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HomeMy WebLinkAbout82-0916 Big Timber Station F ' • r . 8vZ—o91ca LEASE OF STATIONS AND STATION GROUNDS THIS LEASE, made this 16th day of September , 1982 , by and between RICHARD B. OGILVIE, not personally but as Trustee of the Property of CHICAGO, MILWAUKEE, ST. PAUL and PACIFIC RAILROAD COMPANY, Debtor, ( "Lessor" ) , and the Regional Transportation Authority , a public body politic and a municipal corporation of the State of Illinois ( "Lessee" ) . In consideration of the covenants and agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Lessor hereby leases to Lessee and Lessee leases from Lessor the premises , as more fully described in paragraph 1, on the terms and conditions as provided herein. 1. Leased Premises. The premises leased hereunder ( "Premises" ) shall consist of: (a) the real property delineated on Exhibit A; and (b) all of the property, facilities , fixtures , equipment, and improvements which are located on such real property, as described in Exhibit B; provided that: (a ) any real property delineated on Exhibit A which is leased to third parties on the date hereof, or in which third parties have a possessory interest on the date hereof , shall not be part of the Premises (except that the foregoing exclusion shall not apply to the property which is subject to the leases set forth in Exhibit L to the Transition Agreement (attached as Exhibit C) ) ; and (b) any and all air rights appertaining to the Premises (except for such air rights as are necessary to the operation of the Commuter Service) are not part of the Premises. In the event that the Authority initiates Commuter Service operations to Almora , Illinois the Milwaukee shall lease to the Authority such space as the Milwaukee has along the right-of-way at Almora and as the Authority may require for a commuter platform; provided that the use of such space for such platform shall not interfere with freight or intercity passenger operations at Almora. Any such space at Almora shall become part of the Premises at such time as the Milwaukee provides such space to the Authority. The Premises are leased subject to all existing mort- gages , encumbrances , licenses , conditions , covenants , easements, restrictions and rights-of-way, whether or not of record, and other matters of record, if any, and to such matters as may be disclosed by an inspection or survey and to the Leases set forth in Exhibit L to the Transition Agreement. Lessor has conducted an investigation and has found no document which causes Lessor to believe that there are leases , mortgages , encumbrances , licenses, conditions, covenants , easements , restrictions , right-of-ways or other matters affecting the Premises which will prevent Lessee from using the Premises in - 2 - f tom- 4 the same manner as Lessor while Lessor was using the Premises for Commuter Service. . 2. Lease Term. The term of tnis Lease shall commence on the Commencement Date, as defined in the Transition Agreement, and shall terminate on December 31 , 1984 ; provided that, if the Trackage Agreement (attached as Exhibit D) does not terminate on December 31 , 1984, the term of this Lease shall terminate on such earlier or later date as the Trackage Agreement shall terminate; provided further that the term of this Lease may be sooner terminated as provided herein. The parties' rights and obligations which arise upon the termination of this Lease shall survive such termination. 3. Rent. Lessee shall pay as rent for the Premises ("Rent" ) any and all amounts , claims , charges or impositions which: (a) may arise on account of the use , condition , operation or maintenance of the Premises or may be levied , assessed or imposed upon or charged to the Premises; and (b) accrue during and are attributable to the term of the Lease; provided that Rent shall not include the payments which Lessor is specifically obliged to pay or may incur pursuant to paragraphs 3, 14 , 16 and 18 of this Lease, and general real estate taxes levied against the Premises shall be governed by Article VI of Exhibit D. Without limiting the foregoing , Rent shall include: (a) all taxes (other than general real estate - 3 - ow. taxes) , assessments, water and sewer charges, utilities , maintenance costs , and any other amounts required to be paid by Lessee under this Lease; (b) interest accruing on the foregoing amounts, claims , charges or impositions; and (c) in the event Lessor pays Rent (excluding costs of maintenance , repair , or operation of the Premises) , interest on such payment at the rate specified in section 6. 