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CITY COUNCIL 03/05/2012 THE CITY OF LAKE FOREST CITY COUNCIL AGENDA Monday, March 5, 2012 7:30 p.m. City Hall Council Chambers CALL TO ORDER AND ROLL CALL Honorable James J. Cowhey, Jr., Mayor Kent Novit, Alderman First Ward Thomas Morsch, Jr., Alderman Third Ward Catherine Waldeck, Alderman First Ward Donald Schoenheider, Alderman Third Ward David Moore, Alderman Second Ward Robert Palmer, Alderman Fourth Ward George Pandaleon, Alderman Second Ward Michael Adelman, Alderman Fourth Ward PLEDGE OF ALLEGIANCE REPORTS OF CITY OFFICERS 7:30 p.m. 1. Comments by Mayor A. Proclamation of Smiths’ Men’s Store 75th Anniversary Copy of Proclamation beginning on page 7 B. Appointment of Peter Cherry to Gorton Commission Volunteer Profile Sheet beginning on page 8 2. Comments by City Manager A. Electric Aggregation Update B. ComEd update on McKinley-Sheridan Improvement Project 3. Comments by Council Members OPPORTUNITY FOR CITIZENS TO ADDRESS THE CITY COUNCIL ON NON-AGENDA ITEMS ITEMS FOR OMNIBUS VOTE CONSIDERATION 8:00 p.m. 1 March 5, 2012 Agenda A. Check Register for Period Check Register For Period January 31 - February 24, 2012 Fund Invoice Payroll Total General 465,876 1,106,658 1,572,533 Water & Sewer 65,215 120,500 185,716 Parks & Recreation 104,660 315,385 420,045 Capital Improvements 44,458 5,281 49,739 Bond Funds - Projects 60,930 0 60,930 Motor Fuel Tax 0 0 0 Cemetery 6,283 17,822 24,105 Senior Resources 10,798 20,179 30,977 Deerpath Golf Course 29,463 18,748 48,210 Fleet 122,988 41,123 164,112 Debt Funds 0 0 0 Housing Trust 119,500 0 119,500 Park & Public Land 0 0 0 All other Funds 235,120 10,858 245,978 $1,265,291 $1,656,554 $ 2,921,845 B. Approval of the February 21, 2012 City Council meeting minutes Copy of February 21, 2012 minutes beginning on page9 ORDINANCES 8:05 p.m. NEW BUSINESS 8:10 p.m. A. Consideration of Recommendation to Approve a License Agreement for Underpass Construction, Maintenance and Use with Metra at the Telegraph Road Train Station PRESENTED BY CARINA WALTERS, ASSISTANT CITY MANAGER (810-3680) PURPOSE AND ACTION REQUESTED: To approve a License Agreement for the construction of the pedestrian underpass. BACKGROUND/DISCUSSION: On December 5, 2011 staff provided an informational presentation to the Committee of the Whole regarding transportation that included transit history, a status of the Amtrak stop, and status of the pedestrian underpass. That evening, the City Council authorized the approval of two Professional Service Agreements with Charlie Quandel of Quandel Consultants, LLC one to conduct Phase 2 preliminary engineering feasibility study on implementing a Lake Forest stop of the Hiawatha Regional Passenger Rail Service, and second, for assisting with the Phase I preliminary engineering on the Telegraph Rd train station pedestrian underpass project. 2 March 5, 2012 Agenda In order to construct a pedestrian underpass, an agreement between the City and Metra must be approved. A copy of the agreement beginning on page 17. Metra is the owner of the Right-of Way (ROW) referred to as “The Property” in Exhibit A of the License Agreement. The License Agreement allows The City of Lake Forest to construct the underpass with Metra and IDOT approval of plans and specifications concerning the design, location and configuration of the underpass. The agreement stipulates that the City is responsible for the following: • 50 year license agreement • Maintenance i.e. graffiti, ice and snow removal • Flaggers during the construction • Costs associated with underpass; and • signage BUDGET/FISCAL IMPACT: While there is no cost per se with the license, the City is responsible for maintenance. In speaking with Metra and depending on the design of the pedestrian underpass yearly maintenance may costs approximately $500 per year. This number will adjust as the infrastructure ages. RECOMMENDED ACTION: If appropriate and should the City Council desire, approve the License Agreement between The City of Lake Forest and Metra to construct, maintain and use of the pedestrian underpass at the Telegraph Road Train Station. B. Award of a professional services contract to HDR Engineering, Inc. for Phase I preliminary engineering on the Telegraph Rd train station pedestrian underpass project PRESENTED BY RAMESH KANAPAREDDY, P.E., CFM, CITY SURVEYOR & ENGINEER PURPOSE AND ACTION REQUESTED: Award of Phase I preliminary engineering services contract to HDR Engineering, Inc. BACKGROUND/DISCUSSION: The City has received $1 million each from the State (IDOT) and the Federal Highway Authority (FHWA), through the High-Speed Rail Grade Crossing grant funds, to build a pedestrian tunnel underneath the railroad tracks at the Telegraph Rd train station. The grant will be administered by IDOT Bureau of Local Roads thereby requiring the City to follow their specific guidelines for the project. In addition, City will be required to seek approvals from Metra and Amtrak on this project. In order to process the underpass project per grant guideline, IDOT requires the grant recipient (City) to perform a Phase I preliminary engineering study, award a Phase II final design engineering service contract, and a Phase III construction contract that includes engineering inspectional services. The Phase I preliminary engineering entails performing, at a minimum, the following tasks: I. Undertake soil surveys or subsurface investigations including borings and soil profiles as may be required to furnish sufficient data for the design of the proposed tunnel underneath the tracks. 3 March 5, 2012 Agenda II. Analyze and evaluate the soil surveys and borings to determine the location and the structural feasibility of the underpass. III. Provide construction options and coordinate the preliminary sign-off from IDOT, Metra, and Amtrak. IV. Undertake complete drainage and floodplain hydraulic analysis for high water data and flood flow histories. V. Prepare the necessary environmental and planning documents including the Project Development Report, Environmental Class of Action Determination or Environmental Assessment, State Clearinghouse, and all necessary environmental clearances. VI. Prepare applications for U.S. Army Corps of Engineers (US ACOE) permit, Illinois Department of Natural Resources (IDNR) Office of Water Resources (OWR) Permit, Illinois Environmental Protection Agency (IEPA) Section 404 Water Quality Certification, and other regulatory permits. City received authorization from IDOT’s Bureau of Local Roads and Bureau of Railways on the selection process for a firm to perform the Phase I preliminary engineering services. City sent request for qualifications to eligible firms and received proposals from seven (7) firms. The City chose three (3) firms for an interview presentation who were experienced in railroad underpass projects, IDOT’s grant procedures, and have worked with Metra and Amtrak on related projects. The City team included staff, personnel from Quandel Consultants, and Norm Carlson, a Lake Forest resident experienced in railroad operations. Based on the interview and firm qualifications, City team selected HDR, Engineering, Inc. (HDR) to provide the Phase I preliminary engineering services. The City will include Quandel in the Phase I preliminary engineering stage to use their expertise in railroad operations and their involvement in the possibility of a new high- speed rail connection between Milwaukee and Chicago. Quandel will play an advisory role on Phase I preliminary engineering related to feasibility of a Lake Forest stop on the Hiawatha regional passenger rail service and the possibility of a third track for High-Speed rail. Upon seeking approval from Council, City (HDR) will coordinate a kick-off meeting with IDOT to start the Phase I engineering services. An aggressive tentative timeline of the different phases of the project is listed below: Project Phase Start Date (tentative) Completion