99-213 Resolution No. 99-213
RESOLUTION
AUTHORIZING EXECUTION OF A RIGHT OF ENTRY AGREEMENT WITH THE
COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION
AUTHORITY FOR THE KIMBALL STREET DAM PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,
ILLINOIS, that Joyce A. Parker, City Manager, and Dolonna
Mecum, City Clerk, be and are hereby authorized and directed
to execute a Right of Entry Agreement on behalf of the City of
Elgin with the Commuter Rail Division of the Regional
Transportation Authority (Metra) to permit entry onto the
property of Metra for the purpose of making repairs to the
Kimball Street Dam, a copy of which is attached hereto and
made a part hereof by reference .
s/ Ed Schock
Ed Schock, Mayor
Presented: July 28, 1999
Adopted: July 28, 1999
Vote : Yeas 5 Nays 0
Attest :
s/ Dolonna Mecum
Dolonna Mecum, City Clerk
jetia_
547 W. Jackson Blvd. Chicago, Illinois 60661 Telephone:312-322-6900 TTY# 1-312-322-6774
August 24, 1999
Mr. Philip A. Schrieber,E.I.T.
Collins Engineers, Inc.
211 West Wacker Drive - 8th Floor
Chicago,Illinois 60606-1217
Subject: Right of Entry No. M30310
Kimball Street Dam
Elgin, Illinois
•
Dear Mr.Schrieber:
Attached for your records is a fully executed original of Right of Entry Agreement No. M30310. This
Agreement allows employees of Collins Engineers to enter upon Metra property located is the vicinity of the
Kimball Street Dam in Elgin,Illinois to make repairs to the Dam. You are reminded that a Metra flagman
must be present whenever you are working on Metra property. There may be a need for a Metra signal
maintainer. You are to contact Jack Rabens (312-322-4145)to secure the services of the flagman as well as
the signal maintainer.
A preconstruction meeting must be arranged with Metra to outline the exact scope of work and discuss how
the work will be done and what type of equipment will be located on Metra right of way. No men or
equipment will be allowed loser than 25 feet from any track unless specifically authorized by Matra. Metra
will impose work windows if deemed necessary. A construction barrier fence(plastic mesh)should be erected
to prevent men and equipment from fouling Metres tracks.
Access to Metra's signal bungalow must be provided at all times. Metra must locate all underground signal,
cable and/or wires prior to the commencement of any work on its property.
If necessary,after repairs are complete, the riprap along the west bank below the darn should be replaced as
part of this project.
Sincere ,
- .✓
e. W. Bu 'am, Director
'a ff - of Real Estate and Contract Management
::jh
cc: F. Leonard
W. Tupper
M. Smith
J. Pebler
Metra is the registered service mark for the Northeast Illinois Regional Commuter Railroad Corporation.
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M30310 3 1 0
RIGHT OF ENTRY AGREEMENT
ALL DISTRICTS
THIS AGREEMENT, made this of day of 19 by and between '
the Commuter Rail Division of the Regional Transportati Authority, a division of an Illinois
municipal corporation ("Metra") and City of Elgin ("Indemnitor"). Metra and Indemnitor are
hereinafter sometimes individually referred to as a "Party" and jointly referred to as the "Parties".
PRELIMINARY STATEMENT
Indemnitor desires to enter upon that portion of Metra's property located in the vicinity of the
Kimball Street Dam, Elgin, Illinois ("Premises") for the purpose of malting repairs to the Kimball
Street Dam,EISg��Illinois (",Permitted Activities"). See attached Exhibit A for drawing
identifying guch Metro ' Premises".
NOW,THEREFORE,for and in consideration of the above stated recitals which are by this
reference hereby incorporated into this Agreement and the mutual promises and agreements set forth
below, the sufficiency of which are hereby acknowledged by the Parties, Metra and Indemnitor agree
as follows:
1. Metra hereby agrees to permit Indemnitor to enter upon the Premises for a period of
nine (9) months, commencing on the effective date of this agreement, to conduct the Permitted
Activities and for no other purpose whatsoever subject to the terms and conditions set forth in this
Agreement. The term of this agreement may be extended by mutual agreement of the Parties as
evidenced in writing.
2. As one of the considerations for this Right of Entry, Indemnitor agrees to pay to
Metra the sum of$500.00 for the cost of preparing this Agreement, payable in advance.
3. Indemnitor agrees to reimburse Metra for all costs and expenses incurred in
connection with the use of Metra's personnel and equipment as a direct result of the Permitted Activi-
ties.
