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2002-32a • RESOLUTION NO. 2002- 32 A RESOLUTION APPROVING THE COMMONWEALTH EDISON RECREATION LEASE (BIKE PATH AND OPEN SPACE) WHEREAS, a lease from Commonwealth Edison is required to properly accommodate the Village's bike path system; and, WHEREAS, the Village is required to approve the required recreational lease. NOW, THEREFORE, BE IT RESOLVED by the Village President and Board of Trustees of the Village of Buffalo Grove, Cook and Lake Counties, Illinois, that the Village President and Village Clerk are hereby authorized and directed to execute the recreational lease which is attached hereto and made a part hereof. AYES: 6 - Braiman_ Glover. Berman. Johnson, Kahn. Trilling NAPES: 0 — None ABSENT: 0 — None PASSED: July 1 >� ` 52002 APPROVED: July 1 , 2002 APPROVED: Village President ATTEST: Village Clerk GAENGINEERI0RD\Res02 -3.doc DESPLAINES- WAUKEGAN R/W PARCEL: PARTS OF 259, 260, 261, & 262 SEC. 28, TWP. 43 N., RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN LAKE COUNTY, ILLINOIS ComEd TAX PARCEL NO. 4120 -1 & 4128 ComEd NORTHERN REGION LEASE SUPPLEMENT NUMBER TWO LANDLORD: Commonwealth Edison Company, an Illinois corporation TENANT: Village of Buffalo Grove ORIGINAL LEASE DATED: October 16, 1987 ( "Original Lease ") PRIOR SUPPLEMENTS DATED: December 2, 1992 ( "Lease Supplement Number One ") PURPOSE: Maintenance of a grass recreation area with the maintenance of an eight (8) foot bike path all insofar as permitted by law and for no other reason whatsoever. LOCATION OF PREMISES: That part of Commonwealth Edison Company's property lying West of Weiland Road, and North of Busch Road located in Buffalo Grove, Illinois. LANDLORD and TENANT have entered into the Original Lease for a five year period commencing on October 1, 1987, and expiring on September 30, 1 992, which Original Lease was extended by Lease Supplement Number One for an additional ten year period commencing October 1, 1992, and expiring on September 30, 2002, and LANDLORD and TENANT desire to amend the Original Lease as modified by Lease Supplement Number One (the Original Lease as modified by Lease Supplement Number One is hereinafter referred to as the "Amended Lease ") as provided below. MODIFICATIONS: It is mutually agreed that the Amended Lease is hereby extended for an additional twenty (20) year period commencing on October 1, 2002, and expiring on September 30, 2022, unless sooner terminated as provided in Amended Lease. Paragraph four under "USE OF PREMISES" on Page 5 of the Original Lease is hereby deleted and amended to read as follows: • 0• "Due to the presence of LANDLORD'S electrical wires located on the LEASED PREMISES, no vehicles, equipment or anything else having a height more than fourteen (14) feet from grade level including, but not limited to, any equipment attached to vehicles or equipment such as antennas, shall be driven, moved or transported thereon. Neither shall any activity which could result in a wire to ground electrical contact or damage to towers or poles be allowed. Such activities include, but are not limited to, flying kites, model airplanes, driving minibikes, go carts and snowmobiles. TENANT shall post signs prohibiting such activities." The section titled "ENVIRONMENTAL PROTECTION" on Page 7 of the Original Lease is hereby deleted and amended to read as follows: ENVIRONMENTAL MATTERS: a.) At all times during the term of this LEASE, TENANT, its employees, agents, contractors, subcontractors, licensees and invitees, and any other person or entity in privity with TENANT or entering upon LANDLORD'S property by, through or under any right granted to TENANT herein (collectively, the "TENANT GROUP "), shall conduct their operations and otherwise use and occupy the LEASED PREMISES and any other property of LANDLORD hereunder in strict compliance with all applicable Environmental Laws (as hereinafter defined) and, without limiting the generality of the foregoing, shall not cause any Hazardous Materials (as hereinafter defined) to be introduced to or handled on the LEASED PREMISES or any other portion of LANDLORD'S property. b.) If there are wetlands on the LEASED PREMISES or any adjacent property of LANDLORD at the commencement of the LEASE or if wetlands should develop on the LEASED PREMISES or such adjacent property during the term of the LEASE, TENANT shall strictly comply with and observe all laws, rules, statutes and regulations applicable to wetlands of any federal, state, county or local regulatory agency and any other governmental authority having jurisdiction over the LEASED PREMISES or the parties. At LANDLORD'S request, TENANT, at its cost, shall furnish LANDLORD with a survey of the LEASED PREMISES delineating any wetland areas