Date (tentative) IDOT Approval Date (tentative) Ph I Preliminary Engineering Mar 2012 Dec 2013 Mar 2013 * Ph II Design Engineering Mar 2013 Oct 2013 Jan 2014 * Ph III Construction (incl. Construction Engineering) Mar 2014 Nov 2014 Nov 2016 (paperwork completed) 4 March 5, 2012 Agenda * - City needs authorization from IDOT prior to start of Phase II design engineering and Phase III construction. BUDGET/FISCAL IMPACT: Upon selection of the firm, City negotiated a Phase I preliminary engineering contract amount and sent a draft copy of the proposal to IDOT for approval. IDOT gave a preliminary approval of HDR’s proposal even though all local funds are being used for Phase I preliminary engineering services. City negotiated with HDR for the Phase I preliminary engineering services contract. The final amount for Phase I preliminary engineering services is $204, 808.93 excluding any railroad permit or insurance costs. In addition, staff is seeking additional 10% as contingency for permit related requirements of IDOT, Metra, Amtrak, Army Corps, FHWA, or Federal Railway Authority. Since the grant funding for this project is received from two levels of government, City (HDR) has to comply with the requirements of both jurisdictions. In addition, the scope of the project also entails feasibility analysis consideration of a potential Amtrak stop and a third track at this station. Typically, the cost for a Phase I preliminary engineering services is 10% of the construction cost provided conceptual feasibility analysis has been performed. For this project, no such prior analysis has been done and HDR is required to perform detailed feasibility analysis along with preliminary engineering for this project. The construction cost is estimated from a low of $1.8 million to a high of $2.5 million. At the conclusion of Phase I preliminary engineering service a more detailed estimate on the construction cost will be finalized. This project was discussed and approved as part of the Capital Improvement Program budget meeting in November 2011 and again during Committee of the Whole meeting in December 2011. Since the project is located in the TIF district, City will use TIF funds for the Phase I preliminary engineering services contract. Below is a summary of Project budget: FY 2012-13 Funding Source Amount Budgeted Amount Requested (incl. 10% cont.) Budgeted? Y/N TIF $500,000.00 * $225,289.79 Y *- Portion of the amount budgeted will be used for Phase II design engineering. RECOMMENDED ACTION: Staff recommends awarding a professional services contract to HDR Engineering, Inc. for Phase I preliminary engineering in the amount not to exceed $225,289.79 which includes authorization to expend up to 10% contingency, if necessary, for unforeseen change orders that may occur during the administration of this project. ADDITIONAL ITEMS FOR COUNCIL DISCUSSION 1. Lake County Forest Preserve Ft. Sheridan Golf Course Discussion 5 March 5, 2012 Agenda ADJOURNMENT 8:50 p.m. Office of the City Manager March 2, 2012 The City of Lake Forest is subject to the requirements of the Americans with Disabilities Act of 1990. Individuals with disabilities who plan to attend this meeting and who require certain accommodations in order to allow them to observe and/or participate in this meeting, or who have questions regarding the accessibility of the meeting or the facilities, are required to contact City Manager Robert R. Kiely, Jr., at (847) 234-2600 promptly to allow the City to make reasonable accommodations for those persons. 6 PROCLAMATION SMITHS’ MEN’S STORE CELEBRATES 75TH ANNIVERSARY WHEREAS, in 1926, Lake Forest residents Walter Smith and George Robertson planned to open a men’s clothing store, but financing fell short and therefore George Robertson opened Robertson’s and Walter Smith became the Lake Forest Postmaster; and WHEREAS, in 1937, Walter Smith and his wife, Irene Atteridge Smith fulfilled their dreams by opening a haberdashery in Lake Forest on the north side of Market Square where it was well received by its customers and residents; and WHEREAS, the store moved to 660 N. Western Avenue in 1961 where it operated by Walter and Irene until Walter passed away and their son, H. Brooks Smith, purchased the store; and WHEREAS, H. Brooks Smith and his wife, Jacqueline D. Smith visibly enjoyed their successful enterprise and fostered strong community ties with their customers and residents until 1987; and WHEREAS, less than one year later, Smiths’ Men’s Store re-opened its doors at its present location at 770 Western Avenue, under the ownership of two former Smiths’ employees and longtime Lake Foresters, John Tadel and Chris Yore; and WHEREAS, in 1995, John Tadel became the sole owner of Smiths’ Men’s Store and since then, Chris Yore has re-joined John Tadel working there part-time, as well as Pony Swanton, a former owner of Robertson’s; and WHEREAS, in 2012, Smiths’ Men’s Store is celebrating its 75th anniversary as a truly locally- owned and operated enterprise and part of the Lake Forest business community; Therefore I, James J. Cowhey, Jr., Mayor of The City of Lake Forest, proclaim the City’s best wishes on Smiths’ Men’s Store’s 75th Anniversary and call its significance to the citizens of The City of Lake Forest. BE IT FURTHER RESOLVED that this resolution be spread upon the minutes of the City Council and a copy hereof, duly signed by the Mayor, be presented to the CITY OF LAKE FOREST this 5th day of March, 2012. __________________________ __________________________ City Clerk Mayor 7 8 9 The City of Lake Forest CITY COUNCIL Proceedings of the February 21, 2012 Regular Meeting 7:30 p.m. – City Hall Council Chambers CALL TO ORDER AND ROLL CALL: Mayor Cowhey called the meeting to order at 7:30 p.m. Deputy City Clerk called the roll of Council members. Present: Aldermen Novit, Waldeck, Moore, Pandaleon, Morsch, Schoenheider, Palmer, Adelman. Absent: None. Quorum present. There were approximately 15+ present in the audience. Also present were: Vic Filippini, City Attorney; Marlo Del Percio, City Attorney; Catherine Czerniak, Director of Community Development; Joseph Buerger, Chief of Police; Ramesh Kanapareddy, City Engineer; Carina Walters, Assistant City Manager; Michael Thomas, Director of Public Works; Cathryn Buerger, Deputy City Clerk. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was recited by all in attendance. Conduct a Public Hearing to Consider a Proposed Plan of Operation and Governance for the City's Residential and Small Commercial Retail Electricity Aggregation Program Alderman Palmer moved, seconded by Alderman Novit to open and conduct a Public Hearing to Consider a Proposed Plan of Operation and Governance for the City's Residential and Small Commercial Retail Electricity Aggregation Program. Motion carried unanimously by voice vote. The following residents stood before Council to make statements and ask questions regarding the electric aggregation program: Paul Hamon, 511 Beverly Paul Hansen, 88 Marion Skip Thompson, Arcady Dr. Ron Swanson, Blackthorne Ln. Debbie Kiddle, Oakwood Ave. Tom Boyden, 104 E. Westleigh Mr. Seigal, 560 Ivy Ct. Alderman Novit moved, seconded by Alderman Morsch to close the Public Hearing to Consider a Proposed Plan of Operation and Governance for the City's Residential and Small Commercial Retail Electricity Aggregation Program. Motion carried unanimously by voice vote Reports of City Officers 1. Comments by Mayor Mayor Cowhey apologized for the cancellation of the Strategic Planning event that was scheduled to take place February 10 and 11. The Mayor advised it will be rescheduled for May 4 and 5, 2012. 2. Comments by City Manager – None presented. 