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97-176 Resolution No. 97-176 RESOLUTION AUTHORIZING EXECUTION OF A CONSTRUCTION AND USE AGREEMENT WITH METRA BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Robert 0. Malm, Interim City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a construction and use agreement on behalf of the City of Elgin with Metra for expansion of the Big Timber station commuter parking lot, a copy of which is attached hereto and made a part hereof by reference. sl Kevin Kelly Kevin Kelly, Mayor Presented: June 25, 1997 Adopted: June 25, 1997 Vote: Yeas 7 Nays 0 Attest: sl Dolonna Mecum Dolonna Mecum, City Clerk CONSTRUCTION AND USE AGREEMENT THIS AGREEMENT, made this 3Q—" day of , 1997, by and between the Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation ("Metra") and the City of Elgin, an Illinois municipal corporation ("City"). Metra and City are hereinafter sometimes individually referred to as a "Party" and jointly referred to as the "Parties". RECITALS A. Metra desires to enter upon the premises of City for the purpose of constructing improvements to an existing commuter parking lot ("Existing Lot") and constructing an expansion of the Existing Lot ("Expanded Lot") all on property owned by the City and located at the southwest comer of the intersection of Big Timber Road and North Lyle Avenue delineated on Exhibit "A" and legally described on Exhibit "B", which Exhibits are attached to and made a part of this Agreement ("Premises"). The Existing Lot and the Expanded Lot are hereinafter sometimes jointly referred to as the "Parking Lot". B. City is willing to permit Metra to enter upon such Premises to construct said improvements on the Parking Lot upon the terms and conditions set forth below. NOW, THEREFORE, for and in consideration of the Recitals set forth above, which are hereby incorporated in this Agreement, the agreements, covenants and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted by the Parties, Metra and City hereby agree as follows: 1. City hereby agrees to permit Metra to enter upon the Premises for the purpose of constructing improvements to the Existing Lot and constructing Phase I and Phase II of the Expanded Lot ("Project"). 2. Metra, at its sole cost and expense, shall construct the Project substantially in accordance with the pre-approved plans and specifications prepared by Bollinger, Lach & Associates and dated December 30, 1996. 3. Metra agrees to indemnify, defend and hold harmless City its officers, agents and employees, from and against any and all liabilities, losses, damages, costs, payments and expenses of every kind and nature as a result of claims, demands, actions, suits, proceedings, judgments or settlements, arising out of or occurring in connection with the construction activities of Metra on the Premises pursuant to the terms of this Agreement, except to the extent such liabilities, losses, damages, costs, payments and expenses are caused by the acts, omissions or negligence of City. City agrees to notify Metra in writing within thirty (30) days of the date City becomes aware of any claim which may fall within this indemnity provision. ElginCon.Agt:June 19,1997 1 4. With respect to the Project, Metra shall self-insure or require its contractors or subcontractors to procure the insurance coverage set forth on Exhibit "C" attached to and made a part of this Agreement. The insurance specified shall be carried until all work required to be performed under the terms of this Agreement is completed. Metra, its contractors or subcontractors shall furnish to City certificates of insurance evidencing the insurance coverage required herein and showing City as an additional party insured. 5. As consideration for Metra's construction of the Project, City agrees that the Premises shall be used as a commuter parking lot and that City shall at all times provide a means of access to and from the Premises for use by commuters and Metra's employees or contractors for a period beginning on the date which the Metra Fixed Facilities, as hereinafter defined, are first used in revenue service, as such date is determined by Metra, ("Commencement Date") and ending forty (40) years from the Commencement Date ("Use Term"). Metra shall own all the improvements constructed or installed by Metra on the Premises for the Project, including without limitation the asphalt, curbing and light fixtures and all other materials used to improve the Premises and related or appurtenant facilities, equipment or fixtures ("Metra Fixed Facilities"). Failure of City or City's permittee, licensee