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.
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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,
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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:
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•
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
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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
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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.
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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.
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• 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
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