10 Proceedings of the February 21, 2012 Regular City Council Meeting 3. Comments by Council Members A. Public Works Committee – Alderman Novit 1. Request for City Council to Waive the Bidding Process to Purchase Replacement Water Plant Membrane Filters Director of Public Works, Michael Thomas addressed the Council regarding the purchase of replacement water membrane filters. He stated primarily throughout the winter months, water plant staff repair and account for the broken fibers on each of the 192 modules. Thirty-six modules have reached the point where they need to be replaced. Dollars have been budgeted in the F.Y. 2013 Capital Improvement Plan for this purchase. The modules are built in Toulouse, France and take approximately four months to produce and ship to Lake Forest. Beginning this year, the City was informed that there is no longer a U.S. vendor and that the modules would be purchased directly from AquaSource; this has resulted in an overall 37% savings in module pricing as compared to last fiscal year. Since no other membrane module will work with the City’s system, staff requested that the bidding process be waived and an order be placed to purchase thirty-six AquaSource units. In April, 2004 The City of Lake Forest placed into service its new Ultra-Filtration Membrane Water Plant. Due to a manufacturing defect all 192 modules were replaced in the summer, 2006. The modules have a one year manufacturer warranty and are estimated to have a life expectancy of seven to ten years. Eight modules were replaced in October, 2009, twenty in July, 2010, and twenty-four in June, 2011. Every eight hours one of the eight skids performs an air integrity test to determine if there are any broken fibers. Each module contains 35,000 fibers and the manufacturer recommends the module be replaced when 300 fibers have been repaired. Staff has budgeted for the replacement of modules each fiscal year. The recent installation of the low-lift side arm pumps has so far been successful in reducing fiber breaks in each of the modules. However the modules will continue to need to be replaced since they each have a number of existing fiber breaks (breaks that occurred before the new low-lift side arm pumps). The total cost per module to include packaging, insurance, and freight has decreased by 37% over last year’s purchase. FY2011 Funding Source Account Number Account Budget Amount Requested Budgeted? Y/N Water 508-0001-434-6749 $360,000 $323,010 Y RECOMMENDED ACTION: Staff requests that City Council waive the bidding process and award the purchase of thirty-six replacement membrane modules to AquaSource in the amount of $323,010. This is $36,990 under the budgeted amount of $360,000. Alderman Moore moved, seconded by Alderman Palmer to waive the bidding process and award the purchase of thirty-six replacement membrane modules to AquaSource in the amount of $323.010. Motion carried unanimously by voice vote. 11 Proceedings of the February 21, 2012 Regular City Council Meeting Alderman Morsch moved, seconded by Alderman Schoenheider to award the purchase of thirty-six replacement membrane modules to AquaSource in the amount of $323,010. The following voted “Yea” Aldermen Novit, Waldeck, Moore, Pandaleon, Morsch, Schoenheider, Palmer, Adelman. The following voted “Nay” none. Motion carried. OPPORTUNITY FOR PUBLIC TO ADDRESS THE CITY COUNCIL ON NON-AGENDA ITEMS None presented. ITEMS FOR OMNIBUS VOTE CONSIDERATION 1. Approval of Adding Additional Cab Business License At the September 6, 2011, Committee of the Whole meeting, a discussion was held on cab and cab driver licensing. Chapter 43 of the City Code, Vehicles for Hire, addresses the requirements of each licensed cab and driver. The Police Department completes the required inspections of the vehicles and meters and also licenses the drivers. An additional cab company has requested a license from the City Council to operate in The City of Lake Forest. The Police Department has recommended the City Council grant a license to Lake Forest Taxi. All the necessary paperwork and documents have been provided to the Deputy City Clerk for the licensing. The Police Department has completed a background check of the company and owners; we find no reason for the City Council to not grant the license at this time. 2. Approval of a resolution for City employees to perform work, in lieu of surety bond, on State right-of-way including emergency work. Resolution to perform permit work on State right-of-way in lieu of surety bond including emergency repair work on water main, lighting, sewers, and other City owned and maintained infrastructure. Similar to City requiring a permit to work within its limits, the State requires a permit to work within its jurisdictions. City own and maintain public infrastructure within State’s right-of-way including along Rt. 43, Rt. 60, and Rt. 41. State requires City to obtain a permit for any routine maintenance or improvement within its right-of-way. During emergencies such as water main breaks or sewer repairs or pothole repairs it is not practical to obtain a permit and subsequent surety bond prior to addressing the necessary repair in an expedited manor. In these instances State allows City crews to continue work within its right-of-way provided a resolution stating compliance with State standards are to be met during construction is approved. Typically these resolutions are done on an annual basis but in order to maximize efficiency and reduce paperwork burden, State requested the resolution be enacted for two years. 3. Approval of the February 6, 2012 City Council meeting minutes Recommended Action: Approval of items as presented. Alderman Morsch moved, seconded by Alderman Novit to approve the items for omnibus vote consideration. The following voted “Yea” Aldermen Novit, Waldeck, Moore, Pandaleon, Morsch, Schoenheider, Palmer, Adelman. The following voted “Nay” none. Motion carried. 12 Proceedings of the February 21, 2012 Regular City Council Meeting ORDINANCES 1. Consideration of a Recommendation from the Plan Commission in Support of Adoption of an Updated City of Lake Forest Official Zoning Map. (First Reading, and if desired by the City Council, Final Approval) Periodically, the City adopts an update to the City’s Zoning Map. The City of Lake Forest Official Zoning Map was last approved in March, 2009. The update as unanimously recommended by the Plan Commission incorporates all zone changes that have occurred since the 2009 approval. Given the built out nature of the City of Lake Forest, the City sees a very limited number of zone changes. The Official Zoning Map presented for approval includes the following update: • Elawa Park (City Owned Property) – zone change from R5, Residential, to OA, Open Area (approved May 2010) The rezoning action listed above is the only zone change approved by the City since the last update. Importantly, the Official Zoning Map update incorporates changes that have already been acted on and approved by the City Council. No new zone changes are approved as part of the map update now before the Council. Recommended Action: Waive first reading and grant final approval of an ordinance approving the Official Zoning Map, 2012. Alderman Morsch moved, seconded by Alderman Pandaleon to waive first reading and grant final approval of an ordinance approving the Official Zoning Map, 2012. Motion carried unanimously by voice vote. Alderman Pandaleon moved, seconded by Alderman Novit to grant final approval of an ordinance approving the Official Zoning Map, 2012. The following voted “Yea” Aldermen Novit, Waldeck, Moore, Pandaleon, Morsch, Schoenheider, Palmer, Adelman. The following voted “Nay” none. Motion carried. 