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Resolution 2004-13 A STATE OF ILLINOIS ) COUNTY OF KENDALL ) RESOLUTION 2004- RESOLUTION APPROVING EXECUTION OF COMMONWEALTH EDISON COMPANY LEASE SUPPLEMENT NUMBER TWO WHEREAS,the United City of Yorkville has deemed it necessary to enter into an extension of a lease agreement originally commencing on May 1, 1989 for access and wildlife walking trail; and WHEREAS, said extension shall commence on May 1,2004 and expire on April 30,2014; and WHEREAS,the Mayor and City Council of the United City of Yorkville deem it to be in the best interest of the City to preserve said easement described in the Lease Supplement Number Two on said terms and conditions: NOW THEREFORE, the Mayor is authorized to execute Lease Supplement Number Two with Commonwealth Edison Company. PASSED AND APPROVED this" day of r-I A.Z '200Y WANDA OHARE Gt ' JOSEPH BESCO VALERIE BURD PAUL JAMES LARRY KOT MARTY MUNNS ROSE SPEARS / RICHARD STICKA MAYOR AT E T: CITY CLERK Law Offices of Daniel J. Kramer 1107A South Bridge Street Yorkville,Illinois 60560 630,5539500 J ,�0 United City of Yorkville County Seat of Kendall County ESL , �" 1836 800 Game Farm Road -4 0 Yorkville,Illinois 60560 O �� b, O Phone:630-553-4350 � Fax:630-553-7575 L E CERTIFIED COPY AFFIDAVIT I, Elizabeth A. D'Anna, Deputy Clerk in and for the United City of Yorkville, Kendall County, State of Illinois, and Legal Custodian of the records, files and seal of said City do hereby certify this is a full and complete co of the original document identified as �''l tl�� 1 f�� �;' l P copy � filed in my office on / '(T Dated this "= day of -� �� ' 2004. Elizabeth D'Anna, Deputy erk SEAL FOX &ILLINOIS UNION R/W PARCEL: 4 W1/2, SEC.4 TWP. 36N RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN KENDALL COUNTY,ILLINOIS ComEd TAX PARCEL 1653 ComEd CENTRAL REGION LEASE SUPPLEMENT NUMBER TWO LANDLORD: Commonwealth Edison Company,an Illinois corporation TENANT: City of Yorkville LEASE DATED: May 1, 1989 PRIOR SUPPLEMENTS DATED: May 12, 1994 PURPOSE: Wildlife walking trail and an access road for the tenant to periodically service its lift Station,all insofar as permitted by law and for no other purpose whatsoever. LANDLORD and TENANT have entered into the hereinabove mentioned Lease for a five year period commencing on May 1, 1989 and expiring on April 30, 1994, which Lease was extended by Lease Supplement Number One dated May 12, 1994,for an additional ten years commencing on May 1, 1994 and expiring on April 30, 2004,and LANDLORD and TENANT desire to amend said Lease subject to the modifications hereinafter provided. MODIFICATIONS: It is mutually agreed that the said Lease is hereby extended for an additional ten year period commencing on May 1,2004 and expiring on April 30, 2014,unless sooner terminated as provided in said Lease. The paragraph on Page 7 of the Lease dated May 1, 1989,headed "ENVIRONMENTAL PROTECTION" is hereby deleted and amended to read as follows: ENVIRONMENTAL PROTECTION A. General. Tenant covenants and agrees that Tenant shall conduct its operations on the Leased Premises in compliance with all applicable Environmental Laws(as hereinafter defined) and further covenants that neither Tenant nor any member of the Tenant Group shall use,bring upon, transport, store,keep or cause or allow the discharge, spill or release(or allow a threatened release) in each case of any Hazardous Substances(as hereinafter defined) in,on,under or from the Leased Premises. Without limiting any other indemnification obligations of Tenant contained herein,Tenant hereby agrees to protect, indemnify, defend(with counsel acceptable to Landlord)and hold harmless the Indemnified Parties from and against any and all Losses and Claims(including,without limitation,(i) reasonable attorneys' fees,(ii)liability to third parties for toxic torts and/or personal injury claims, (iii) fines,penalties and/or assessments levied or raised by any governmental authority or court, and(iv) assessment, remediation and mitigation costs and expenses and natural resource damage claims)arising out of,resulting from or connected with any Hazardous Substances used,brought upon,transported, stored,kept,discharged, spilled or released by Tenant, any member of the Tenant Group or any other person or entity(except for any person or entity which is an Indemnified Party) in,on,under or from the Leased Premises. For purposes of this Lease, the term"Hazardous Substances"shall mean all toxic or hazardous substances, materials or waste,petroleum or petroleum products,petroleum additives or constituents or any other waste,contaminant or pollutant regulated under or for which liability may be imposed by any Environmental Law. "Environmental Laws"shall mean all federal,provincial, state and local environmental laws(including common law)regulating or imposing standards of care with respect to the handling, storage,use,emitting,discharge,disposal or other release of Hazardous Substances, including,but not limited to, the Resource Conservation and Recovery Act of 1976,42 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 of 1980,42 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., any successor statutes to the foregoing,or any other comparable local,state or federal statute or ordinance pertaining to protection of human health,the environment or natural resources, including without limitation the preservation of wetlands,and all regulations pertaining thereto,as well as applicable judicial or administrative decrees, orders or decisions,authorizations or permits. B. Wetlands. If there are wetlands on the Leased Premises,or if wetlands should develop on the Leased Premises during the Term,Tenant shall strictly comply with and observe all applicable Environmental Laws. 