1996-32RESOLUTION NO. 96- 32
AUTHORIZING AMENDMENT NO.1 TO THE
COMMUTER STATION DEVELOPMENT AGREEMENT
BETWEEN THE VILLAGE OF BUFFALO GROVE AND METRA
WHEREAS, the Village of Buffalo Grove is a Home Rule unit by virtue of the provisions
of the Constitution of the State of Illinois of 1970; and
WHEREAS, in order to facilitate construction of the Village's Wisconsin Central/ Metra
commuter rail station project, the Village must build upon portions of the Wisconsin Central's
property; and
WHEREAS, the Commuter Station Development Agreement between the Village and
Metra was approved by the Village by Resolution 95 -35 on May 1, 1995 and first amended on
August 7, 1995 and subsequently amended by Resolution 95 -63 on September 11, 1995; and
WHEREAS, Amendment No. 1, attached hereto, will serve as a "Lease for Location of
Fixed Facilities for Public Transportation on Properties of Wisconsin Central, Ltd." and allow
for encroachments of Village facilities upon Wisconsin Central's property;
NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the
Village of Buffalo Grove, Cook and Lake Counties, Illinois that the Village authorizes the
execution of the attached Amendment No. l to the Station Development Agreement between the
Village and Metra and hereby rescinds previous amendments made on August 7, 1995 and
September 11, 1995.
AYES: 4 - Marienthal, Reid, Rubin, Glover
NAPES: 0 - None
ABSENT: 2 - Braiman, Hendricks
PASSED: May 20, 1996
ATTEST:
Villag Clerk
APPROVED: May 20, 1996
APPROVED:
•
•
AMENDMENT NO. 1 TO
THE COMMUTER STATION DEVELOPMENT AGREEMENT
LEASE FOR LOCATION OF FIXED FACILITIES
FOR PUBLIC TRANSPORTATION ON PROPERTIES OF
WISCONSIN CENTRAL, LTD.
This Lease made this 20-th day of NM-ay, , 1996, between the
Village of Buffalo Grove ( "Lessee ") , and the Commuter Rail Division
of the Regional Transportation Authority, a division of an Illinois
municipal corporation ( "Lessor "),
PRELIMINARY STATEMENT
Lessor and Wisconsin Central, Ltd. ( "Railroad ") have entered into
a Master Agreement for the Construction of Fixed Facility dated
August 25, 1995 whereby Lessor leases specific property from
Railroad for use relating to Lessor's commuter rail station sites
( "Master Agreement ") . This Agreement allows Lessor to sublease said
property to Lessee for the construction, operation and maintenance
of the commuter rail station and related facilities (the
"Improvements ").
Lessor and Lessee have entered into a Commuter Station Development
Agreement which governs construction, operation and maintenance of
the Improvements ( "Development Agreement ").
Lessor and Lessee now desire to enter into Amendment No. 1 to the
Development Agreement whereby Lessee shall sublease specific
property from Lessor for the construction, operation and
maintenance of the Improvements.
In consideration of the covenants hereinafter contained to be kept
and performed by Lessee, Lessor hereby subleases to Lessee that
portion of the Railroad's right -of -way depicted and legally
described on Exhibit A attached hereto and made a part hereof (the
"Premises ").
1. Lessee shall pay, in advance, as rental for said Premises the
sum of One Dollar and No /100 ($1.00) for each year of the lease.
Lessee shall also allow Lessor the use of the Improvements for the
term of this lease at an annual charge, payable in advance, of One
Dollar and No /100 ($1.00) for each year of the lease.
2. Lessee accepts the Premises subject to any and all existing
permits, licenses, leases, easements, railroad facilities,
pipelines, telephone, telegraph, communications, power and signal
lines or any other similar facilities, including without limitation
those facilities as are discoverable from station plats or visual
observations by Lessee together with any future installations
thereof, provided however that such future installations shall not,
to the extent within Railroad's control, unreasonably interfere
with Lessee's use of the Premises.
•
•
3. Lessor, its successors and assigns, hereby saves and reserves
on behalf of Lessor and Railroad the right to construct, maintain
and operate a railroad track or tracks located or to be located
upon any part of the Premises; to construct, maintain and use or
permit to be constructed, maintained and used by others any
existing or additional pipe, telephone, telegraph or power
transmission line, or water or sewer systems, or other such
facilities, over, and on or beneath the Premises; to make any
change in grade or location of its railroad or any of its tracks;
and further saving and reserving to Railroad, the right to enter
thereon for any one or more of such purposes; provided,.however,
that neither Lessor nor Railroad's exercise of such rights shall
not interfere with Lessee's or Lessor's rights of possession and
use (as described in Paragraph 4 hereof) with respect to the
Premises.