2. Consideration of an Ordinance Amending the Special Use Permit for Woodlands Academy of the Sacred Heart to Allow Expansion of the Campus Boundaries to Incorporate the 23-acre Barat Parcel into the Woodlands Academy Campus. (Final Approval) On February 7, 2012, the City Council approved first reading of an Ordinance amending the Special Use Permit for Woodlands Academy to allow expansion of the campus to include the 23- acre Barat property. No approvals for redevelopment of the 23-acre parcel are granted as part of this Ordinance. On December 14, 2011, the Plan Commission held a public hearing to consider this request and after a presentation from representatives of Woodlands Academy and after hearing public testimony, the Commission recommended approval of the amendment to the Special Use Permit authorizing the consolidation of the two campuses subject to a number of conditions of approval. At the February 7th meeting, the City Council identified three issues for further review; 1) the time frame for commencing with the demolition of Old Main 2) the adequacy of security to be 13 Proceedings of the February 21, 2012 Regular City Council Meeting held by the City for the demolition of Old Main and 3) the incorporation of a reference to the City’s affordable housing policy. Granting final approval of the Ordinance amending the Special Use Permit allowing the combination the two campuses into a single campus is consistent with the City Council’s previous action and direction in support of the ultimate demolition of Old Main and expansion of Woodlands Academy on to the Barat property. If this Special Use Permit is approved, Woodland’s Academy will undertake the development of a master plan for the property. The master plan will require review and approval by the City consistent with standard processes. Recommended Action: Grant final approval of an Ordinance amending the Woodlands Academy Special Use Permit authorizing the incorporation of the 23-acre Barat parcel into the Woodlands Academy Campus. Alderman Palmer moved, seconded by Alderman Morsch to grant final approval of an Ordinance amending the Woodlands Academy Special Use Permit authorizing the incorporation of the 23-acre Barat parcel into the Woodlands Academy Campus. The following voted “Yea” Aldermen Novit, Waldeck, Moore, Pandaleon, Morsch, Schoenheider, Palmer, Adelman. The following voted “Nay” none. Motion carried. 3. Consideration of an Ordinance Regarding the Use of Wireless Telephones and Electronic Devices While Driving (First Reading) Staff recommended consideration and action by the City Council relating to a ban on the use of cell phones and other electronic devices while operating a motor vehicle within the limits of the City; unless the operator is using a hands-free device. The Legal Committee first discussed the concept of an ordinance related to restricting the use of electronics while driving at their October 26, 2011 meeting. Following a briefing from Alderman Palmer at the December 5, 2011 Committee of the Whole meeting on the Legal Committee’s discussion and recommendation, the City Council directed staff to further review the matter and bring forward options at the January 3 City Council meeting. At the January 3 meeting, the consensus was to table this matter until the February 6 Council meeting when the entire City Council would be present for the discussion. At the February 6 meeting, staff provided a report indicating that the Illinois State Legislature had introduced a bill that would apply restrictions similar to what Lake Forest was contemplating, on a state-wide basis. After some discussion the Council directed staff to place an ordinance for consideration on the February 21 agenda. Potential Options for Consideration: 1) Do not pass a new Ordinance and continue to enforce current Illinois laws regarding distracted driving. The City Council could elect to not enact any new ordinances relating to the use of cellphones and other electronic devices and continue to operate under current Illinois law. Current law does restrict the use of such devices in school zones and construction areas. If the Council was to favor this option, the staff would recommend that we take the following steps. a) Formally recommend to our respective State Representatives that the State move forward with legislation to create a state-wide ban on the use of such devices (not just in school or construction zones). b) Direct staff to prepare a formal public education program to inform the community on current state law and the dangers of distracted driving. 14 Proceedings of the February 21, 2012 Regular City Council Meeting 2) Adopt an Ordinance regarding the use of wireless telephones and electronic devices while driving “Hands Free Ordinance”. The City Council could adopt an ordinance which substantially mirrors the legislation enacted by other area municipalities (Highland Park, Deerfield) and/or the legislation under consideration by the State. Two matters of consideration associated with this option are the schedule of implementation and enforcement. a) Schedule of Implementation – The City Council has the option of moving forward with the adoption of the ordinance with the stipulation that it does not go into effect until some future date (i.e.: January 1, 2013). This enables sufficient time for city staff to publicize the new legislation and permit time for drivers to change cell phone use behaviors. The Council could also pass first reading of the Ordinance and table second and final reading until some predetermined date (i.e.: July 1, 2012). This would provide Lake Forest time to determine what, if any action the State is planning to take on this subject and assure that our regulations are consistent with State law. b) Enforcement – The matter of enforcement by the Lake Forest Police Department would be similar and consistent with enforcement of the Seat Belt Law. Our intent would not be to aggressively “seek-out” drivers violating the ordinance but rather to piggy-back its application with another violation that may have occurred. For example, speeding while on the cell phone. Even if the State were to enact a statewide ban on the use of wireless telephones and other electronic devices while driving, staff would still recommend that the City enact its own companion ordinance. This allows police officers to write tickets that bring individuals before the Administrative Hearing Officer and results in a higher percentage of the ticket revenue to stay in Lake Forest. Staff also recommended a formal public education program be implemented under this option as well. 3) Adopt a Distracted Driving Ordinance As previously discussed by the City Council, this proposed ordinance is considerably more encompassing than Option 2. The same issues and recommendations set forth in Option 2 apply in this option as well. RECOMMENDED ACTION:, Approval of first reading of a Hands Free Ordinance along with stipulation on the schedule for implementation. Several Council members expressed their concerns and views on this topic and its impact on the residents. Alderman Palmer moved, seconded by Alderman Adelman to grant first reading of an ordinance to adopt an Ordinance regarding the use of wireless telephones and electronic devices while driving “Hands Free Ordinance”. The following voted “Yea”; Mayor Cowhey, Moore, Schoenheider, Palmer, Adelman. The following voted “Nay”; Novit, Waldeck, Pandaleon, Morsch. Motion carried 5 yeas and 4 nays. Alderman Palmer moved, seconded by Alderman Adelman to grant final approval of an ordinance to adopt an Ordinance regarding the use of wireless telephones and electronic devices while driving “Hands Free Ordinance.” The following voted “Yea”; Moore, Schoenheider, Palmer, Adelman. The following voted “Nay”; Mayor Cowhey, Novit, Waldeck, Pandaleon, Morsch. Motion failed 4 yeas and 5 nays. 15 Proceedings of the February 21, 2012 Regular City Council Meeting NEW BUSINESS None presented ADDITIONAL ITEMS FOR COUNCIL DISCUSSION ADJOURNMENT There being no further business, Alderman Palmer moved, seconded by Alderman Schoenheider to adjourn the meeting at 9:10 p.m. The motion carried unanimously by voice vote. Cathryn H. Buerger Deputy City Clerk 16 1 LICENSE AGREEMENT FOR UNDERPASS CONSTRUCTION, MAINTENANCE AND USE THIS LICENSE AGREEMENT FOR UNDERPASS CONSTRUCTION, MAINTENANCE AND USE ("License Agreement") is made and entered into as of the ____ day of _________ 2011 ("Effective Date"), by