6 of Exhibit D from the date of Lessor 's payment until the date of payment by Lessee. Lessee may take the benefit of the provisions of any statute or ordinance permitting any assessment to be paid over a period of years; provided that if Lessor is at any time required to pay such assessment in full by law or by reason of a sale of the Premises, Lessee shall pay Lessee 's portion of such assessment immediately. Lessee shall arrange for all sewer , water and utility services to be separately metered to Lessee ; if any services cannot be separately metered to Lessee, Lessee shall pay a proportion of all charges jointly metered, which proportion shall be Lessee ' s proportion of the total use of such services. If at any time during the term of this Lease the method of taxation prevailing at the commencement of the term hereof shall be altered so that any new tax, assessment, levy , imposi- tion or charge shall be imposed upon Lessor on account of the Premises, then such taxes, assessments , levies, impositions or charges , shall be allocated to Lessee in such amount as - 4 - necessary so that Lessor is in the same position as Lessor would be in if Lessor did not own the Premises , and such amount shall be deemed to be included in Rent for the purposes hereof. Rent does not include any federal or state income taxes, federal or state excess profit taxes, or franchise or capital stock taxes of Lessor . All Rent required by this Lease to be paid by Lessee shall be paid by Lessee directly to the entity to whom such Rent is due . Lessee shall allow Lessor to inspect, during normal business hours and at Lessee ' s offices , Lessee ' s records relating to payments of Rent. Unless otherwise provided herein, all payments of Rent due to Lessor are due on the fifteenth day of the month following the month of receipt of Lessor ' s invoice. All other payments of Rent are due in accordance with the terms of the applicable invoice or contractual arrangement. 4. Use of Premises. The Premises shall be used and occupied for the sole purpose of providing rail passenger commuter service, together with uses incidental thereto and other purposes specified herein, and Lessee shall not use or permit the Premises to be used for any other purposes. Lessee shall not store or keep or allow any other person to store or keep, in any quantity or amount whatsoever , - 5 • on or within the Premises, any extrahazardous, highly explosive, or highly combustible article except where special facilities exist for such storage. Lessee shall not use or occupy the Premises, or permit the Premises to be used or occupied, contrary to any governmental statute, rule, order , ordinance, requirement or regulation applicable thereto; or in any manner which would violate any certificate of occupancy affecting the same; or which would cause structural injury to the improve- ments; or which would constitute a public or private nuisance or waste. Lessee shall, at its sole cost and expense , promptly comply with all laws, ordinances and government regulations and requirements now in force or which may hereafter be in force and with the requirements of any board of fire underwriters or other similar bodies now or hereafter constituted, relating to or affecting the condition, use or occupancy of the Premises; provided that Lessee may elect not to effect alterations, additions or improvements required by such requirements or regulations and, in such event, Lessee shall use the Premises only to the extent permitted by the applicable requirements or regulations, but such election shall not alter or affect Lessee 's obligations hereunder to maintain the Premises. 5. Maintenance , Repairs and Alterations. Lessee shall accept the Premises in the condition existing on the Commencement Date , and Lessor makes no representation or warranty as to such condition. Lessee shall , at Lessee ' s sole - 6 - r , I � cost and expense, maintain the Premises and every part thereof in the condition existing on the Commencement Date , reasonable wear and tear excepted. All services to the Premises shall be provided by Lessee at Lessee ' s expense including but not limited to snow and ice removal, garbage and trash collection, and lawn services. Lessee shall keep the Premises clean, noth inside and outside, at its own expense , and shall remove all refuse from the Premises. Lessee shall not burn any materials or rubbish of any description upon the Premises. Lessee shall keep all accumulated rubbish in covered containers and shall have same removed regularly. Lessee shall neither make nor allow to be made any structural alterations , additions or improvements to or of the Premises or any part thereof prior to entering a separate agreement with Lessor with respect to such alterations , additions or improvements. In the event Lessor consents to the making of any alterations , additions or improvements to the Premises by Lessee , the same shall be made by Lessee at Lessee 's sole cost and expense. Upon the expiration or sooner termination of this Lease , Lessee shall, at the option of and upon written demand by Lessor , given at least thirty (30) days prior to the end of this Lease , at Lessee 's sole cost and expense , forthwith and with all due diligence , remove all alterations, additions or improvements made by Lessee, designated by Lessor to oe removed, and Lessee shall , forthwith - 7 - • and with all due diligence, at its sole cost and expense, repair any damage to the Premises by such removal. Upon the termination of this Lease , Lessee shall return the Premises to Lessor in the same condition as on the Commencement Date, except for : (a) reasonable wear and tear ; (b) facilities repaired or paid for in accordance with paragraph 8 ; and (c) improvements made pursuant to this paragraph 5. 6. Insurance. Lessee shall procure and maintain policies of insurance, at its own cost and expense , which policies shall name Lessor as an additional insured and which shall provide the following insurance coverage: Third party liability coverage covering injury to or death of persons and damage to property in any one occurrence in an amount of not less than $50, 000, 000 . 