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HomeMy WebLinkAboutRes 44-01 07/17/2001 ~d 07/09/2001 RESOLUTION NO. 44-01 A RESOLUTION AUTHORIZING EXECUTION OF A RAILROAD RIGHT-OF-WAY LANDSCAPE BEAUTIFICATION LEASE BETWEEN THE VILLAGE OF MOUNT PROSPECT AND UNION PACIFIC RAILROAD COMPANY WHEREAS, the Village of Mount Prospect is desirous of entedng into a lease agreement with Union Pacific Railroad Company for railroad right-of-way landscape beautification; and WHEREAS, such lease will allow the Village of Mount Prospect to plant and maintain vegetation on the Union Pacific right-of-way within the corporate limits of Mount Prospect. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: SECTION ONE: That the Mayor and Board of Trustees of the Village of Mount Prospect do hereby authorize execution of a Lease Agreement between Union Pacific Railroad Company and the Village of Mount Prospect for railroad right-of-way landscape beautification within the corporate boundaries of the Village, and said Lease shall be for a period of one (1) year and thereafter, unless terminated as hereinafter provided as set forth in the Lease, a copy of which is attached hereto and hereby made a part hereof as Exhibit A. SECTION TWO: That this Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. AYES: CorcOran, Hoefert, Lohrstorfer, Skowron, Wilks, Zadel NAYS: None ABSENT: None PASSED and APPROVED this 17th day of July, 2001. ATTES I ~Z~ Village Clerk H:\C LKO\GEN\files\WIN\R ES\LEAS E.train. ROWbeautification2001 .doc - ' RAILROAD RIGHT-OF-WAY LANDSCAPE BEAUTIFICATION T.~%SE UNION PACIFIC RAILROAD COMPANY (hereinafter called "Company") hereby leases to the VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS (hereinafter called "Lessee") to use for planting, pruning and otherwise maintaining landscaping ("Landscape Beautification") the entire Union Pacific right-of- way in Mount Prospect, Illinois, subject to the express term and conditions of this Lease, the Specifications (the "Specifications") attached hereto as Exhibit A and hereby made a part hereof, and a Landscape Beautification Plan attached hereto as Exhibit B and hereby made a part hereof (the "Premises"). This Lease (the "Lease") shall become effective , 2001 and shall run for a period of one year and thereafter unless terminated as hereinafter provided. Lessee agrees to pay Company as rent for the Premises the sum of TEN AND N0/100 DOLLARS ($10.00) per year payable annually in advance. Nothing herein shall limit or modify the terms and conditions of any other agreement between Company and Lessee for use of Company's right-of-way or any portion of the Premises for other than Landscape Beautificationl This Lease is given upon the following express terms and conditions herein and the Specifications and Landscape Beautification Plan as finally authorized by the Illinois Commerce Commission (the "ICC Authorized Specifications") and should the Lessee at any time violate any of said terms, conditions or the ICC Authorized Specifications, or use or attempt to use the Premises for any other or different purpose than that stated herein, then the Company may, at its option, immediately terminate this Lease. As a material consideration for entering into this Lease and without which Company would not enter into same, Lessee covenants and agrees to indemnify, save harmless and protect the Company and the Commuter Rail Division of the Regional Railway Authority ("Metra") from and against any and all loss, damage, injury, claim, demand, fine, lawsuit, judgment and/or liability, and any and all costs, expenses and legal fees in connection therewith.by reason of injuries to or death of persons and/or loss of or damage to property and/or violation of any law, ordinance or regulation ("Claim") to the extent such Claim arises out of or is connected with Lessee's Landscape Beautification of the Premises or any act or omission of (i) Lessee, its officers, employees, contractors, or agents, and/or {ii) and other person(s) performing any work or service for or on behalf of the Lessee on 6r about said Premises or arising out of their presence on said Premises. Notwithstanding the foregoing, Lessee shall not be obligated to indemnify and hold harmless Company and Metra for personal injury, death and/or property damage to the extent arising out of the acts or omissions of the Company, Metra 'or the officers, employees, agents or contractors of either the Company or Metra. Company reserves the right to use, occupy and enjoy the Premises and its tracks, property and right-of-way, for such purpose, in such manner, and at such time as it shall desire, the same as if this instrument had not been executed by it, including the right to lease or license any of the Premises for commercial or industrial purposes without any prior notification to Lessee. Lessee accepts the Premises subject to the rights of any party, including Company, in and to any existing roadway, easements, permits or licenses. Lessee further accepts the Premises subject to rights of any party, including Company, in and to any existing telephone, telegraph, or other wires, and poles and facilities of any kind whatsoever, whether or not of record. Company reserves the right to maintain or relocate its existing facilities, or to-construct and thereafter maintain new facilities, in the vicinity of the Premises with no liability for damages to Lessee's interests or Premises resulting from such beautification activities. Lessee recognizes and assumes all responsibility for all present and future environmental liability or responsibility imposed under applicable environmental laws, regulations or any other similar requirements relating to any contamination of the Premises or groundwater thereunder or discharge or release to adjacent property arising from or in any respect aggravated or altered by any operations or activities by, or any equipment or facilities used by or permitted on the Premises by Lessee in performance of Landscape Beautification (the foregoing hereinafter referred to as "Lessee Landscape Beautification Operations"). Lessee, therefore, agrees to indemnify and hold harmless Company, its officers, agents, and employees from any and all liability, fines penalties, claims, demands, loss or lawsuits brought by any third party or governm~ta~ ag~ncy.