and between the COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, a division of an Illinois municipal corporation ("Licensor"), and the CITY OF LAKE FOREST, an Illinois municipal corporation ("Licensee"). Licensor and Licensee are hereinafter sometimes individually referred to as a “Party” or jointly referred to as the “Parties.” RECITALS: A. Licensor owns or controls certain real property in the City of Lake Forest, Illinois commonly referred to as Metra’s Milwaukee District North Line right-of-way, a part of which identified as Permanent Index Number, 16-07-200-059, a portion of which is highlighted on Exhibit A attached to and made a part of this Agreement (the "Property"). B. Licensee has requested that Licensor grant to Licensee a license over, in, on and under certain portions of the Property (the "Premises") defined as the portion of the Property necessary to carry out the construction, reconstruction, repair, maintenance, replacement and use by Licensee, its agents, contractors, representatives, invitees and customers of a pedestrian underpass under Licensor's railroad tracks (the “Improvements”) delineated and described generally in the conceptual drawing attached to and made a part of this Agreement as Exhibit B, to be replaced by the final plans and specifications for the Improvements (“Plans and Specifications”) when made available and approved by Licensor. C. Licensor has agreed to grant Licensee such license, subject to the terms and conditions set forth in this License Agreement. AGREEMENTS: NOW, THEREFORE, for and in consideration of the foregoing Recitals which are by this reference incorporated into and made as part of this License Agreement and mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1. Granting of License. 1.1. License Purpose. The "License Purpose" shall be the construction, reconstruction, repair, maintenance, replacement and use by Licensee, its agents, contractors, representatives, invitees and customers of the Improvements. The Improvements shall be located, configured, constructed, reconstructed, repaired and maintained by Licensee in strict accordance with the terms of this License Agreement and the Plans and Specifications approved as set forth in Section 5. 1.2. Grant. Licensor does hereby grant unto Licensee a non-exclusive license ("License") over the Premises for the License Purpose. 1.3. License Encumbrances. The License is granted subject to any and all restrictions, covenants, easements, licenses, permits, leases and other encumbrances of whatsoever nature whether or not of record existing as of the date of this License Agreement, if any, relating to the Premises and subject to all Laws (as defined in Section 6.6(b)), including without limitation zoning laws, regulations, and ordinances of municipal and other governmental authorities, if any. To the best of Licensor’s knowledge, there are not in effect any restrictions, covenants, easements, licenses, permits, leases or other encumbrances or Laws which would prohibit or interfere with the License Purpose. 17 2 1.4. Reservations by Licensor. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: (a) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any existing pipe, power, communication, cable, or utility lines and appurtenances and other facilities or structures of like character (collectively, "Lines") upon, over, under or across the Premises, provided the same shall not unreasonably and adversely affect Licensee’s use of the Premises or adversely affect the safety, structural integrity of the Improvements; (b) to install, construct, maintain, renew, repair, replace, use, operate, change, modify and relocate any tracks or additional facilities or structures upon, over, under or across the Premises, provided the same shall not unreasonably and adversely affect Licensee’s use of the Premises or adversely affect the safety or structural integrity of the Improvements; and (c) to use the Premises in any manner as the Licensor in its sole discretion deems reasonable and appropriate, provided Licensor uses all commercially reasonable efforts to: (a) avoid material interference with the use of the Premises by Licensee for the License Purpose and (b) avoid adversely affecting the safety of pedestrians or the safety and structural integrity of the Improvements. 1.5. Term of License. The term of the License, unless sooner terminated under provisions of this License Agreement, shall be fifty (50) years from the Effective Date of this License Agreement, subject to automatic annual renewal for one year terms thereafter for the duration of the useful life of the Improvements. If either party desires not to renew this License Agreement during any one of the renewal terms, said party shall provide six (6) months prior written notice of its intent to terminate this License Agreement. 1.6. No Dedication to the Public. Although Licensee is constructing the Improvements to facilitate public access to, and use of, Licensor's rail facilities and station in the area including and adjacent to the Property, the parties expressly acknowledge and agree that the grant of the License under this License Agreement does not constitute a dedication of the Premises to the public. Section 2. Compensation. Licensee shall pay Licensor, prior to the Effective Date, the sum of Ten and No/100 Dollars ($10) as compensation for the use of the Premises. Section 3. No Warranty of Any Conditions of the Premises. Licensee acknowledges that Licensor has made no representation whatsoever to Licensee concerning the state or condition of the Premises, or any personal property located thereon, or the nature or extent of Licensor's ownership interest in the Premises. Licensee has not relied on any statement or declaration of Licensor, oral or in writing, as an inducement to entering into this License Agreement, other than as set forth herein. LICENSOR HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, AS TO THE DESIGN OR CONDITION OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY SUCH PROPERTY, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE OR ANY OF LICENSEE'S CONTRACTORS FOR ANY DAMAGES RELATING TO THE DESIGN, CONDITION, QUALITY, SAFETY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PROPERTY PRESENT ON OR CONSTITUTING THE PREMISES, OR THE CONFORMITY OF ANY SUCH PROPERTY TO ITS INTENDED USES. LICENSEE ACCEPTS ALL RIGHTS GRANTED UNDER THIS LICENSE AGREEMENT IN THE PREMISES IN AN "AS IS, WHERE IS" AND "WITH ALL FAULTS" CONDITION, AND SUBJECT TO THE LIMITATIONS ON LICENSOR’S RIGHTS INTERESTS AND TITLE TO THE PREMISES. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS 18 3 MADE. Licensee has inspected or will inspect the Premises, and enters upon Licensor's rail corridor and property with knowledge of its physical condition and the danger inherent in Licensor's rail operations on or near the Premises. Licensee acknowledges that this License Agreement does not contain any implied warranties that Licensee or Licensee's Contractors (as hereinafter defined) can successfully construct or operate the Improvements. Section 4. Nature of Licensor's Interest in the Premises. Licensee acknowledges that one or more other parties, including, but not limited to, various American nations, may have, or may have claim to have, ownership rights in certain segments of certain of Licensor's rail corridors, and may claim that Licensee also must obtain rights from it (or them) in order to occupy, or access, the Premises, and that in some cases such claims may be valid. Licensee acknowledges that Licensor's ownership interest in many of its rail corridors is a determinable fee, a railroad right-of-way or a rail service license, which shall terminate when Licensor either: (i) ceases to use those rail corridors for railroad purposes; or (ii) uses such rail corridors for purposes found to be inconsistent with use of the corridors for railroad purposes, and that in such circumstances, Licensor's