00 (Fifty Million Dollars) with a maximum deductible of $2,000, 000 .00 (Two Million Dollars) per occurrence. Such coverage shall include all employees and shall insure Lessor and Lessee against all wor►cmen ' s compensation and Federal Employer ' s Liability Act claims. - 8 - The aforesaid insurance shall not be subject to cancellation or reduction of coverage without 30 days prior notice to Lessor . Certificates of the insurance policies (or binders thereon) , together with evidence of payment of the premiums thereon, shall be deposited with Lessor at the Commencement Date; renewals thereof shall be deposited with Lessor not less than thirty (30) days prior to the end of the term of such coverage. All such policies shall be written as primary policies not contributing with and not in excess of coverage which Lessor may carry. 7. Security Deposit. The escrow account established under the Trackage Agreement shall serve as the security deposit under this Lease. Lessor may, pursuant to the terms of the Escrow Agreement, withdraw from such escrow account: (a) amounts necessary to pay premiums overdue by more than 15 days on the insurance coverage required in paragraph 6 ; (b) amounts necessary to pay the costs of securing a bond during any contest of the validity of a lien resulting from acts or omissions of Lessee , if Lessee fails to obtain such bond within 30 - 9 - days after receipt of actual notice of the imposition of such lien; (c) amounts necessary to pay the costs of removal of a lien resulting from acts or omissions of Lessee in the event such lien is determined to be valid after any contest thereof , if Lessee fails to secure the removal of such lien within 30 days of a final judicial order determining such lien to be valid; (d) amounts necessary to pay taxes or assessments which are to be paid by Lessee pursuant to the terms hereof, if Lessee fails to pay such taxes or assessments within 30 days after such tax or assessment is due and payable; (e) amounts necessary in order to restore the Premises to the condition specified in paragraph 5 upon the termination of this Lease, if Lessee fails to return the Premises to Lessor in such condition within 30 days after such termination. - 10 - • Lessor ' s withdrawal of funds from the escrow account for the foregoing purposes shall: (a) constitute payment of the amount due to the extent of the withdrawal; and (b) if the balance in the escrow account is sufficient to pay in full the amounts specified in subparagraphs (a) - (e) , constitute a waiver by Lessor of the right to terminate this Lease on account of such matters. 8. Damage or Destruction. If any portion of the Premises is damaged or destroyed by fire or other casualty: (a) Lessee may at its option repair or replace such portion of the Premises in such manner that the repaired or replaced portion of the Premises shall be at least as serviceable as the damaged or destroyed portion of the Premises; (b) in the event Lessee does not repair or replace the portion of the Premises pursuant to subparagraph (a) above, Lessor at its option and at Lessee ' s expense may repair or replace such portion of the Premises in such manner as the repaired or replaced portion of the Premises shall be as serviceable as - 11 - the damaged or destroyed portion of the Premises; (c) in the event neither Lessee nor Lessor have undertaken to repair or replace the portion of the Premises pursuant to subparagraphs (a) and (b) above as of the termination of this Lease, Lessee shall pay Lessor at the termination of this Lease an amount in damages equal to the decrease in value of the portion of the Premises. Lessor shall have no obligation to carry insurance of any kind on the Premises or on Lessee ' s furniture and furnishings or on any fixtures or equipment removable by Lessee under the provisions of this Lease , and Lessor shall not be obligated to make any repairs thereto or to replace the same. 9 . Eminent Domain. If any portion or portions of the Premises shall be taken under power of eminent domain, Lessee shall have the right to terminate this Lease with respect to such portion or portions as of the date possession is taken by the condemning authority , only if such condemnation interferes in a material way with the Authority 's use of the Premises. No award of any total or partial taking shall be apportioned, and Lessee hereby assigns to Lessor any award which may be made in - 12 - such taking or condemnation, together with any or all rights of Lessee now or hereafter arising in or to the same or any part thereof; provided, however , that nothing contained herein shall be deemed to give Lessor any interest in or require Lessee to assign to Lessor any award made to Lessee for the taking of personal property and trade fixtures belonging to Lessee and removable by Lessee at the expiration of the term hereof as provided hereunder or the interruption of or damage to Lessee ' s business. 