or lessee to allow the Premises to be used as a commuter parking lot for a period of sixty (60) consecutive days during the Use Term shall be considered a City default under the terms of this Agreement. If this Agreement is terminated for any reason by City and Metra has not defaulted under the terms and conditions of this Agreement or City defaults under the terms and conditions of this Agreement and, as a result of such City default, Metra is forced to terminate this Agreement, Metra shall be compensated by City for the Metra Fixed Facilities for the remainder of the (a) Use Term; or (b) the end of the actual useful life of such Metra Fixed Facilities, as such useful life is determined by Metra, if the actual useful life is less than forty (40) years ("Use Period"), in an amount equal to the average of the original cost and the replacement cost of each such Metra Fixed Facility taken out of service because of termination, reduced by that percentage of the Use Period which has expired before such termination. Such payment shall be made in full within sixty (60) days after City's termination of this Agreement or interest at a rate of one and one half percent (1 1/2%) per month shall accrue on any unpaid balances due. In the event this Agreement is terminated for any reason by Metra and City has not defaulted under the terms and conditions of this Agreement or Metra defaults under the terms and conditions of this Agreement and, as a result of such Metra default, City is forced to terminate this Agreement, City shall not be required to compensate Metra for the Metra Fixed Facilities and Metra shall convey such Metra Fixed Facilities to City; provided, however, that Metra may remove from the Premises those Metra Fixed Facilities which do not interfere with the structural integrity of the Parking Lot. In the event Metra. removes Metra Fixed Facilities from the Premises, Metra shall restore the Premises to as good a condition or to a better condition that that which existed on the date of this Agreement. This Section shall survive construction of the Project by Metra. 6. Metra shall operate and manage, or caused to be operated and managed, the Parking Lot during the Use Term in accordance with established Metra standards for the operation and maintenance of commuter parking lots and such other terms and conditions reasonably acceptable to the Parties. Metra agrees to indemnify, defend and hold harmless City its officers, agents and employees, from and against any and all liabilities, losses, damages, ElginCon.Agt:June 19,1997 2 costs, payments and expenses of every kind and nature as a result of claims, demands, actions, suits, proceedings, judgments or settlements, arising out of or occurring in connection with Metra's operation and management of the Parking Lot pursuant to the terms of this Agreement, except to the extent such liabilities, losses, damages, costs, payments and expenses are caused by the acts, omissions or negligence of City or arise or result from the acts of persons over which Metra has no authority or control during hours which Metra is not providing commuter services to and from the City as such hours are established by Metra's published train schedules. Notwithstanding anything to the contrary contained in this Agreement, Metra shall not be liable for losses, damages, costs, payments or expenses of any kind or nature resulting from claims, demands, actions, suits, proceedings, judgments or settlements, arising out of or occurring in connection with the use by the public or the condition of North Lyle Avenue lying easterly of the Premises and hereby specifically excluded from the Premises. City agrees to notify Metra in writing within thirty (30) days of the date City becomes aware of any claim which may fall within this indemnity provision.Metra's operation and management of the Parking Lot pursuant to this Section shall satisfy the City's obligation to use and operate the Premises as a commuter parking lot under Section 5 of this Agreement but only with respect to that portion of the Use Term that Metra operates and manages the Parking Lot. 7. All notices, demands, elections, and other instruments required or permitted to be given or made by either Party upon the other under the terms of this Agreement or any statute shall be in writing. Such communications shall be deemed to have been sufficiently served if sent by commercial courier, certified or registered mail, return receipt requested, with proper postage prepaid or sent by facsimile transmission by Metra or City at the respective addresses shown below or to such