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(which may be granted or withheld in Landlord's sole discretion),and only then in compliance with applicable Environmental Laws. C. Notice of Violation/Release. Tenant shall provide Landlord with prompt written notice upon Tenant's obtaining knowledge of the existence of any Hazardous Substances on, in or under the Leased Premises in violation of Environmental Laws,or of any potential or known release or threat of release of any Hazardous Substances affecting the Leased Premises. D. Survival. This Section shall survive the expiration or other termination of the Lease. "INSURANCE AND INDEMNITY"on Page 8 of the LEASE dated May 1, 1989, is hereby deleted and amended to read as follows: INSURANCE. Tenant agrees to require its contractors,before commencing 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 contractors,a policy or policies of insurance issued by insurance companies authorized to do business in the State of Illinois and in a form satisfactory to Landlord as follows: 2 COVERAGE#1 Workers'Compensation Insurance Policy: Coverage A-To pay promptly when due all compensation and other benefits required of the insured by the workers' compensation law. Coverage B -Employers'Liability: To pay on behalf of the insured with limits not less than One Million and No/100 dollars($1,000,000.00) each accident/occurrence 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. COVERAGE#2 Comprehensive General Liability Policy or Policies(with coverage consistent with ISO CG 0001 (10/98))covering all contractors, subcontractors and all their subcontractors with limits not less than the combined single limit of Four Million and No/100 Dollars($4,000,000.00)for bodily injuries to or death of one(1)or more persons and/or property damage sustained by one(1)or more organizations as a result of any one(1)occurrence, which policy or policies shall not exclude property of Landlord. Landlord shall be added as an Additional Insured under endorsement GL 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. Tenant will, in any event,purchase and maintain during the term hereof; COVERAGE#3 (i) Owners'Landlords'and Tenants'Liability Insurance Policy in the name of Landlord as the insured, with limits of not less than the combined single limit of Four Million and No/100 Dollars($4,000,000.00)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. 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. (ii) As an alternative to the Owners' Landlords' and Tenants' Liability Insurance described above,Tenant may purchase and provide a rider or an 3 endorsement to its existing commercial general liability policy or policies of insurance naming Landlord as an additional insured thereunder,Endorsement GL 2010 or CG 2010,covering the location of Landlord's Facilities including coverage extensions for premises/products/completed operations and contractual liability for Tenant's indemnity obligations hereunder;provided that the limits and coverages in this alternative form of insurance are equal to or greater than the limits and coverages specified above for the Owners' Landlords' and Tenants' Liability Insurance Policy. Landlord reserves the unrestricted right to approve or reject any such alternative form of insurance that may be provided by Tenant. (iii) Automobile Liability in an amount of not less than$1,000,000 per occurrence combined single limit for bodily injury and property damage, covering all owned, leased,rented or non-owned vehicles,which shall include automobile contractual liability coverage. Tenant may substitute lower limits for any of the policies listed above,provided that Tenant maintains an umbrella or excess liability policy or policies which provide a total minimum limit of$1,000,000.00 for automobile liability and $4,000,000.00 for general liability, and that all other requirements of this insurance clause are satisfied by such umbrella or excess policy or policies. There shall be furnished to Landlord,prior to commencing the work above described a certificate of insurance showing the issuance of insurance policies pursuant to the requirements contained in Coverages#1 and#2 of this paragraph which policies shall be held by Tenant and shall be delivered to Landlord upon written request. Insurance coverage as required herein shall be kept in force until all work has been completed. The original policy required under Coverage#3 shall be delivered to Landlord upon execution of this document. The in under Coverag-e#3 shall be kept in force through the term hereof through the above-referred policy,or such subsequent or substitute policy or policies as Tenant may,at its discretion,obtain. 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,coverages and forms of polices as may be required from Tenant and/or its contractors. The paragraph on Page 18 of the Lease dated May 1, 1989,headed"NOTICES" is hereby deleted and amended to read as follows: "All notices to LANDLORD shall be in writing; to Commonwealth Edison Company,c/o Manager of Leasing,Real Estate&Facilities,Three Lincoln Centre—0 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 at 610 Tower Lane, Yorkville, Illinois 60560,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". 4 All of the terms and conditions of the Lease dated May 1, 1989, and Lease Supplement Number One dated May 12, 1994,are incorporated herein by reference and except as expressly modified by this instrument, said terms and conditions shall remain in full force and effect. AUTHORITY TO ACT: This agreement shall be executed for and on behalf of the TENANT pursuant to a resolution adopted by the GEf %�t � �— the TENANT, at a regular meeting held 200 , 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 parties hereto have hereunto set their hands and seals this day of - 20—• LANDLORD: COMMONWEALTH EDISON COMPANY By D.E.Wilson Manager of Leasing Real Estate&Facilities TENANT: CITY OF Y RKVILLE By Title �� 5