4. Lessee, its contractors, subcontractors and agents are hereby
granted an irrevocable right -of -entry on the Premises and a license
to construct, inspect, use and maintain said Improvements, all in
accordance with the provisions and procedures contained within the
Development Agreement.
No other buildings, structures, additions, alterations or
improvements shall be erected on or made to the Premises by Lessee
or at the direction of Lessee without the express permission of
Lessor in writing and at the sole cost of Lessee.
5. All survey and recording costs, if any, with respect to said
lease shall be paid by Lessee.
6. Except as provided below, Lessee shall pay all costs
associated with the Improvements on the Premises and shall assure
that no lien or encumbrance is placed on Railroad's property as a
result of any actions or omissions of Lessee, its employees,
agents, contractors, permittees or invitees. Lessee shall not be
responsible for the payment of any real estate taxes or special
assessments assessed against the Premises except to the extent that
real estate taxes or special assessments are assessed as a result
Lessee's permitting the occupancy of all or a portion of the
Premises by a vendor or other third party, in which event Lessee
shall: (a) notify Lessor in writing of the square footage occupied
by such vendor or third party; and (b) collect from such vendor or
third party and remit to the Lessor an amount equal to all real
estate taxes and /or special assessments, including any penalties
accrued for nonpayment by Lessee of taxes due, on that portion of
the Premises occupied by such vendor or third party during such
occupancy. Lessor shall be responsible for payment of any real
estate taxes or special assessments, if any, assessed against the
Premises, provided, however, that Lessor shall not be responsible
for paying any real estate taxes assessed against all or any
portion of the Premises occupied by a vendor or other third party
with the permission of Lessee. In the event State or County
2
authorities require that Lessor or Lessee petition or apply for
exempt real estate tax status with respect to the Improvements on
the Premises, then Lessee, at its own cost and expense, shall
prepare any and all documents and take such other actions necessary
to petition or apply for such tax exempt status. The Lessee shall
protect, hold harmless, defend and indemnify Railroad, Lessor, the
Regional Transportation Authority ( "RTA"), and the Northeast
Illinois Regional Commuter Railroad Corporation ( "NIRCRC") from and
against any penalties, fines, costs and expenses including legal
fees and court costs incurred by the Lessee, caused by, resulting
from, or connected with the assessment of any real estate taxes or
special assessments against that portion of the Premises occupied
by a vendor or third party with the permission of Lessee or the
imposition of any liens or encumbrances against the Premises.
7. The Lessee shall pay for the cost of any license(s) as
required by federal, state or local regulations in order to operate
a commuter parking facility on the premises.
8. The Lessee or its agent shall not permit the existence of any
nuisance on the Premises; shall not create dangerous or hazardous
conditions on the Premises, nor allow dangerous, explosive,
flammable, or combustible materials on the Premises which would
increase or tend to increase the risk of fire; and further, the
Lessee or its agent shall keep, observe and comply with all
federal, state and local regulations, ordinances, and laws having
jurisdiction of the Premises. If, as a result of the Lessee's
occupancy of the Premises hereunder, any such regulations,
ordinance or law is violated, the Lessee shall protect, save
harmless, defend and indemnify Railroad, Lessor, RTA, and NIRCRC
from and against any penalties, fines, costs and expenses including
legal fees and court costs incurred by the Lessee, caused by,
resulting from, or connected with such violation or violations
except to the extent that such violation or violations are
attributable to the intentional, negligent, or willful act or
omission of Lessor, Railroad, NIRCRC, RTA or their employees or
agents.
9. The Lessee or its agent agrees to use its reasonable best
efforts to prevent the occurrence of contamination, hazardous
materials or any related environmental damage or condition on the
Premises during the term of this Lease. Should any contamination
or other environmental condition occur or result from Lessee's use
or occupancy of the Premises, Lessee will be responsible for all
costs associated with its cleanup and any related liability.