right to grant licenses in any such rail corridor, or rights under any license grant of any such rail corridor, may be subject to termination as of the date the circumstances set forth in either (i) or (ii) above first arise (unless Licensee improves the quality of title to the Premises by obtaining a patent or deed from the federal government, if appropriate, or acquiring additional property interests from third parties). Licensee also acknowledges that Licensor's ownership rights may terminate for other reasons, such as termination of franchise rights, and that certain segments of Licensor's rail corridors consist only of a trackage rights license to Licensor and enable Licensor to provide rail service, or shared ownership with other railroads, and that Licensor may not have rights to include those segments in the License to Licensee. Licensee further acknowledges that Licensee's rights to enter into this License Agreement, and its rights under this License Agreement, are subject and subordinate to all outstanding and/or future rights and encumbrances on Licensor's rail corridor (including liens, security interests, and mortgages), and any licenses, other leases, licenses, permits or agreements which now or in the future relate to Licensor's rail corridor, except Licensor in the future shall not place any encumbrance upon any portion of Licensor's rail corridor then subject to the License to Licensee or enter into any license, lease, license, permit or agreement, which would materially disrupt Licensee's ability to exercise rights under this License Agreement or to utilize the Improvements, and Licensee acknowledges that its ability to exercise rights under this License Agreement or to utilize such Improvements would not be materially disrupted if either: (a) Licensee is relocated to another location, within Licensor's rail corridor in accordance with the terms of this License Agreement or (b) Licensor preserves comparable rights and makes those rights available to Licensee at no charge payable by Licensee to the holder of the land interest where such rights are located and changes following any conveyance by Licensor of its ownership interest in such a parcel have not caused a significant physical limitation on constructing Improvements through such parcel. Licensor therefore conveys to Licensee no more right, title and interest in any rail corridor than Licensor holds in such rail corridor at the time of conveyance, and Licensee hereby releases Licensor from any and all liability, cost and expense, loss, damage or expense in connection with any claims that Licensor lacked sufficient legal title to convey the rights described herein. In case of the eviction of Licensee by anyone owning or claiming title to or any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable to refund Licensee any compensation paid hereunder. Section 5. Plans and Specifications for Improvements. 5.1. Improvements. Prior to commencing any work on the Premises, Licensee shall submit to Licensor for its review and approval detailed Plans and Specifications concerning the design, location and configuration of the Improvements. 5.2. Subsequent Improvements or Alterations. Subsequent to the execution of this License Agreement or the completion of the Improvements in accordance with the Plans and Specifications previously approved by Licensor described in Section 5.1 above, if Licensee desires to change the location of any Improvements or modify the Improvements (the “Alterations”) in any way that would or could possibly affect the structural integrity of the Improvements, as determined by Licensor in its sole discretion, Licensee shall submit plans and specifications for such change or modifications to 19 4 Licensor in writing for its review and comment (the “Modification Plans”). As soon as reasonably practicable after Licensor's receipt of the Modification Plans and other information reasonably required by Licensor concerning the proposed location of the Alterations, but in no event later than sixty (60) days after such receipt, Licensor will review the Modification Plans, and notify Licensee in writing whether Licensor has approved or disapproved the location of the Alterations or the Modification Plans. If Licensor should disapprove of the Modification Plans, the notice to Licensee of such disapproval shall include a detailed description and explanation of all reasons for such disapproval. Following any notice of disapproval, Licensee shall have the right to modify the location, configuration or other aspects of the Modification Plans for the proposed Alterations and to resubmit such modified information to Licensor for its further review and comment which review and comment shall be provided no later than sixty (60) days following receipt of such Modification Plans. In any instance where Licensor disapproves the location of any proposed Alterations, Licensor shall use commercially reasonable efforts to suggest an alternative location for such Alterations, and once the Alterations are complete, the same shall be deemed a part of the Improvements. Section 6. Improvements. 6.1. Permits. Licensee shall obtain all necessary permits, licenses, consents and other approvals for the performance of the work, including, without limitation, Right of Entry Agreements between Metra and any contractors or sub-contractors performing work on the Premises. An application for a Right of Entry Agreement may be obtained by accessing Metra’s website at http://www.metrarail.com/Engineering/ or by contacting Metra’s Right of Way Administrator at 312-322-8016. 6.2. Construction of Improvements. Licensee, and Licensee's Contractors, at Licensee's sole cost and expense, shall locate, configure and construct the Improvements: (i) in a good and workmanlike manner and in strict accordance with the Plans and Specifications approved by Licensor pursuant to the provisions of Section 5 above, (ii) in conformance with applicable building uses and all applicable engineering, safety and other Laws, (iii) in accordance with commercially reasonable and generally accepted industry standards of care, skill and diligence as observed in the rail industry, and (iv) in such a manner as shall not adversely affect the structural integrity or maintenance of the Property, any structures on the Property prior to construction of the Improvements, or any lateral support of structures physically supporting, connected to, or otherwise abutting the Property. Licensee shall obtain from each contractor of Licensee constructing the Improvements, a warranty of the contractor's work or services, and such warranty shall be effective for no less than one (1) year following the completion of the work or services and shall be fully transferable to Licensor. Nothing contained in this Section 6.2 shall be construed to diminish Licensee’s obligations under Section 7 hereof. Licensee hereby acknowledges its responsibility for all liabilities arising from the Improvements and not resulting from the negligence or willful misconduct of Licensor. 