10. Assignment and Subletting . Lessee shall not, without Lessor ' s prior written consent (a) assign , transfer , convey, mortgage, pledge or encumber this Lease or any interest under it, except that Lessee may assign its rights hereunder to the Northeast Illinois Regional Commuter Railroad Corporation; (b) sublet the Premises or any part thereof; or (c) permit the use or occupancy of the Premises or any part thereof by anyone other than Lessee or other than as provided herein. No per- mitted assignment or subletting shall relieve Lessee of its covenants and agreements hereunder and Lessee shall continue to be liable as a principal and not as a guarantor or surety, to the same extent as though no assignment or subletting had been made. 11. Subordination. The right or interest created by this Lease shall be subject and subordinate to the continuing - 13 - lien of the First Mortgage dated as of January 1 , 1944 , executed by Chicago, Milwaukee, St. Paul and Pacific Railroad Company to Continental Illinois National Bank and Trust Company of Chicago, Trustee , and to the lien of the General Mortgage dated as of January 1 , 1944 , executed by Chicago, Milwaukee, St. Paul and Pacific Railroad Company to Harris Trust and Savings Bank, Trustee and, forthwith upon written notice delivered to Lessee , this Lease shall further be and become subject and subordinate to any and all other mortgages or deeds of trust now existing , or which may hereafter be executed covering the Premises , for the full amount of all advances made or to be made thereunder and without regard to the time or character of such advances , together with interest thereon and subject to all the terms and provisions thereof. Lessee agrees to execute , acknowledge and deliver upon request any and all documents or instruments requested by Lessor necessary or proper to assure the subordination of this Lease to any such mortgages , deeds of trust or leasehold estates. Lessee hereby attorns and agrees to attorn to any person, firm or corporation purchasing or otherwise acquiring the Premises , at any sale or other proceeding or pursuant to the exercise of any other rights, powers or remedies under such mortgages or deeds of trust or leasehold estate as if such person, firm or corporation had been named as Lessor herein; provided that the provisions of paragraph 15 are satisfied. Lessee agrees to execute , - 14 - acknowledge and deliver in recordable form to any proposed mortgagee or purchaser , or to Lessor, or to such other person designated by Lessor, a certificate certifying (if such be the case) that this Lease is in full force and effect and that there are no defenses or offsets thereto , or, if Lessee claims any defenses or offsets , stating those claimed by Lessee . It is expressly understood and agreed that any such statement may be relied upon by any prospective purchaser or encumbrancer of all or any portion of the real property of which the Premises are a a p rt. Lessee ' s delivery of such statement within ten (10) business days after Lessor ' s written request therefor shall be conclusive upon Lessee that this Lease is in full force and effect without modification except as may be represented by Lessee and that there are no uncured defaults in Lessor ' s performance hereunder . 12. Defaults and Remedies. Lessee further agrees that any one or more of the following events shall be considered events of default as that term is used herein: (a) Lessee shall default in any payments of Rent required to be made by Lessee hereunder (except with respect to the costs of maintenance, repair or operation of the Premises) , and such default shall continue for thirty (30) - 15 - days after notice thereof in writing to Lessee; (b) Lessee shall fail to contest the validity of any lien or claimed lien on the Premises resulting from actions or omissions of Lessee and give security to Lessor to insure payment thereof, or having commenced to contest the same and having given such security, shall fail to prosecute such contest with diligence, or shall fail to have the same released or satisfy any judgment rendered thereon, and such default continues for thirty (30) days after notice thereof in writing to Lessee; (c) Lessee shall fail to procure and main- tain the insurance coverage required in paragraph 6 , and such failure shall continue for thirty (30) days after notice thereof in writing to Lessee; or (d) Lessee shall, notwithstanding subparagraph (a) and upon the termination of this Lease, fail to return the Premises to Lessor in - 16 - accordance with the provisions of paragraph 5 , and such failure shall continue for thirty (30) days after notice thereof in writing to Lesser. Except as provided in paragraph 7, upon the occurrence of any one or more of such events of default, Lessor may terminate this Lease with respect to the portion of the Premises with respect to which Lessee is in default and may terminate this Lease in its entirety in the event of the default specified in subparagraph (c) above. Lessee hereby grants to Lessor the full and free right to enter into and upon such portion of the Premises in such event with or without process of law and to repossess such portion of the Premises as Lessor ' s former estate and to expel or remove Lessee and any others who may be occupying or within such portion of the Premises and to remove all fixtures and chattels therefrom without being deemed in any manner guilty of trespass, eviction, or forcible entry or detainer , without incurring any liability for any damage resulting therefrom and without relinquishing Lessor ' s rights to Rent or any other right given to Lessor hereunder or by operation of law. Except as provided in paragraph 7, no remedy herein or otherwise conferred upon or reserved to Lessor