Lessee specifically agrees to indemnify, defend and hold harmless
Lessor, Railroad, RTA and NIRCRC from all such damages, costs or
liabilities, including reasonable attorneys' fees, arising from
Lessee's use or occupancy of the Premises except to the extent that
such violation or violations are attributable to the intentional,
negligent, or willful act or omission of Lessor, Railroad, NIRCRC,
RTA or their employees or agents.
3
10. The Lessee and its contractors shall maintain in amounts and
forms satisfactory to Lessor such insurance throughout the term of
the Agreement, either through the purchase of a conventional
insurance policy or, with respect to Lessee, by way of
participation in an intergovernmental agreement providing insurance
or self- insurance in amounts detailed attached hereto and marked
Exhibit B with a standard additional insured endorsement naming
Lessor, Railroad and NIRCRC. Such policies of insurance or self -
insurance agreement shall include, but not be limited to, coverage
for comprehensive general liability in the amount of $2,500,000 per
occurrence, property damage, including an extended perils coverage
endorsement in the amount of $150,000, automobile liability in the
amount of $300,000 and statutory worker's compensation and
employer's liability coverages. This policy shall be primary over
any other valued and collectible insurance. In the event the
Premises is damaged by fire or other casualty Lessor shall have no
obligation to repair such damage. At Lessees option, it may either
repair such damages at its sole cost and expense or terminate this
lease.
Lessee's general contractors involved in the construction or
maintenance of the Improvements on the Premises shall provide
insurance with a limit of liability for death and bodily injuries
and property damage of not less than the current Metra requirements
as detailed attached hereto and marked Exhibit C with a standard
additional insured endorsement naming Lessor, Railroad and NIRCRC.
The Lessee, with respect to the general contractors which Lessee
hires, shall furnish a Certificate of Insurance executed by the
insurance carrier stating that the insurance is in force and will
remain in effect throughout the term of the construction or
maintenance project. The insurance hereinbefore specified shall be
carried until all work required to be performed is satisfactorily
completed and formally accepted.
11. Except to the extent attributable to the intentional,
negligent, or willful act or omission of Lessor, Railroad, NIRCRC
or RTA or their employees or agents, Lessee shall indemnify,
defend, and hold harmless Lessor, Railroad, RTA, NIRCRC, and their
directors, employees and agents from and against, and assume all
liability and expense from and against, losses, claims, demands,
payments (including attorneys' fees), suits, actions and judgements
of every nature and description brought or recovered against the
Railroad, Lessor, RTA or NIRCRC, their directors, officers,
employees or agents, by reason of, arising out of or connected with
the use or occupancy of the Premises.
Notwithstanding the foregoing, nothing herein contained is to
be construed as an indemnification for any loss, damage, injury or
death arising out of or caused, in whole or in part, by negligence
of Railroad or the Lessor, RTA, NIRCRC their respective directors,
officers, employees or agents to the extent such loss, damage,
injury or death is proportionally attributable to the negligence of
0
Lessor or Railroad.
12. If, because of any act or omission of Lessee or as a result of
Lessee's use of the Premises, any mechanic's lien, charge or order
for the payment of money (collectively a "Lien ") shall be filed
against any portion of the Premises, Lessee shall at its own cost
and expense, cause the same to be discharged of record within
thirty (30) days after written notice from Lessor to Lessee of the
filing thereof or, within the same thirty (30) day period, furnish
a bond or other collateral satisfactory to Lessor to indemnify
Lessor against the Lien. Lessee shall indemnify, defend, and save
harmless Lessor against and from all costs, liabilities, suits,
penalties, claims and demands, including legal fees and court
costs, resulting therefrom.
13. This Lease shall be effective as of the date written above,
and shall continue in force and effect for a period of 20 years.
Lessee shall have the right to renew this Lease, for one additional
10 year term ( "Lease Term ") by giving written notice thereof to the
Lessor at least ninety (90) days prior to the end of the initial 20
year term.
14. Lessor reserves the right to suspend or terminate all or part
of the Lease Term if Lessee is in violation of the terms of this
Agreement by giving Lessee a written notice specifying the alleged
violation at least sixty (60) days prior to the effective date of
the suspension or termination. The lease shall be suspended or
terminated on the effective date stated in the written notice if
the Lessee has not either cured the violation during the notice
period or has commenced action to cure the violation and has
notified the Lessor of such action writing and the time needed to
complete it.