~ any theory of law against Company seeking to hold Company liable for any investigation, response or cleanup costs, penalties or damages, whether personal property or environmental, for any contamination of any property or groundwater thereunder or discharge or release to adjacent property arising out of or in any respect aggravated or altered by Lessee Landscape 2 Beautification Operations. Lessee agrees that the above indemnity extends to any liability.resulting from or arising out of Lessee's implementation of any investigation, response or cleanup plan approved by the United States Environmental Protection Agency or companion state agency. Lessee further agrees to undertake at its own expense any investigation, response or cleanup of any contamination of the Premises and groundwater thereunder arising from or in any respect aggravated or altered by any Lessee Landscape Beautification Operation and to promptly notify Company of any event, notice, claim, demand or litigation which involves or alleges contamination of the Premises, the groundwater thereunder or a discharge or release therefrom to adjacent property. Lessee agrees to waive any and all statutes of limitations applicable to any controversy or dispute arising out of this paragraph, and Lessee further agrees that it will not raise or plead a statute of limitations defense against Company in any action arising out of Lessee's failure to comply with this paragraph. Company, its agents, employees and authorized contractors shall have the right to enter the Premises or any part thereof, at all reasonable hours, for the purpose of inspecting the Premises to determine if Lessee is complying with all terms and conditions of this Lease and/or to determine through inspection and/or testing if any hazardous condition, pollution or contamination is present or threatened. Lessee agrees to cooperate with Company in any such inspection and to provide at Company's request any and all permits, reports, or records of any kind, relating to any materials used, stored, treated or disposed of on the Premises. Either party hereto shall have the right at any time to cancel this Lease by giving ten (10) days' notice in writing. At the expiration for the time limited by said notice, the Lessee shall promptly, and in the manner directed by company, restore the Premises to the condition it was in prior to the leasing of same. Upon default of the Lessee to do so, the Company may accomplish the same and so restore the Premises, and the Lessee will promptly pay to the Company for the cost and expense of such restoration. In addition, at termination Lessee shall provide evidence, reasonably satisfactory to Company, that the condition of the Premises and all improvements thereon attributable to ~he acts and/or omissions of Lessee during the term of this Lease comply with all applicable laws, regulations and standards. IN WITNESS ~OF, the parties have executed these presents on , 2001. UNION PACIFIC RAILROAD VILLAGE OF MOUNT PROSPECT Title: Title: Municipal/Clerk a~ /- (Municipal Seal) Title: Resolution/Ordinance number 4 EXHIRIT A SPECIFICATIONS 1. No planting or other landscaping material, installed at, er the date of this lease becomes effective, shall be allowed within 16 feet of the edge of the nearest tie nor allowed to grow into this zone other than grass or ground cover, which will not grow in excess of three (3) feet in height. Plantings installed prior to that date, except for grass or ground cover which will not grow in excess of three (3) feet in height, shall be maintained so that they do not grow any closer than 15' from the center of the outside rail 2. Any planting or other landscape material, installed at, er the date this lease becomes effective, on the railroad right-of-way within 500 feet of any grade crossing shall be maintained so as not to exceed a height of three (3) feet above the adjacent ties. 3. Any grading or future planting done on Company's property must be approved in writing by Company's Engineering Department located at 500 West Madison, Suite 3610, Chicago, Illinois 60661. 4. Except for routine landscape maintenance such as mowing, weeding, etc., any work done on Company's property closer than 16 feet from the edge of the nearest tie will require a flagman The flagman will be provided by Company at Lessce's expense. 5. There is to be no interference with Company facilities, including pole lines, drainage structures and signal apparatus. 6. There is to be no adverse effect to vis~ility or drainage on Company property. 7. Lessee shall not construct or permit to be constructed any building, structure, excavation or any other obstruction without the written consent of Company's Engineering Department. 8. The Union Pacific Railroad Company will not, in any way, share in the cost of landscaping or for any improvements to the area covered by this lease. 9. The Union Pacific Railroad Company will not be responsible for any damage to the landscaping or improvements. EX/~RIT A SPECIFICATIONS 10. Plantings which were installed in the area 100' west of Main Street and 100' east of Emerson Street, as shown on the approved landscape plan, shall be maintained as per the ICC Exemption order dated April 10, 1985. In addition, all plantings which were previously installed or will be installed as shown on the landscape plan incorporated into the Lease ~ent as EXHIBIT B, including those plantings within 500 feet of any grade crossing, shall be allowed to remain and shall be maintained as per the ICC Order that results fi:om the Heating in the Petition entitled Village of Mount Prospect v. Union Pacific I~ailroad Company, Docket No. T01-0002, conducted on May 21, 2001. 11. Notwithstanding paragraph 2 of these Specifications, existing landscaping as the date of the Lease shall be allowed to be replaced in kind with prior notice and approval fi:om the Union Pacific l~ailroad Company.