except the terms and conditions of Section 7 of this Agreement shall survive the expiration or termination of this Agreement. ComEd's consideration of and, if applicable, its execution of this Agreement shall in no way be deemed to confer any rights on any third parties and ComEd and the Village hereby disclaim the existence of any third party beneficiaries of this Agreement. 11. Defense and Enforcement of Agreement. The parties agree to the following terms and conditions regarding the defense and enforcement of their respective rights and obligations under this Agreement: (a) ComEd, subject to its right to indemnification under Section 7 hereof, and the Village shall take all actions necessary or appropriate to defend the validity of this Agreement and all actions taken and all documents executed pursuant to or in connection with this Agreement. (b) This Agreement shall be enforceable in any court of competent jurisdiction by each of the parties hereto by any appropriate action at law or equity, including without limitation any action to secure the performance of the representations, promises, covenants, agreements and obligations contained herein, by mandamus, specific performance, injunction or otherwise, or by any action to obtain money damages for a breach of this Agreement. The parties acknowledge that any failure by either of them to perform their respective representations, promises, covenants, agreements or 5 obligations under this Agreement will cause immediate and irreparable harm for which no adequate legal remedy will be available. Accordingly, each party waives all defenses to requests for equitable relief based on the purported absence of immediate, irreparable harm or the availability of adequate legal remedies. (c) The failure of either party to insist upon the strict enforcement and prompt performance of the representations, promises, covenants, agreements and obligations set forth in this Agreement shall not constitute or be construed as a waiver or relinquishment of such party's right thereafter to enforce any such representation, promise, covenant, agreement or obligation, but the same shall continue in full force and effect. (d) The rights and remedies set forth in this Agreement (including ComEd' s right and remedy of disconnection as set forth in Section 10 hereof) are non - exclusive and cumulative in nature. Either party may exercise any one or more of the rights or remedies described herein or resort to any other remedy available to such party at law or in equity without first exhausting and without impairing any right or remedy afforded hereby. 12. Right to Disconnect. The Village and ComEd agree that ComEd may (without any obligation to do so) elect to disconnect from the Village all or any portion of the Property, at any time during the term of this Agreement if the Village breaches, in any material respect, or fails to perform any material obligation in a timely manner any of the Village's representations, warranties, undertakings, indemnities, covenants or agreements contained in this Agreement. 13. Term of Agreement. This Agreement shall be valid and binding upon the Village and ComEd, and their respective successors and assigns, for a period ending on the later of: (a) twenty (20) years from and after the date of its execution; or (b) the date which constitutes the maximum term permitted by applicable law as of the date of this Agreement, or such longer term as may be subsequently allowed. Notwithstanding anything to the contrary contained in this Agreement, the terms and provisions of Section 7 of this Agreement shall survive the expiration or termination of this Agreement or otherwise permitted by law. The Village shall conduct any public hearing that may be required in connection with such extensions. In the event it is determined by a court of competent jurisdiction that any such extension is invalid under law made applicable to this Agreement, the term of this Agreement shall be extended for the maximum period: of time permitted by applicable law. This Agreement shall survive the annexation of the Property and shall not be merged into or expunged in whole or in part by the annexation of the Property. 14. Binding Effect of Agreement/Amendments. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors, assigns, lessees or licensees. The Village and ComEd agree that the benefits and burdens under this Agreement are not personal but run with the land comprising the Property. This Agreement may be amended in writing from time to time with the consent of the parties hereto pursuant to statute. 15. Severability /Invalidity. If any clause, phrase, provision or portion of this Agreement or the application thereof to any person or circumstance shall be held to be invalid or 6 unenforceable under applicable law by a court of competent jurisdiction, such invalidity or unenforceability shall not affect, impair or render invalid or unenforceable any other provision of this Agreement, nor shall it affect the application of such clause, phrase, provision or portion hereof to any other persons or circumstances, and the parties agree to amend this Agreement by replacing the invalid or unenforceable term with such other terms and conditions as will give the fullest possible effect, within the limits of applicable law, to the intentions and understandings of the parties as set forth in this Agreement. Notwithstanding the foregoing, in the event that any of the terms and conditions contained in Sections 3, 4, 5, 6, 7, 8A, 8B, 9, 10 or 11 hereof are determined by a court of competent jurisdiction to be invalid or unenforceable in any material respect, then, at ComEd's option, the Property may be declared to have been invalidly annexed, and in such event, ComEd shall be entitled to obtain an order disconnecting the Property from the Village as an invalidly annexed parcel in the manner provided under Section 7 -1 -48 of the Illinois Municipal Code, 65 ILCS 5/7 -1 -48. 16. Regulatory Approval. This Agreement may be subject to the approval of one or more regulatory agencies. If this Agreement is subject to such approval, the parties agree to jointly seek such approval. If such approval is denied after the annexation of the Property hereunder, such annexation shall be null and void and ComEd shall have the right to seek disconnection of the Property, unless ComEd and the Village, in the exercise of their sole individual discretion, agree to any modifications of this Agreement that may be required to obtain the approval of the subject regulatory agency. 17. Authority. The Village hereby represents and warrants that this Agreement was authorized and approved by the Corporate Authorities pursuant to its Ordinance No. adopted on , 20_, and that no further action is required in order for this Agreement to constitute the legally binding obligation of the Village, enforceable in accordance with the terms and conditions hereof. Each party to this Agreement hereby represents and warrants to the other that it has full power and authority to execute, deliver and perform their respective obligations under this Agreement in accordance with its terms and conditions. 18. Counterparts. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one agreement. [SIGNATURE PAGE TO FOLLOW] 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. ATTEST: 6A ev? Village, Clerk Village of Lemont 4idgild ib By: Title: Presid COMMONWEAL By: Title: EDISON COMPANY 8 o n . -oo er Senior Vice President STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, P'1DM ilr 71146Q I , a Notary Public in and for said County, in the State aforesaid, do hereby certify that .Lip ` i 1- y. , the �tS►o \/I C. ; Lin? of COMMONWEALTH EDISON COMPANY, an Illinois corporation, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such officer, appeared before me this day in person, and acknowledged that he signed and delivered the said instrument as her own free and voluntary act and as the free and voluntary act of the company, for the uses and purposes therein set forth. Given under my hand and notarial seal this 31 day of i il- tILW -g- , 20D%. STATE OF ILLINOIS ) ) SS COUNTY OF 0,9.1c, Notary Public d I, . ;, i.. , A S , a Notary(jublic in and for said County, in the State aforesaid, do hereby certify at Jai I' '(� a z. 7-61 ct personally known to me to be the President of t i age of Lemont, and aInai4ot wr 0 (1 anr, , personally known to me to be the Clerk of the Village, both of whom are personally known to me to be the same persons whose names are subscribed to the acceptance of the foregoing instrument as such President and Village Clerk, appeared before me this day in person, and acknowledged that they signed and delivered such acceptance for and on behalf of said Village and caused the corporate seal of said Village to be affixed thereto as their free and voluntary act, and as the free and voluntary act of the Village for the uses and purposes therein set forth, pursuant to a written resolution duly passed by the President and Board of Trustees of the Village on the +7/ day of JX cnA) CA-PIA , 20 01 iven under my hand and notarial seal this 17. day of \a v i 1,: 9 19/).NA P Notary Public ,2001 OFFICI ROSEMAY YATES NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 8.132012 PLAT OF ANNEXATION /I Risiv..g-ti in IT " -.---- THE VILLAGE OF LEMONT / /1 ,/,- ............. ,....,,,„ ., ,,..f.... • . .. 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