other party or address as either Party may from time to time furnish to the other in writing. Such notices, demands, elections and other instruments shall be considered as delivered to recipient on the day of delivery if sent by commercial courier, on the second business day after deposit in the U.S. Mail if sent by certified or registered mail or on the first business day after successful transmission if sent by facsimile transmission. (a) Notices to Metra shall be sent to: Commuter Rail Division 547 W. Jackson Boulevard Chicago, Illinois 60661 Attn: Director, Real Estate & Contract Management Phone: (312) 322-8010 Fax: (312) 322-4288 (b) Notices to City shall be sent to: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attn: Corporation Counsel Phone: (847) 931-5655 Fax: (847) 931-5665 ElginCon.Agt:June 19,1997 3 8. This Agreement and the rights and obligations accruing hereunder are binding upon the Parties and their respective legal representatives, successors and assigns. This Agreement may not be assigned except upon the prior written approval of Metra. No waiver of any obligation or default of City shall be implied from omission by Metra to take any action on account of such obligation or default and no express waiver shall affect any obligation or default other than the obligation or default specified in the express waiver and then only for the time and to the extent therein stated. Whenever the context requires or permits, the singular shall include the plural, the plural shall include the singular and the masculine, feminine and neuter shall be freely interchangeable. In the event the time for performance hereunder falls on a Saturday, Sunday or holiday, the actual time for performance shall be the next business day. This Agreement shall be governed by the internal laws of the State of Illinois. This Agreement, together with the exhibits attached hereto (all of which are incorporated herein by this reference), constitutes the entire Agreement between the Parties with respect to the subject matter hereof. If any provision of this Agreement, or any paragraph, sentence, clause, phrase or word or the application thereof is held invalid, the remainder of this Agreement shall be construed as if such invalid part were never included and this Agreement shall be and remain valid and enforceable to the fullest extent permitted by law provided that the Agreement, in its entirety as so reconstituted, does not represent a material change to the rights or obligations of the Parties. In the event of any conflict or inconsistency between the terms set forth in the body of this Agreement and the terms set forth in any exhibit hereto, the terms set forth in such exhibit shall govern and control. ElginCon.Agt:June 19,1997 4 . 1 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by their duly authorized officers on the day and year first written above. THE COMMUTER RAIL DIVISION OF CITY OF ELGIN: THE REGIONAL TRANSPORTATION AUTHORITY: By: By: .�� Phil' tccYtiva�lrector l Its: '�' ATTEST: ATTEST: E�)& I— � Assistant Secretary Its: ElginCon,A$t:June 19,1997 5 EXHIBIT A TO THAT CERTAIN CONSTRUCTION AND USE AGREEMENT -400 uou 00 n oo -7 737 0 zjz 7., oxTD lip; i�b. -T Sto qw!, ;7 0'.".iXw EXHIBIT "B" LEGAL DESCRIPTION OF PREMISES THAT PART OF THE SOUTHEAST QUARTER OF SECTION 4, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE POINT OF INTERSECTION OF THE CENTER LINE OF THE SLEEPY HOLLOW ROAD WITH THE NORTHERLY RIGHT-OF-WAY LINE OF THE CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY; THENCE SOUTH 89 DEGREES 19 MINUTES WEST ALONG SAID NORTHERLY RIGHT-OF-WAY LINE 1,446.7 FEET TO THE ORIGINAL CENTER LINE OF THE BIG TIMBER ROAD, FORMERLY HUNTLEY ROAD; THENCE NORTH 56 DEGREES 49 MINUTES WEST ALONG SAID CENTER LINE 1,889.29 FEET TO THE NORTHWEST CORNER OF A TRACT OF LAND CONVEYED TO LORA E. TRAEGER BY DEED DATED AUGUST 30, 1961 AND RECORDED SEPTEMBER 7, 1961 IN BOOK 2098, PAGE 408 AS DOCUMENT NUMBER 958219 FOR THE POINT OF BEGINNING; THENCE SOUTH 16 DEGREES 13 MINUTES WEST ALONG THE WEST LINE OF SAID TRAEGER LANDS 811.64 FEET TO THE NORTHERLY LINE OF SAID RAILROAD RIGHT-OF-WAY; THENCE NORTH 79 DEGREES 43 MINUTES WEST ALONG SAID NORTHERLY RIGHT-OF-WAY LINE 510 FEET; THENCE NORTH 16 DEGREES 13 MINUTES EAST PARALLEL TO THE WEST LINE OF THE TRAEGER LANDS AS AFORESAID 1019.46 FEET TO THE CENTER LINE OF BIG TIMBER ROAD, FORMERLY HUNTLEY ROAD; THENCE SOUTH 56 DEGREES 49 MINUTES EAST ALONG SAID CENTER LINE 529.99 FEET TO THE POINT OF BEGINNING, IN THE TOWNSHIP OF ELGIN, KANE COUNTY, ILLINOIS, EXCEPTING THEREFROM ANY PORTION THEREOF FALLING IN NORTH