15. Should Lessee retain possession or use of the Premises or any
part thereof after the termination of this lease by Lessor or as
otherwise provided for in this Agreement, Lessee shall at the
option of Lessor become a Lessee from month to month only upon each
and all of the terms herein provided as may be applicable to such
month to month lease, and any such holding over shall not
constitute an extension of this lease; provided, however, that
Lessee shall pay Lessor all damages, incidental or consequential as
well as direct, sustained by Lessor, the Railroad, the RTA or
NIRCRC by reason of such retention of possession or use. The
provisions of this paragraph do not exclude the Lessor's rights of
reentry or any other rights to recover use and possession of the
Premises afforded Lessor by law.
16. Upon termination of this Lease, the rights of the parties with
respect to the Improvements shall be controlled and regulated by
the provisions of the Development Agreement.
5
17. This Agreement shall bind and inure to the benefit of the
respective successors or assigns of Lessor and Lessee, if any.
Lessee shall not assign this lease or any interest therein, or
sublet the same without the written consent of Lessor.
18. All notices hereunder to be given by either party shall
conform to requirements set forth in the Development Agreement.
19. The invalidity or unenforceability of any provision of this
Lease shall not affect or impair any other provision.
20. Both parties agree that no change or modification to this
Amendment shall be of any force or effect unless such change or
modification is dated after the date of this Agreement, reduced to
writing, executed by both parties and attached to and made a part
of this Amendment.
21. To the extent any provisions hereunder are inconsistent with
any provision of the Development Agreement, the provisions of the
Development Agreement shall govern.
22. This Agreement shall be construed and enforced in accordance
with the laws of the State of Illinois.
23. No delay or omission by any of the parties hereto in
exercising any rights or powers occurring upon the failure of
performance or non - compliance under the terms of this Agreement
shall impair any such right or power or be construed to be a waiver
thereof. A waiver by any party hereto of the covenants, conditions
or agreements contained herein shall not be construed to be a
waiver of any subsequent breach thereof or any other covenant,
condition or agreement contained herein.
24. To the extent applicable to the Premises, Lessee agrees to be
bound by and assume all of the obligations of Lessor under the
terms and conditions of Section 12 of the Master Agreement
provided, however, that Lessee shall not be required to assume the
obligations of Lessor under Section 12(c) of the Master Agreement
to the extent any losses, claims, demands, payments, suits, actions
and judgements as set forth in Section 12(c) are attributable to
the intentional, negligent, or willful act or omission of Lessor,
Railroad, NIRCRC, RTA or their employees or agents. In the event
of a conflict between a provision or provisions of Section 12 of
the Master Agreement and a provision or provisions of this
Agreement the provision or provisions of the Master Agreement shall
take precedence and control. Notwithstanding anything to the
contrary contained in this Agreement, in the event Railroad
terminates Lessor's lease of the Premises under the terms and
conditions of the Master Agreement then this lease shall
automatically terminate.
6
je
0 -1,-,''. 0
25. At any time and for any reason during the Lease Term, Lessor
shall be permitted to extend the length of the Premises at its then
existing width to the extent that Lessor extends the length of the
platform adjoining the Premises within the Railroad's right -of -way
( "Extended Premises ") after having received the prior written
consent of the Lessee, which consent shall not be unreasonably
withheld. Such Extended Premises shall be subject to all the terms,
covenants and provisions set forth in this Agreement as if the
Extended Premises was included in the original Premises. A new or
amended Exhibit A describing and delineating the Extended Premises
shall be prepared and executed by Lessor and Lessee and made a part
of this Agreement. Notwithstanding anything to the contrary set
forth in this Agreement, nothing in this Section shall have the
effect of extending the Lease Term beyond the term provided for in
this Agreement.
26. Lessor agrees that the indemnification provisions set forth in
paragraph 19 of Part II of the Development Agreement shall exclude
damages to property or injury or death to any person or persons as
set forth therein to the extent such injury, death or damage is
attributable to the intentional, negligent, or willful act or
omission of Lessor, Railroad, NIRCRC, RTA or their employees or
agents.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first hereinabove
written.