4. To the fullest extent permitted by law, Indemnitor hereby assumes and agrees to
release, acquit, waive any rights against and forever discharge Metra, the Regional Transportation
Authority ("RTA"), and the Northeast Illinois Regional Commuter Railroad Corporation
("NIRCRC"), their respective directors, administrators, officers, employees, agents, successors,
assigns and all other persons, firms and corporations acting on behalf of or with the authority of
Metra,from and against any and all claims, demands or liabilities, including but not limited to court
costs and attorneys'fees, imposed upon them by law or otherwise of every kind, nature and character
on account of personal injuries, including death at any time resulting therefrom, and on account of
damage to or destruction of property arising from any accident or incident which may occur to or be
incurred by Indemnitor, its employees,'officers, agents and all other persons acting on their behalf
while on the Premises or any other Metra property for the purposes set forth in this Agreement
KOEFannJ a May 17.1999 • 1
whether or not such injuries or damages are caused by the actions, omissions or negligence of Metra,
RTA or NIRCRC or their respective directors, officers, agents or employees or any other cause or
causes. Notwithstanding anything in this Agreement to the contrary, the waivers and releases
contained in this paragraph shall survive termination of this Agreement.
•
5. To the fullest extent permitted by law, Indemnitor agrees to indemnify, defend and
hold harmless Metra, the RTA,the NIRCRC,their respective directors, officers, agents, employees,
successors, assigns and all other persons, firms and corporations acting on behalf of or with the
authority of Metra, from and against any and all liabilities, losses, damages, costs, payments and
expenses of every kind and nature, including but not limited to court costs, attorneys' fees and
disbursements as a result of claims, demands, actions, suits, proceedings,judgments or settlements,
arising out of or in any way relating to or occurring in connection with the Permitted Activities or the
use or condition of the Premises used pursuant to the terms of this Agreement whether or not such
injuries or damages are caused by the actions, omissions or negligence of Metra, the RTA or the
NIRCRC or their respective directors, officers, agents or employees or any other cause or causes.
Indemnitor agrees to notify Metra in writing within thirty (30) days of the date Indemnitor becomes
aware of any claim which may fall within this indemnity provision. Indemnitor further agrees to
defend Metra, the RTA, and the NIRCRC, their respective directors, officers, agents and employees
against any claims,suits, actions or proceedings filed against any of them with respect to the subject
matter of this indemnity provision, whether such claims, suits, actions or proceedings are rightfully
or wrongfully made or filed; provided, however, that Metra may elect to participate in the defense
thereof at its own expense or may, at its own expense, employ attorneys of its own selection to
appear and defend the same on behalf of Metra, the RTA, the NIRCRC, and their respective direc-
tors, officers, agents or employees. Indemnitor shall not enter into any compromise or settlement of
any such claims, suits, actions or proceedings without the consent of Metra, which consent shall not
be unreasonably withheld_ Notwithstanding anything in this Agreement to the contrary, the indemni-
ties contained in this paragraph shall survive termination of this Agreement and the indemnification
and hold harmless provisions set forth in this Agreement shall not be construed as an indemnification
or hold harmless against and from the negligence of Metra, the RTA or the NIRCRC with respect .
to any construction work performed by Indemnitor or those performing on behalf of or with the
authority of Indemnitor to the extent that such is in violation of the Illinois Construction Contract
Indemnification for Negligence Act, 740 XI.CS 35/0.01 et seq.
6. Prior to entering upon the Premises, Indemnitor agrees to furnish insurance in form
and in such amounts as required by Metra's Risk Management Department (312-322-699I) and shall
deliver to Metra's Risk Management Department certificates of insurance or such other documenta-
tion acceptable to Metra's Risk Management Department evidencing the acquisition of the required
insurance.
7. Upon completion of the Permitted Activities or upon termination as provided in this
Agreement, Indemnitor shall, at its sole cost and expense, restore the Premises to the same or to a
better condition than that which existed prior to commencement of Indemnitor's activities on the
Premises.
Rotvm,.A.1:Mai 17,1999 2
•
8. Indemnitor further agrees to notify Metra's Police Communication Center at (312)
322-2800 and the Milwaukee District Engineering Department at (312)322-4145 when performing
activities for the purposes set forth in this Agreement seventy-two (72) hours in advance of
IndPmnitor's entrance upon the Premises or any other Metra property in said District.
9. Indemnitor agrees that any authorized representative of Metra has full authority
concerning the operation of the railroad and Indernnitor agrees to comply with the recommendations
of the authorized representatives of Metra having jurisdiction over the Premises relative to railroad
operations and safety regulations.
10. Indemnitor agrees that a Railroad flagman may be required whenever Indemnitor is
on the Premises or any other Metra property for the purposes set forth herein, the cost of which will
be borne by Indem,nitor.