LYLE AVENUE. ElginCon.Agt:June 19,1997 K �° �� CONSTRUCTION INS' LANCE REQUIREMENTS - EXHIBIT C REQUISITION NUMBER 38439 SPECIFICATION NUMBER 2766 dated December, 1996 The Contractor shall take out and maintain during the life of this contract, the following insurance as specified by the insertion of policy limits and other Insurance as the Northeast Illinois Regional Commuter Railroad Corporation DIBIA Metra/Metropolitan Rail may from time to time require. GENERAL FINANCIAL RATING POLICY HOLD- OF ER RATING OR BETTER TYPE OF COVERAGE OF OR As Published By Bes. AMOUNT REQUIRED BETTER rs Key Rating Guide 1 WORKERS'COMPENSATION Coverage A-Statutory _ Coverage B-f $100,000.00 2. COMPREHENSIVE GENERAL LIABILITY(BROAD FORM): $500.000.00 Bodily Injury Liability&Property Damage Liability Each Occurrence (COMBINED) I:WA Aggregate 3. EXCESSCOMPREHENSIVEGENERALLIABILITY-EXCESSOF $NIA PRIMARY LIMITS(2) Each Occurrence Bodily Injury 6 Property Damage(COMBINED) $WA Aggregate 4. AUTOMOBILE LIABILITY: Bodily Injury Liability&Property Damage Liability $500,000.00 (COMBINED) Combined Slagle Urn 5. OWNER'S PROTECTIVE LIABILITY' $WA Bodily Injury Liability b Property Damage Liability Each Occurrence (COMBINED) $WA Aggrag 6. RAILROAD PROTECTIVE LIABILITY: fWA Bodily Injury Liability 6 Property Damage Liability Each Oceurrsnn (COMBINED) $WA Aggregate 7 EXCESS RAILROAD PROTECTIVE LIABILITY SHIA Each Occurrence $WA AA gregate 6. BUILDER'S RISK INSURANCE , $WA 9. PERFORMANCEIPAYMENT BOND I $Full Value of Contract 10. OTHER INSURANCE $WA Additional Insured shall be as follows: NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION D/BIA METRAIMETROPOLITAN RAIL and the COMMUTER RAIL DMSION 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 Metra. 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. 1 City of Elgin Agenda Item No. C (0-1) June 19, 1997 TO: Mayor and Members of the City Council FROM: Robert O. Malm, Interim City Manager SUBJECT: Agreement with Metra for Expansion of Big Timber Station Commuter Parking Lot PURPOSE To present for city council consideration a proposed agree- ment with Metra to allow Metra to expand its Big Timber station commuter parking lot onto adjacent property owned by the city. BACKGROUND The Metra Task Force has previously identified the expansion of the Big Timber station commuter parking lot as a proposed improvement for Metra facilities within the city. The city owns property adjacent to the Metra parking lot consisting of approximately 10.659 acres. This property was acquired in 1979 by the city through IDOT and the federal government with an urban mass transmit grant. Attached is a proposed construction and use agreement between the city and Metra. The. agreement provides that Metra shall construct at its sole cost and expense the expanded parking lot -facilities . Phase I of the project provides for the construction of 120 parking spaces on the east side of the improvement project site with sidewalk along Lyle Avenue, lighting and storm sewer. Phase II of the project includes the remaining portion of the property and provides for the construction of 295 parking spaces, lighting and completion of drainage improvements. This phase of the project will be scheduled when the parking addition in Phase I is fully utilized. A site plan depicting the expanded parking lot facilities is attached to the agreement as an exhibit. The construction plans for the project have been reviewed by the city's engineering department. The city would agree to allow the property to be used as a commuter parking lot for a period of 40 years. Metra is required to operate and manage the parking lot during the term of the agreement. Agreement with Metra June 19, 1997 Page 2 COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED The proposed parking lot expansion has been recommended by the Metra Task Force. FINANCIAL IMPACT None. ` LEGAL IMPACT None. ALTERNATIVES 1 . Approval of the construction and use agreement with Metra to provide for the expansion of the Big Timber station commuter parking lot. 2 . No expansion of the Big Timber commuter station parking lot. RECOMMENDATION It is recommended that the council approve the proposed construction and use agreement with Metra to provide for the expansion of the Big Timber station commuter parking lot. Respectfully submitted, 01A4 r Robert 0. Malm Interim City Manager t A C,�1025 � Call TO o • e r i TT t ;, ;a Q® MY Twm am 5 COMMUTER PARKING FACILITY Ct r�M eFR TOTAL ACRES iQ0 40.35 q� I � 536 � a REMAINDER / SUBJECT I PROPERTY 30.253 ' I _ I ST. P, ' a P. 510, ARTISTIC a R.R. — CARTON Scale I',=400