shall be considered to exclude or suspend any other remedy, including - 17 - but not limited to a suit for damages, but the same shall be cumulative and shall be in addition to every other remedy given hereunder , or now or hereafter existing at law or in equity or by statute , and every power and remedy given by this Lease to Lessor may be exercised from time to time and so often as occasion may arise or as may be deemed expedient. No delay or omission of Lessor to exercise any right or power arising from any default shall impair any such right or power or be construed to be a waiver of any such default or any acquiescence therein. No waiver of any breach of any of the covenants of this Lease shall be construed, taken or held to be a waiver of any other breach or waiver , acquiescence in or consent to any further or succeeding breach of the same covenant. Lessor ' s consent to or approval of any act by Lessee shall not be deemed to render unnecessary the obtaining of Lessor 's consent to or approval of any subsequent act of Lessee, whether or not similar to the act consented to or approved. No act or thing done by Lessor or by Lessor ' s agents during the Term of this Lease shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such surrender of the Premises shall be valid unless in writing and signed by Lessor . No employee of Lessor or of Lessor ' s agents shall have any power to accept the keys to any portion of the Premises prior to the termination of this Lease and the delivery of the keys to any such employee shall not operate as - 18 - a termination of the Lease or surrender of the Premises. The acceptance by Lessor of any payment of Rent or other charges hereunder after the termination by Lessor of this Lease or of Lessee ' s right to possession hereunder shall not, in the absence of agreement in writing to the contrary by Lessor , be deemed to restore this Lease. 12A. Termination by Lessee. Lessee may terminate this Lease with respect to the entire Premises as of the date Lessee abandons or discontinues the operation of the Commuter Service . 13. Liens and Encumbrances. Lessee shall not do any act which shall in any way encumber the title of Lessor in and to the Premises, nor shall the interest or estate of Lessor in the Premises be in any way subject to any claim by way of lien or encumbrance , arising by operation of law which is made applicable by reason of Lessee 's actions or omissions or by virtue of any express or implied contract by Lessee. Any claim to, or lien upon, the Premises arising from any act or omission of Lessee shall accrue only against the leasehold estate of Lessee and shall be subject and subordinate to the paramount title and rights of Lessor in and to the Premises. Lessee shall not, except as otherwise provided herein, grant any easements, servitudes or commercial licenses to any person without the prior written consent of Lessor , which consent shall not be unreasonably withheld. - 19 Lessee shall not permit the Premises to become subject to any mechanics ' , laborers ' or materialmen ' s lien on account of labor or material furnished to Lessee or claimed to have been furnished to Lessee in connection with work of any charac- ter performed or claimed to have been performed on the Premises by, or at the direction or sufferance of , Lessee. In the event that a mechanic 's or materialman' s lien attaches to the Premises in violation hereof , Lessee shall immediately discharge such lien by bond or otherwise. Lessee shall have the right to contest in good faith and with reasonable diligence, the validity of any such lien or claimed lien if Lessee shall have provided to Lessor such bond; provided further, however , that on final determination of the lien or claim for lien, Lessee shall immediately pay any judgment rendered, with all proper costs and charges, and shall have the lien released and any judgment satisfied. 14 . Reservation of Rights. Without limiting 9 ti g any other rights reserved or available to Lessor under this Lease , at law or in equity, Lessor, on behalf of itself and its agents reserves the following rights, to be exercised at Lessor 's election: (a) To install , or grant to a third party P Y the right to install , automatic bank teller facilities on the Premises; - 20 - (b) To inspect the Premises; (c) To show the Premises to prospective purchasers, mortgagees , or other persons having a legitimate interest in viewing the same; and (d) To obtain access to that portion of the Premises located at Western Avenue, Morton Grove , Glenview, Libertyville , Grays Lake, Round Lake, Fox Lake, Franklin Park , Bensenville , Itasca , Roselle, Bartlett, and Elgin for purposes of maintaining and operating the communication and signal facilities at such locations. provided that, in exercising such rights, Lessor shall not cause or allow any interference with Lessee ' s use of the Premises. Lessor may enter upon the Premises for any and all of the said purposes without being deemed guilty of an eviction of Lessee 's use or possession of the Premises. 