located on the LEASED PREMISES. Under no circumstances shall TENANT change the physical characteristics of any wetland areas located on the LEASED PREMISES or any adjoining land or place any fill material on any portion of the LEASED PREMISES or adjoining land, without in each instance obtaining LANDLORD'S prior written consent. LANDLORD may grant or withhold such consent in its sole and exclusive discretion and, should LANDLORD grant such consent, TENANT shall secure all wetland permits, licenses and approvals as may be required from all appropriate governmental authorities prior to commencing any work and shall immediately provide LANDLORD with copies of all such permits, licenses and approvals. c.) Prior to commencing any work or entering upon the LEASED PREMISES, TENANT shall obtain all permits, consents, approvals or other authorizations required under any applicable Environmental Laws in connection with such work and TENANT'S use and occupancy of the LEASED PREMISES. 2 d.) TENANT hereby indemnifies and shall defend, with counsel acceptable to LANDLORD, and hold harmless LANDLORD, Exelon Corporation, a Pennsylvania corporation, and all of their respective subsidiaries and affiliates, successors and assigns, and the officers, directors, employees, agents, shareholders and legal representatives of each of them (collectively, the "LANDLORD GROUP "), from and against any suits, causes of action (whether asserted under Environmental Laws or at common law), damages (including, but not limited to, consequential damages), losses, claims, demands, injuries, liens, costs and expenses of any kind, including without limitation court costs, attorneys' and consultants' fees, arising out of or in any way related to any of the following: any breach by the TENANT GROUP, or any of them, of any covenants or representations set forth in this Section; any violation by the TENANT GROUP, or any of them, of any Environmental Laws; the presence, release or threatened release of any Hazardous Materials in, at, on or beneath the LEASED PREMISES or any adjoining property of LANDLORD, provided that such presence, release or threatened release of Hazardous Materials is not due solely to LANDLORD'S actions. If, during the performance of any work by TENANT'S hereunder, TENANT becomes aware that soil, groundwater, or other material on, within or under LANDLORD'S property is contaminated by any Hazardous Materials, TENANT shall notify LANDLORD and TENANT shall immediately secure the work area, at TENANT'S cost, in such a manner as to adequately protect the public safety. e.) As used in this LEASE, the term "Hazardous Materials" means any hazardous or toxic substances, materials or wastes, including, but not limited to solid, semi - solid, liquid or gaseous substances which are toxic, ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or animal health or well -being and those substances, materials, and wastes listed in the United States Department of Transportation Table (49 CFR 972.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto or such substances, materials and wastes regulated under any applicable local, state or federal law including, without limitation, any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls, (iv) designated as "hazardous substances" pursuant to Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317), (v) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), or (vi) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601) or any other applicable Environmental Law. . f.) As used in this LEASE "Environmental Laws" means all federal, provincial, state and local environmental laws, rules, regulations, ordinances, judicial or administrative decrees, orders or decisions, authorization or permits, including, but not limited to, the Resources Conservation and Recovery Act, 42 U.S.C. § §6901, et seq., the Clean Air Act, 42 U.S.C. § §7401, et seq., the Federal Water Pollution control Act, 33 U.S.C. § §1251, et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. §§ 1101, et seq., the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § §9601, et seq., the Toxic Substances control Act, 15 U.S.C. § §2601, et seq., the Oil Pollution Control Act, 33 U.S.C. § §2701, et seq., or K, 9! 