6.3. Maintenance of Improvements. Licensee shall at all times during the term of this License Agreement, at Licensee's sole cost and expense, keep and maintain the Improvements located upon the Premises in a structurally safe and sound condition, in good repair, and in compliance with Laws. Licensee shall also promptly repair any damage to the Property, the Premises or the Improvements caused by Licensee Parties (as defined in Section 7(iii)). Licensee shall not cause or permit another person to cause any damage to the Property, the Premises or the Improvements, and Licensee shall be responsible for any such damage which may occur as a result of any Licensee Party's action or inaction. Licensee shall not permit the existence of any nuisance or the accumulation of junk, debris or other unsightly materials on the Premises and shall keep the Premises in a clean and safe condition. Licensee shall, at its sole cost and expense, remove or obliterate graffiti on and within the Improvements and remove ice and snow from the Premises. Licensee shall be responsible to pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed upon the Improvements by any governmental or quasi-governmental body or any Taxes levied or assessed against Licensor that are attributable to the Improvements. In the event that Licensee’s Improvements should cease to comply with the provisions of this Section, Licensee shall take immediate remedial action upon notice of such non-compliance. Licensee shall be deemed to have valid notice if notice of any non- 20 5 compliance is delivered by Licensor or any governmental, quasi-governmental or other official authority, or if Licensee observes or should have observed such non-compliance in its normal use, operation and maintenance of the Premises. If Licensee has not achieved compliance with this Section within thirty (30) days of such valid notice, Licensee shall be deemed in material default of this Agreement and Licensor shall have the right, but not the obligation, to enter upon the Premises to remediate such non-compliance, and Licensee shall be responsible for payment or reimbursement for all costs and expenses incurred for such remediation upon the receipt of an invoice for such costs and expenses (it being understood that to the extent a remedy cannot be achieved in said 30-day period but Licensee has commenced and is diligently pursuing such remedy to Licensor’s reasonable satisfaction, Licensee shall not be deemed in default of this Agreement). 6.4. No Interference. During the construction of, subsequent maintenance performed on, operation of, or removal of, all or any portion of the Improvements, Licensee, at Licensee's sole cost and expense, shall perform all activities and work on or near Licensor's rail corridor or property and/or the Premises in such a manner as to avoid injury to persons or damage to the property of Licensor, or any party on or with property on Licensor's rail corridor or property, and shall ensure that there is no interference with the railroad operations or other activities of Licensor, or anyone present on Licensor's rail corridor or property with the authority or permission of Licensor. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, license beneficiaries or lien holders, if any, or interfere with the use of such improvements. Licensor may direct one of its field engineers to observe or inspect the construction, maintenance, operation or removal of the Improvements, or any portion thereof, at any time to ensure such safety and noninterference, and to ensure that the Improvements comply with the Plans and Specifications. If any Licensee Party is ordered at any time to leave the Premises or halt any activity on the Premises, then the party conducting that activity immediately shall cease such activity and leave the Premises if the order was issued by Licensor’s personnel to promote safety, non-interference with other activities or property, or because the Improvements were not in compliance the Plans and Specifications. Notwithstanding the foregoing right of Licensor, Licensor has no duty or obligation to observe or inspect, or to halt work on, the Premises, it being solely Licensee's responsibility to ensure that the Improvements in the Premises comply with all Laws, safety measures and this License Agreement. Further, Licensee, at Licensee's sole cost and expense, shall pay any additional costs and expenses for the maintenance or reconstruction of Metra tracks, facilities, or structures, caused by the existence of, or protection of the Improvements. Neither the exercise nor the failure by Licensor to exercise any right set forth in this Section 6.4 shall alter the liability allocation set forth in this License Agreement. 6.5. No Alterations. Except as may be shown in the Plans and Specifications or any Modification Plans approved by Licensor for the License in accordance with the provisions of Section 5 above, Licensee may not make any alterations to the Premises, or permanently affix anything to the Premises, without Licensor's prior written consent. Licensee shall have no right to commence any such change until after Licensee has received Licensor's approval of such change in writing. 6.6. Approvals; Compliance with Laws and Safety Rules. (a) Licensee shall take, in a timely manner, all actions necessary and proper to the lawful establishment, construction, operation, and maintenance of the Improvements, including such actions as may be necessary to obtain any required approval or authorization from the Illinois Commerce Commission or the Illinois Department of Transportation. (b) Prior to entering the Premises, and at all times during the term of this License Agreement, Licensee shall comply, and shall cause its contractor, any subcontractor, any agent, and any contractor or subcontractor of any agent performing work on the Premises or entering the Premises on behalf of Licensee (collectively, "Licensee's Contractors") to comply with: (i) all applicable federal, state and local laws, regulations, ordinances, restrictions, covenants and court or 21 6 administrative decisions and orders ("Laws") and (ii) all of Licensor's applicable safety rules and regulations. 6.7. Lines. In the event any construction, repair, maintenance or other work or activity conducted by Licensee under this License will affect any Lines (defined with Section 1.4(a)), Licensee will be responsible for contacting the companies owning the Lines and notifying them of any work that may damage these Lines and/or interfere with their service and obtain the written approval of said companies prior to so affecting the Lines. Licensee must also mark all Lines shown on the plans or marked in the field in order to verify their locations. Licensee must also use reasonable methods when working in the Licensor right-of-way or on Licensor property to determine if any of the Lines may exist. In addition to the liability terms contained elsewhere in this Agreement, the LICENSEE INDEMNIFIES, DEFENDS AND HOLDS HARMLESS INDEMNITEES (DEFINED IN SECTION 7 BELOW) FOR, FROM AND AGAINST ALL LIABILITIES (DEFINED BELOW) ARISING OUT OF OR IN ANY WAY CONTRIBUTED TO BY ANY ACT OR OMISSION OF LICENSEE PARTIES THAT CAUSE OR IN ANY WAY OR DEGREE CONTRIBUTE TO (1) ANY DAMAGE TO OR DESTRUCTION OF ANY LINES BY ANY LICENSEE PARTY, (2) ANY INJURY TO OR DEATH OF ANY PERSON OR PROPERTY RELATED TO OR CONNECTED WITH SUCH DAMAGE OR DESTRUCTION, AND/OR (3) ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE BY, OR LOSS OF SERVICE BY A CUSTOMER OR USER OF SUCH LINE; EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. 6.8. Emergency or Safety Hazard. In the event that any condition on or resulting from the Premises presents an emergency or safety hazard, Licensee shall immediately remedy such condition. Licensee shall perform all activities on and about the Improvements in such a manner as not at any time to endanger or interfere with railroad operations or with Licensor’s tracks, roadbed, equipment, or property. If ordered to cease using the Improvements at any time by Licensor personnel due to any hazardous condition, Licensee shall immediately barricade and close the Improvements, and shall not use (or allow others to use) the Improvements until such time as Licensor authorizes such use. Licensee acknowledges and agrees that Licensor has no duty or obligation to monitor the use of the Improvements to determine whether such usage is safe, it being solely Licensee’s responsibility to ensure that the use of the Improvements is safe. 6.9. Notice and Location of Entry. Prior to any entry onto the Premises for any purpose that: (i) requires entry onto the embankment or (ii) will or could affect the structural integrity of the Improvements, Licensee shall notify Licensor's Milwaukee District Engineering Department at telephone (312) 322-4145. Such notice shall be given at least five (5) business days prior to any entry upon the Premises (except in emergencies, when such notice must be given as far in advance of any entry as is practicable), and shall specify both the location of entry and the nature of activities planned to be performed on the Premises. Licensee shall enter, cross and exit the Premises only on public roadways, and Licensee in all cases shall only cross tracks of Licensor located on the Premises using public roadways. 