15. Sale of Premises. In the event of any transfer or transfers of Lessor ' s interest in the Premises , other than a transfer for security purposes only, the transferor shall be - 21 - • automatically relieved of any and all obligations and liabili- ties on the part of Lessor occurring from and after the date of such transfer ; provided that the transferee assumes such obligations and liabilities occurring from and after the date of such transfer; and provided further that any funds in the hands of Lessor at the time of such transfer in which Lessee has an interest shall be credited or turned over to the transferee and any amounts then due and payable to Lessee by Lessor under any provisions of this Lease shall be paid to Lessee, it being intended hereby that the covenants and obligations contained in this Lease on the part of Lessor shall, subject as aforesaid, be binding on Lessor , its successors and assigns, only during and in respect of their respective successive periods of ownership. Lessor shall advise any transferee of Lessee 's rights, title and interests in, to and under this Lease. Lessor shall provide 30 days prior notice to Lessee of any transfer of Lessor ' s interest in the Premises. Lessee agrees to look solely to Lessor ' s estate and property in the Premises (or the proceeds thereof) for the satisfaction of Lessee 's remedies for the collection of a judgment or other judicial process requiring the payment of money by Lessor in the event of any default by Lessor hereunder , and no other property or assets of Lessor shall be subject to levy , execution or other enforcement procedure for - 22 - the satisfaction of Lessee 's remedies under or with respect to this Lease, the relationship of Lessor and Lessee under this Lease , or Lessee 's use or occupancy of the Premises; provided that nothing herein shall affect Lessee ' s remedies under or with respect to other agreements between Lessor and Lessee. 16. Hold Harmless and Waiver. Except as otherwise provided herein or by law, Lessee shall protect, defend, indemnify and hold harmless Lessor against and from any and all claims arising due to occurences during the term of this Lease from Lessee ' s use of the Premises or from the conduct of its business on the Premises or from any activity, work , or other things, done, permitted or suffered by the Lessee in or about the Premises, or from claims arising due to occurences during the term of this Lease from any act or omission of the Lessee , its officers, agents, employees, guests, or invitees in connection with the condition, use, operation, or maintenance of the Premises, and from all costs, attorneys ' fees , costs of in-house counsel and liabilities incurred in or about the defense of any such claim or any action or proceeding brought thereon and in any action or proceeding brought against Lessor by reason of such claim. Lessee, upon notice from Lessor , shall defend the same at Lessee ' s expense. Except as provided herein or by law, Lessor or its agents shall not be liable for any loss or damage to persons or property resulting from any claim arising due to occurrences during the term of this Lease - 23 - 4 • in connection with the condition, use , operation or maintenance of the Premises. Lessee shall give prompt notice to Lessor in case of casualty or accidents on the Premises. Each party shall protect, defend, indemnify and hold harmless the other against and from any and all claims arising from any breach or default in the performance of any obligation on such party 's part to be performed under the terms of this Lease. Lessor shall protect, defend, indemnify and hold harm- less Lessee against and from any and all claims arising due to occurrences during the term of this Lease from Lessor ' s (or Lessor ' s officers' , agents ' , employees ' , guests ' , or invitees ' ) use of or presence on the Premises. Lessor , upon notice from Lessee, shall defend the same at Lessor ' s expense . Lessor shall give prompt notice to Lessee in case of casualty or accident on the Premises . 17. News Stands and Advertising . Lessor shall assign to Lessee, effective on the first day of this Lease Term, the license pertaining to all news stands on the Premises. Lessor shall assign to Lessee , effective on the first day of this Lease Term, Lessor ' s contracts pertaining to advertising on the Premises. Lessor shall provide to Lessee such further assurances and execute such further instruments as may be required by Lessee to assure , complete and evidence the full - 24 - and effective transfer of the licenses , contracts, rights and interests transferred pursuant to this paragraph . 18. Miscellaneous. All notices to or demands upon Lessor or Lessee desired or required to be given under any of the provisions hereof, shall be in writing . Any notices or demands from Lessor to Lessee shall be deemed to have been duly and sufficiently given if a copy thereof has been mailed by United States registered or certified mail , return receipt requested, in an envelope properly stamped and addressed to Lessee as follows: Contract Manager , Regional Transportation Authority, 300 North State Street, Chicago, Illinois , 60610 , or at such other address as Lessee may from time to time furnish by written notice to Lessor and any notices or demands from Lessee to Lessor shall be deemed to have been duly and sufficiently given if mailed by United States registered or certified mail , return receipt requested, in an envelope properly stamped and addressed to Lessor as follows : Trustee , Chicago , Milwaukee, St. Paul and Pacific Railroad Company , 874 Union Station Building, 516 West Jackson Boulevard, Chicago, Illinois , 60606, or at such other address as Lessor may from time to time furnish by written notice to Lessee, with a copy to any and all mortgagees of the Premises as to the identity and address of which Lessee shall have received written notice. The effective date of such notice shall be three (3) days after delivery of the same to the United States Postal Service. - 25 - Neither this Lease nor any memorandum thereof shall be recorded by either party. Time is of the essence of this Lease , and all provi- sions herein relating thereto shall be strictly construed . Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership, or of joint venture by the parties hereto, it being understood and agreed that no provision contained in this Lease nor any acts of the parties hereto shall be deemed to create any relation- ship other than the relationship of Lessor and Lessee. The captions of this Lease are for convenience only and are not to be construed as part of this Lease and shall not be construed as defining or limiting in any way the scope or intent of the provisions hereof. If any term or provision of this Lease shall to any extent be held invalid or unenforceable, the remaining terms and provisions of this Lease shall not be affected thereby, if such terms and provisions would continue to conform with the purposes of this Lease and the requirements of applicable law. This lease shall be construes and enforced in accord- ance with the laws of the State of Illinois. - 26 - • All of the covenants, agreements, conditions and undertakings contained in this Lease shall extend and inure to and be binding upon the successors and permitted assigns of the respective parties hereto, the same as if they were in every case specifically named, and wherever in this Lease reference is made to either of the parties hereto, it shall be held to include and apply to, wherever applicable, the successors and permitted assigns of such party. Nothing herein contained shall be construed to grant or confer upon any person or persons , firm, corporation or governmental authority , other than the parties hereto, their successors and permitted assigns, any right, claim or privilege by virtue of any covenant, agreement , condition or undertaking in this Lease contained. Each party warrants that it has had no dealings with any broker or agent in connection with this Lease. Each party covenants to pay, hold harmless and indemnify the other from and against any and all cost, expense or liability for any compensation, commissions and charges claimed by any broker or agent of such party with respect to this Lease or the negotiation thereof . Lessee may install a sign on each of the property and facilities subject to this Lease , which sign shall identify the Lessee as Lessee of such property and facilities. Lessee shall install no other exterior sign without Lessor ' s prior written approval of detailed plans and specifications therefor . - 27 - Notwithstanding any other provision of this Lease , if Lessee pays the Rent and observes and performs all the covenants, terms and conditions hereof, Lessee shall peaceably and quietly hold and enjoy the Premises for the term of the Lease without interruption by Lessor or any person or persons claiming by, through or under Lessor. Neither Lessor nor Lessee shall be liable to the other or any third party for delays , interruptions or the failure to perform its obligations under this Lease due to causes beyond their reasonable control, including acts of God; acts of civil or military authority; any act, delay or failure to act on the part of any governmental authority or agency (other than Lessee) ; insurrection or riot; fires; strikes; work stoppages or other labor difficulties; car shortages; wrecks; major equipment q pment breakdowns; failure or delay beyond the control of the Lessor or the Lessee in obtaining necessary labor , materials or manufacturing facilities or acts of the other party. In any eminent domain proceeding prosecuted by Lessee with respect to the Premises (or a portion thereof) , the Premises (or such portion thereof) shall be treated as if they were in the condition required at the termination of the Lease. This Lease and Exhibits A, B, C, and D attached hereto constitute the entire agreement between the parties hereto with respect to the Premises, and no prior agreement 9 or understanding with regard to any such matter shall be effective for any purpose; provided that the terms of the Fixed Facilities Agreements which apply to the Premises shall remain in effect to the extent specified in the Transition Agreement. None of the covenants, terms or conditions of this Lease , to be Kept and performed by either party, shall in any manner be altered, waived, modified or changed except by a written instrument, duly signed, acknowledged and delivered by the other party . This Lease is executed by Richard B. Ogilvie, not as an individual , but solely in his capacity as Trustee of the Property of the Chicago, Milwaukee , St. Paul and Pacific Rail- road Company, Debtor. After approval by the Reorganization Court the Lessor waives any right pursuant to section 77 of the Bankruptcy Act or any other federal law to reject or disaffirm this Lease. All obligations of the Lessee which may, from time to time, be incurred by it under provisions of the Regional Transportation Authority Act which authorized