0 any other comparable local, state or federal statute or ordinance pertaining to the environment or natural resources, including without limitation the preservation of wetlands, and all regulations pertaining thereto. g.) With respect to all activities of the TENANT GROUP, or any of them, on the LEASED PREMISES or on LANDLORD'S Property, TENANT shall be responsible for ensuring that each member of the TENANT GROUP shall: (i) at its own expense comply with all Environmental Laws; (ii) not consent to or authorize the presence of any Hazardous Materials on the LEASED PREMISES or LANDLORD'S property; (iii) not take any action that would subject the LEASED PREMISES or any portion of LANDLORD'S property to permit requirements under RCRA or any other Environmental Laws for storage, treatment or disposal of Hazardous Materials; (iv) not dispose of Hazardous Materials in any dumpsters provided by LANDLORD on the LEASED PREMISES or LANDLORD'S property; (v) not discharge Hazardous Materials into drain or sewers; (vi) not install any underground storage tanks on the LEASED PREMISES or any portion of LANDLORD'S property; (vii) not cause or allow the release of any Hazardous Substances on, to or from the LEASED PREMISES or LANDLORD'S property; (viii) at its own cost arrange for the lawful transportation and off -site disposal of all Hazardous Materials that it generates; and (ix) upon the termination or expiration of the LEASE, remove any Hazardous Materials it used at or brought to the LEASED PREMISES or LANDLORD'S property in accordance with all requirements of applicable law. TENANT shall return the LEASED PREMISES and LANDLORD'S property to substantially the same condition as existed before the commencement of the LEASE. h.) TENANT acknowledges that LANDLORD may incur costs as a result of a change in Environmental Laws. TENANT agrees that any such costs incurred by LANDLORD for complying with such new laws and due in whole or in part to TENANT'S use and occupancy of the LEASED PREMISES shall be an expense recoverable by LANDLORD. To the extent any such expense paid by TENANT is subsequently recovered by or reimbursed to LANDLORD through insurance or recovery from responsible third parties or other action, TENANT shall be entitled to a proportionate share of such recovery or reimbursement. i.) TENANT shall provide LANDLORD with written notice (i) upon TENANT'S obtaining knowledge of any potential or known violations of applicable Environmental Laws or the release or threat of release of any Hazardous Materials affecting the LEASED PREMISES or LANDLORD'S adjacent property or (ii) of TENANT'S receipt of any notice, correspondence, demands or communication of any nature from any governmental authority related to any alleged or actual violation of any Environmental Laws affecting the LEASED PREMISES or LANDLORD'S adjacent property. j.) TENANT'S obligations under this Section shall survive the expiration or termination of this LEASE. The section titled "INSURANCE AND INDEMNITY" on Page 8 of the Original Lease is hereby deleted and amended to read as follows: 4 • INSURANCE AND INDEMNITY: To the fullest extent permitted by law, TENANT hereby agrees to indemnify, defend (with counsel acceptable to LANDLORD) and agrees to hold harmless LANDLORD GROUP from all claims, litigation and liability asserted against them or any of them, and any costs and attorney's fees incidental thereto, on account of injury to or death of any person or persons whomsoever, on account of damage to any property, or on account of loss or interruption of electric service, caused by, connected with, or in any way attributable to, the rights herein granted, or TENANT'S failure to comply with any of the terms or condition of this Lease, or resulting from acts or neglect of TENANT or any member of TENANT GROUP. TENANT covenants and agrees, that it will not permit or suffer any lien to be put upon, or arise or accrue against the LEASED PREMISES, in favor of any person or persons, individual or corporate, for furnishing either labor or material, for work to be performed on the LEASED PREMISES. TENANT further covenants and agrees to hold LANDLORD and the LEASED PREMISES free from any and all liens, or rights or claims of lien, which may, or might, arise or accrue under, or be based upon any mechanic's lien law, or other similar laws, of the State of Illinois, now or hereafter in force. All contracts and agreements that may be made by TENANT, relating to the provision of labor or material for any work to be performed on the LEASED PREMISES, shall expressly state that the interest and reversion of LANDLORD in and to the LEASED PREMISES shall be wholly free from, and not subject to, any lien or claim of any contractor, subcontractor, mechanic, materialman or laborer, whether based upon any law or regulation of the State of Illinois, or any other authority, now or hereafter in force to be enacted, and TENANT also hereby covenants and agrees that it will not enter into any contract for such work, which shall not, in express terms, contain the aforesaid provisions. To the fullest extent permitted by law TENANT releases LANDLORD and each member of LANDLORD GROUP from, and waives any claims for, any personal injury or any loss or damage resulting from LANDLORD'S