11. Metra may terminate this Agreement at any time by giving Indemnitor ten(10) days
•p▪ rior written notice of its intention to so terminate. •
12. The Permitted Activities shall be performed at Indemnitor's sole cost and expense and
shall at all times be conducted in a good workmanlike, safe and sanitary manner and in accordance
with all applicable federal, state and Iocal Iaws, ordinances and regulations. Indemnitor shall take all
reasonable safety precautions (such as.covering of borings, installation of barricades and warning
signs) to adequately secure the site. Indemnitor shall not place, keep, store or otherwise permit to
be placed, kept or stored on-the Premises any equipment or materials except during such time as
Indemnitor's employees, agents, contractor's or subcontractors are physically present and conducting
activities permitted under this Agreement.
13. Indemnitor's activities on the Premises shall be conducted in a manner so as not to
prevent or unreasonably interfere with use and enjoyment of the Premises by Metra, its employees,
agents or permittees, for the purpose(s) to which the Premises is now, or may hereinafter be,
committed by Metra.
14. Any rights to the Premises not specifically granted to Indemnitor herein, are reserved
to Metra, its successors and assigns.
15. All payments required to be made by Indemnitor to Metra under the terms, conditions
or provisions of this Agreement shall be made within sixty (60) days of Indemnitor's receipt of any
demand or invoice from Metra evidencing the amount of the indebtedness due. Payments not made
within said sixty(60)day period shall accrue interest at a rate of one and one half percent(1 'A%) per
month or the highest amount permitted by Illinois law, whichever is less, from the date payment is
due until paid.
16. No waiver of any obligation or default of Indernitor 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
RcE7..�May 171 3
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then only for the time and to the extent therein stated. Section captions used in this Agreement are
for convenience only and shall not affect the construction of this Agreement. 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_ This Agreement and the rights and
obligations accruing hereunder are binding upon the successors and assigns of Metra and Indemnitor.
This Agreement shall be governed by the internal laws of the State of Illinois. This Agreement,
together with the Exhibits attached hereto, 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 such exclusion does not unfairly
prejudice the rights of either Party to this Agreement. 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.
17. 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 Municipality at the respective addresses shown below
or to such other party or address as either Parry 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 mall or on the first business day after successful
transmission if sent by facsimile transmission. _
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ROEFme(.A2 Mar 17,1999 4
(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: (3I2) 322-8010
Fax: (312) 322-7098
(b) Notices to Indemnitor shall be sent to:
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
Phone: 847-931-5930
Fax: 847-931-6610
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.
INDEMNITOR: TIE COI∎a/f JTER RAZ DIVISION OF
THE REGIONAL TRANSPORTATION
CITY OF ELGIN AUTHORITY:
ieue .
By a , By
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ASSISTANT DIRECTOR/REgI, ESTATE
ATTEST: ATTEST:
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. Its: �IDM iflS7RATNE$ CRE?'•,�—
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EXHIBIT A .
TOTAL P.08
4y OF E_C,
`� -- -- Agenda Item No.
City of Elgin
July 16, 1999
TO: Mayor and Members of the City Council
FROM: Joyce A. Parker, City Manager
SUBJECT: Right of Entry Agreement with METRA Kimball
Street Dam Rehabilitation Project
PURPOSE
The purpose of this memorandum is to provide the Mayor and members
of the City Council with information to consider executing a Right
of Entry Agreement with Metra to access their right-of-way for
repair work to the Kimball Street Dam.
BACKGROUND
The City Council, at its May 26, 1999 meeting, awarded the contract
rik for the Kimball Street Dam Rehabilitation Project to Kovilic
Construction Company, Inc. The project includes rebuilding the fish
ladder at the west end of the dam, repair to old construction
joints, filling voids at the toe of the dam, constructing a
structural cap over the entire face of the dam and grout injection
of the interior of the dam. Construction is scheduled to begin in
early August 1999, with completion by the end of November 1999 . A
project location map is attached as Exhibit A.
In order to complete repairs to the fish ladder and abutement wall
on the west side of the dam, construction crews will have to enter
upon Metra right-of-way. Metra has agreed to allow access to their
right-of-way and has forwarded the agreement for execution. A copy
of the Right of Entry Agreement is attached as Exhibit B.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
None .
Right of Entry Agreement with Metra
July 16, 1999
Page 2
p _FINANCIAL IMPACT
The cost of the Right of Entry Agreement is $500 . 00 . This
expenditure will be funded from account number 275-0000-791 . 92-36,
project number 338438 . The agreement also requires the contractor
to obtain railroad liability insurance. The insurance cost has not
yet been determined. Because the insurance requirement was not
included in the contract documents, the City will have to reimburse
the contractor for this cost . A future change order to cover this
cost will follow, if necessary.
LEGAL IMPACT
INA 1/ None .
ALTERNATIVES
None .
RECOMMENDATION
It is recommended that the City Council approve the Right of Entry
Agreement with Metra and authorize the City Manager to execute the
agreement .
.-ctfully submitte ,
-.? -14-4-
Joy•e A. marker
City Manager
SP:do
Attachments
KIMBALLSL DAM
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EXHIBIT B
Right of Entry Agreement