secured, unsecured, short term, long term, equipment trust certificate or other borrowing shall be superior to and have priority over any and all obligations of the Lessee under this Lease . Lessor warrants and represents that it has not paid and agrees not to pay any bonus , commission, fee or gratuity to any employee or official of the Lessee for the purposes of obtaining this Lease. No officer or employee of Lessee shall be admitted to any financial share of this Lease or to any direct or indirect financial benefit arising therefrom. It is understood and agreed that the parties hereto are subject to, and that to the extent applicable, will comply with all federal and state laws and regulations relating to equal employment opportunity for all persons without regard to race, color , creed, sex, or national origin, and those federal and state laws and regulations relating to non-segregated facilities, minority business enterprises , the employment of veterans and handicapped persons, including , without limitation, Executive Order No. 11246 , 41 CFR Part 60-741 et seq. , Executive Order No . 11701 , and 41 CFR Part 60-60-250 . 1 et seq. and 49 CFR Part 165 , and the Illinois Human Rights Act, Ill. Rev. Stat. , ch. 68 , §91-101 et seq. - 30 - •• IN WITNESS WHEREOF, LESSOR and LESSEE have executed this Lease, in quadruplicate, as of the date first hereinabove set forth. LESSEE: REGIONAL TRANSPORTATION AUTHORITY By LESSOR: • RICHARD B. OGILVIE, TRUSTEE OF THE PROPERTY OF CHICAGO, MILWAUKEE, ST. AUL AND PACIFIC RAILROAD CO A Y, DEBTOR fe) - 31 - i _t t 11`� j+' ? r,r• ; . _ October 12, 1982 •;:_. NMMORAND �I s ' i ' 1�j T0: Leo Nelson, City Manager '�` :'ii a FROM: Daniel P. Blondin, Assistant Corporation Counsel SECT: Lease Agreement with RTA for National Street Parking I have reviewed the attached lease with the RTA and wou ld conclude that, with some clarification, the agreement is acceptable. The proposed lease is substantially different from that originally suggested by the Milwaukee Road to the City. Under the proposed arrange- ment the RTA would lease the property from the Milwaukee Road and would then lease the same property to the City. Under paragraph 7, the proposed lease would be " • "subject to all the terms and conditions (of the agreement g ment between the RTA and the Milwaukee Rd.) as though such terms and conditions were set forth in full in this Lease Agreement." I do not believe this language would require us to perform any of the RTA's obligations under their agreement with the Milwaukee Road. Rather this language limits the proposed agreement to the estate leased and the authority granted to the RTA. Several provisions of the RTA--Milwaukee Road contract require prior approval by the Milwaukee Road of any alterations or improvements or before the RTA may sub-let the property. Pursuant to paragraph 10 of their contract, the RTA will remain primarily liable to the Milwaukee Road even after the property is sub-let. Our proposed agreement with the RTA should be clarified to state that the City is not assuming the RTA's obligations to the Milwaukee Road. 1 • - • • Leo Nelson -2- October 12, 1982 Paragraph 6 of the proposed agreement requires the City to indemnify and save RTA harmless for claims arising in connection with our use of the parking lot facility, as well as any and all alterations and improvements. This is substantially different from the indemnification clauses in the proposed Milwaukee Road--City of Elgin lease. This clause, as proposed, is acceptable. DPB nr Attachments cc: Erwin W. Jentsch Cow,jt✓£ la - RESOLUTION ADOPTED URGING FUNDING BY THE REGIONAL TRANSPORTATION AUTHORITY OF THE MILWAUKEE ROAD COMMUTER SERVICE Councilwoman Nelson made a motion, seconded by Councilman Gilliam, to adopt the aforement tined resolution. Yeas : Councilmen Gilliam, Hansen, Kirkland, Nelson,' Schmidt , Waters and Mayor Verbic . Nays : None . RESOLUTION URGING FUNDING BY THE REGIONAL TRANSPORTATION AUI'IIORITY OF MILWAUKL•E ROAD COMMUTER SERVICE WHEREAS, the Northwest Suburban Mass Transit District represents the transportation interests of eleven member communities in the northwest suburban area including the City of Elgin; and WHEREAS, commuter rail transportation is an integral part of the I. istrict's transportation plan; and WHEREAS, the Milwaukee Road Railroad provides corf,luter rail service to numerous corniunities in the District including the City of Elgin and to the greater metropolitan area; and WHEREAS, the Northern Suburban Mass Transit District has traditionally .nlorsed commuter rail service as a high regional priority; and till EAS, the City of Elgin concurs in said endorsement; and WHEREAS, the Regional Transportation Authority has not allocated and is arrears in funds to the Milwaukee Road. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that the Regional Transportation Authority is hereby urged to reestablish full funding and payment of all funds due to the hl:.lwaukee Road in order to continue full service at reasonable fares; BE IT FUR1HIiR RESOLVED that the City of Elgin urges the General Assembly to promptly take the necessary steps to meet the curre nt financial crisis. s/ Richard L . Verbic • T:ichard L. Verbic, Mayor i'r-'sented: December 9, 1981 AdJpted: December 9, 1981 :ate: Yeas 7 Nays 0 • y.:corded: Attest: s / Marie Yearman Marie Yea rma n_ (' r_ tY 1 mi., sm.