use, installation, construction, or maintenance of overhead or underground electrical facilities, now or hereafter installed or constructed on or about the LEASED PREMISES, or for damage caused by fire, vandalism or other casualty, to any vehicle, equipment, merchandise or personal property on the LEASED PREMISES at any time during the term hereof. (a) TENANT agrees to require each of its contractors before providing any labor or materials in connection with any work on the LEASED PREMISES, to purchase and maintain, or, at the option of TENANT, to itself purchase and maintain, at the cost of TENANT or its contractor, a policy or policies of insurance issued by good and responsible insurance companies and in a form satisfactory to LANDLORD as follows: (i) Workers' Compensation Insurance Policy: Coverage A - providing payment promptly when due of all compensation and other benefits required of the insured by the workers' compensation law; Coverage B Employers' Liability: providing payment on behalf of the insured with limits not less than $1,000,000 each accident/occurrence 6 for all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, including death at any time resulting therefrom. Coverage -A and Coverage B will cover all contractors, subcontractors, and their subcontractors; (ii) Comprehensive General Liability Policy or Policies covering all contractors, subcontractors and all their subcontractors with limits not less than the combined single limit of $4,000,000 for bodily injuries to or death of one or more persons and /or property damage sustained by one or more organizations as a result of any one occurrence, which policy or policies shall not exclude property of LANDLORD. LANDLORD shall be added as Additional Insured under endorsement GL 2010 or CG 2010. Bodily injury means bodily injury, sickness, or disease sustained by any person which occurs during the policy period, including death, at any time resulting therefrom. Property damage means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period; and (iii)Automobile Liability in the amount of not less than $2,000,000 per occurrence combined single limit covering all owned leased, rented and non -owned vehicles. There shall be furnished to LANDLORD, prior to commencing the work of installing, repairing, replacing or removing the Installation, a certified copy of each policy of insurance or a Certificate of Insurance evidencing the.coverage's specified in subsections (i), (ii) and (iii) of this Section. Insurance coverage as required herein in subsection (a) items (i), (ii), and (iii) shall be kept in force until all work has been completed. Declarations in each of said policies shall identify the work as being done by and for others on property owned by LANDLORD, and there shall be no exclusions in any of said policies not approved by LANDLORD. LANDLORD hereby reserves the right to amend, correct and change, from time to time, the limits, coverage and form of policy as may be required from TENANT'S contractor or contractors before entering the LEASED PREMISES or LANDLORD'S other property to perform any work thereon. (b) TENANT shall, in any event, purchase and maintain at all times during the term of this LEASE, at its sole cost, the following insurance coverages: (i) an Owner's, LANDLORD'S and TENANT'S Liability Insurance Policy or it's equivalent in the name of LANDLORD, as the insured, with limits of not less than the combined single limit of $4,000,000 for bodily injuries to or death of one or more persons and/or property damage sustained by one or more organizations as a result of any one occurrence, which policy shall not exclude property of LANDLORD and shall include automobile liability (owned and non - owned) with combined single limits of not 6 less than $2,000,000. Bodily injury means bodily injury, sickness, or disease sustained by any person which occurs during the policy period, including death, at any time resulting therefrom. Property damage means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period; , OR (ii) as an alternative to the Owner's, LANDLORD'S and TENANT'S Liability Insurance Policy or it's equivalent described hereinabove, TENANT may purchase and provide a rider or an endorsement to its existing Comprehensive General Liability policy or policies of insurance naming LANDLORD, as an additional insured under endorsement GL 2010 or CG 2010, covering the location of TENANT'S facilities, and including coverage extensions for premises /products /completed operations and contractual liability for TENANT'S indemnity obligations hereunder, provided that the limits and coverage in this alternative form of insurance are equal to or greater than the limits and coverages specified above in the Owner's; LANDLORD'S and