LESSOR: LESSEE:
THE COMMUTER
THE REGIONAL
AUTHORIT
By
Phi
Ex iv
ATTEST:
RAIL DIVISION OF
TRANSPORTATION
agano
Director
Assistant Secretary
c: \flocs \lea- llf \bgleas.cln 3/20/96
7
VI:
By
Tit
ATTEST:
By: (2
Title: C+Ea.-
Mara
REQUISITION NUMBER
s i
CONSTRUCTION INSURANCE REQUIREMENTS
EXHIBIT E!;p
SPECIFICATION NUMBER
The Contractor shall take out and maintain during the 11% of this contract, the following insurance as specified by the insertion of policy limits and
such other insurance as the Northeast Illinois Regional Commuter Railroad Corporation DB /A Metra/Metropoliten Rail may from time to time require.
Additional Insured shall be as follows: NORTHEAST OIS REGI COMMUTER RAILRO D C PORATION B/ METRAM
RAIL and the COMMUTER RAIL DIVISION of the egional Transportation �utiRority, tie �egiona
The Contractor shall not commence work herein until he has obtained the required insurance and has received approval of such insurance by Metra:
Certificates of Insurance indicating amounts and coverages in force shall be furnished to insureds, within ten (10) calendar days after award of
contract.
All policies are in effect at this time and will not be canceled, modified, limited or allowed to expire without renewal until 30 days written notice
has been given to Metro. Such notice shall be sent by certified mail to Metra, care of the Risk Management Director, 14th Floor, 547 W. Jackson,
Chicago, IL 60661.
The Contractor's policy will insure all liabilities assumed by the contractor under the provisions of the Hold Harmless and Indemnity Clause contained
in the contract. The Contractor shall be responsible for arranging that all subcontractors maintain the necessary insurance requirements.
GENERAL
FINANCIAL RATING
POLICY
OF
HOLDER
OR BETTER
TYPE OF COVERAGE
RATING
01!--oft
BETTER
A'P,',- * d By Best's
Key Rmtiq Gods
AMOUNT REQUIRED
1. WOWLERS' COMPENSATION
Comew A - ah4iU ry
ceaaase 0 - •
. 100 , 0 00.0 0
2. COMPREHENSIVE GENERAL LIABBITY (BROAD FORM):
Bodily b*ry Lia6ity Nt PAputy Damps Limbity
ICOMBNM)
>) 2 .500 .000.00
Each Ooosranos
• 5,000,000.00
A Mrts
3. EXCESS COMPREHENSIVE GENERAL LIABILITY - EXCESS OF
PRIMARY LIMrr3 121
Bey h*&Y A Ropaty Demass (COMBINED)
"
• —N/A
Each Ocoarswe
• N/A
Aaveoate
4. AUTOMOBILE �LIABILITY:
Soft y Lnbity & %Wwty Danr6. Liability
(COMBINED)
300,000.00
Combiwd SiwN Limit
5. OWNER'S PROTECTIVE LIABILITY:
i N/A
Bodily hiw Lmbity a: hapwty D-ow Liability .
IcoMSaiEDl
Each 000ar wa
N/A
Aavewts
S. `RAILROAD PROTECTIVE LIABLITY:
Soft b+iw Liability a: ftopwty DearBs Lbb&h
( COMBNED)
• N/A
Each 000ars,o.
N/A
Acarsoate
7. EXCESS RAILROAD PROTECTIVE LIABILITY:
• N/A
Each Ocoerrrwe
• N/A
Aaareoate
S. BUILDER'S RISK INSURANCE
9WgAW"9W N A
S. PERFORMANCEWAYMENT BOND
11
1o. oTHERNSuRANcE Property Insurance w/Extanded
Peri
s Endorsement
s 150,000.00
Additional Insured shall be as follows: NORTHEAST OIS REGI COMMUTER RAILRO D C PORATION B/ METRAM
RAIL and the COMMUTER RAIL DIVISION of the egional Transportation �utiRority, tie �egiona
The Contractor shall not commence work herein until he has obtained the required insurance and has received approval of such insurance by Metra:
Certificates of Insurance indicating amounts and coverages in force shall be furnished to insureds, within ten (10) calendar days after award of
contract.
All policies are in effect at this time and will not be canceled, modified, limited or allowed to expire without renewal until 30 days written notice
has been given to Metro. Such notice shall be sent by certified mail to Metra, care of the Risk Management Director, 14th Floor, 547 W. Jackson,
Chicago, IL 60661.
The Contractor's policy will insure all liabilities assumed by the contractor under the provisions of the Hold Harmless and Indemnity Clause contained
in the contract. The Contractor shall be responsible for arranging that all subcontractors maintain the necessary insurance requirements.
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