TENANT'S Liability Insurance Policy or it's equivalent. LANDLORD hereby reserves unto itself the unrestricted right to either approve or reject, during the term of this LEASE, any such alternative form of insurance that may be presented by TENANT. AND (iii) Automobile Liability Policy in an amount of not less than $1,000,000.00 per occurrence combined single limit for bodily injury and property damage covering all owned, leased, rental or non -owned vehicles, which shall include automobile contractual liability coverage. (c) All insurance policies required by this Section shall be issued by good and reputable companies having a Best's Rating of A - /VII or better and shall provide thirty (30) days prior written notice of any substantial change in the coverage, cancellation or non - renewal. Any policies of insurance maintained by TENANT, its contractors or subcontractors, shall be primary without right of contribution or offset from any policy of insurance or program of self - insurance maintained by LANDLORD. TENANT agrees and shall require each of its contractors and subcontractors to agree that they shall each arrange for the issuers of all policies of insurance required hereunder to waive their rights of subrogation against LANDLORD, its directors, officers, employees and agents. LANDLORD hereby reserves the right to amend, correct and change, from time to time, the limits, coverage and form of policy as may be required from TENANT. 7 Y Prior to the date of this LEASE and within thirty (30) days prior to each anniversary of the date of this LEASE occurring during the term hereof, TENANT shall furnish LANDLORD with certificates of insurance evidencing TENANT'S compliance with the requirements of this Section. There shall be no exclusion in any of such policies or renewals not approved by LANDLORD. The paragraph on page 12 of the Original Lease headed "TAXES" is hereby deleted and amended to read as follows: "TAXES ": TENANT agrees to use its best efforts to provide LANDLORD with a Certificate of Exemption of Real Estate Taxation for the LEASED PREMISES each and every year during the term. However, if TENANT cannot provide LANDLORD with a Certificate of Exemption of Real Estate Taxation for the LEASED PREMISES each and every year during the term, TENANT agrees to reimburse LANDLORD for any property taxes for the LEASED PREMISES within thirty (30) days after presentation of a bill. Paragraph one under "TERMINATION OF LEASE" on page 14 of the Original Lease is hereby deleted and amended to read as follows: TERMINATION OF LEASE: This LEASE may be terminated with respect to all or any portion of the LEASED PREMISES at any time by either party hereto by giving 90 days' prior written notice to the other party of such termination. The mailing of such notice in accordance with the provisions of the Paragraph hereof entitled "NOTICES" shall be deemed to be sufficient service thereof. The paragraph on Page 17 of the Original Lease headed "NOTICES" is hereby deleted and amended to read as follows:. "NOTICES ": "All notices to LANDLORD shall be in writing; to Commonwealth Edison Company, c/o Manager, Land Leasing, Real Estate & Facilities, Three Lincoln Center, 4th Floor, Oakbrook Terrace, Illinois, 60181, or at such other place as LANDLORD may from time -to -time designate in writing. All notices to TENANT shall be in writing; addressed to TENANT, c/o Village Manager, 50 Raupp Boulevard, Buffalo Grove, IL. 60090, or at such other place as TENANT may from time -to -time designate in writing. The term "in- writing" shall include telegraphic, telecopier, telex, electronic mail or similar means of transmitting writings ". The following paragraphs are added to the Original Lease: All of the terms and conditions-of the Amended Lease are incorporated herein by reference and except as expressly modified by this instrument, said terms and conditions shall remain in full force and effect. 8 • i AUTHORITY TO ACT: This agreement shall be executed for and on behalf of the TENANT pursuant to a resolution adopted by the Trustees of the Village of Buffalo Grove, the TENANT, at a regular meeting held July 1 , 200 2, and signed by the officers therein designated as signatories and attested by the clerk of such TENANT and a certified copy of such resolution shall be attached hereto and made a part hereof as evidence of the authority herein exercised by the undersigned officers executing the Lease. IN WITNESS WHEREOF, the part' hereto have hereunto set their hands and seals this � day of , 2002. LANDLORD: COMMONWEALTH EDISON COMPANY r By - - /��V N. J. Schilling g Manager, Land Leasing Real Estate & Facilities TENANT: ATTEST: ' � VILLAGE OF BUFFALO GROVE BY C►v TITLE Village Clerk By (AFFIX SEAL HERE) Title Village President 9