6.10. Flagging. Licensee shall not conduct any repair, maintenance or construction activities on, or be present on, any portion of the Premises or Licensor's rail corridor or property that is within twenty-five (25) feet of any active railroad track, except in the presence of a flagman; provided, however, routine maintenance activities (e.g., removal of graffiti) inside the underpass portion of the Improvements that do not affect or have any potential to affect the structural integrity of the Improvements will not require the presence of a flagman. In any event, if Licensee's repair, maintenance or construction activities could or might affect the structural integrity of the Improvements, a flagman must be present for the duration of all such activities. In any case where a flagman or flagmen are required in connection with the presence of individuals on Licensor's rail corridor or the Premises, Licensee shall provide as much advance notice as possible prior to any entry upon the Premises. Licensor shall arrange for the presence 22 7 of the flagman or flagmen as soon as practicable after receipt of such notice from Licensee. Licensee shall reimburse to Licensor, within thirty (30) days following Licensee's receipt of each bill therefor, Licensor's costs and expenses in arranging for and providing the flagman or flagmen, which shall be billed to Licensee at Licensor's then applicable standard rate. 6.11. Other Licensor Costs. Licensor shall have no obligation, monetary or non-monetary, to maintain the Improvements in the Premises. Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills therefor) for all other costs and expenses (in addition to those incurred and owing under Section 6.10 hereinabove) incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction, maintenance, and use of the Improvements situated thereon. 6.12 Licensor Estimate. Following review and approval of the Plans and Specifications, Licensor shall provide Licensee an estimate the cost of its personnel, equipment, and materials necessary during the construction of the Improvements, for such things as, without limitation, flagging and track and signal testing, These costs shall be paid solely and entirely by the Licensee and shall not be limited by the Cost Estimate, additional costs to be paid solely and entirely by the Licensee, including direct costs and administrative additives, may be necessary due to unforeseen circumstances. 6.13. No Unauthorized Tests or Digging. Licensee and Licensee's Contractors must not conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on Licensor's rail corridor located within the Premises, except after Licensee has obtained written approval from Licensor, and then only in strict accordance with the terms and any conditions of such approval. 6.14. Boring. All boring work shall be performed in strict accordance with the Plans and Specifications or any Modification Plans approved by Licensor pursuant to Section 5 above, and in strict accordance with all applicable Laws, Licensor's safety requirements and the terms and provisions of this License Agreement, including without limitation this Section 6. If any additional boring work on or near Licensor's rail corridor or property (which shall only be permitted within the Premises) is required subsequent to the completion of the Improvements, Licensee and Licensee's Contractors shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing, Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the Underground Services Association) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Upon Licensee's written request, which shall be made thirty (30) business days in advance of Licensee's proposed construction or modification of Improvements, Licensor will provide to Licensee any information that Licensor has in the possession of its Engineering Department concerning the existence and approximate location of Licensor's underground utilities and pipelines at or near the vicinity of the proposed Improvements. Prior to conducting any boring work, Licensee and Licensee's Contractors shall review all such material. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions and Licensee's and Licensee's Contractors' operations at all times shall be subject to the liability provisions set forth herein. For all bores greater than 20 inches in diameter and at a depth less than ten (10) feet below the bottom of a rail, Licensee and Licensee's Contractors shall perform a soil investigation which must be reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that excessive levels of granular material are present, Licensor may select a new location for Licensee's use, or may require Licensee and Licensee's Contractors to furnish for Licensor's review and approval, in Licensor's discretion, a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee and Licensee's Contractors at Licensee's sole cost and expense, shall carry out the approved plan in accordance with all terms thereof and hereof. Any open hole, boring or well constructed on the Premises by Licensee or Licensee's Contractors shall be safely covered and secured at all times when anyone who is not creating it, working in it or using it as permitted hereunder is present in the actual vicinity thereof. Following completion of that portion of the 23 8 work, all holes or borings constructed on the Premises shall be promptly filled in by Licensee and Licensee's Contractors to surrounding ground level with compacted bentonite grout, or otherwise secured or retired in accordance with any applicable Laws. No excavated materials may remain on Licensor's rail corridor or property for more than ten (10) days, and must be properly disposed of by Licensee and Licensee's Contractors in accordance with applicable Laws. 6.15. Preparation of Premises. If removal, alteration, relocation or reconstruction of any right-of-way fences, telephone or telegraph poles, or other facilities, is necessary by reason of the use of the Premises for the License Purpose and is approved as part of the Plans and Specifications, any such removal, alteration, relocation, or reconstruction shall be at Licensee's sole cost and expense. Licensee shall, at its own cost and expense, make arrangements with the appropriate persons or entities responsible for buildings or improvements that may have to be relocated, reconstructed or destroyed by reason of the construction and maintenance of the Improvements within the Premises in accordance with the Plans and Specifications, including, without limitation Licensor’s relocation of signalization equipment. 6.16. Fire Hazard Prevention. Licensee agrees to keep the Premises free and clear from combustible materials and to cut and remove or cause to be cut and removed at its sole expense all weeds and unwanted vegetation on the Premises, said work of cutting and removal to be done at such times and with such frequency as to comply with local Laws and abate any and all hazard of fire. 6.17. Drainage of Premises and Property. Any and all cuts and fills, excavations or embankments necessary in the construction, maintenance, or future alteration of the Premises shall be made and maintained by Licensee in such manner, form and to the extent as will provide adequate drainage of and from the Property; and wherever any such fill or embankment shall or may obstruct the natural and pre-existing drainage from the Property, Licensee shall construct and maintain such culverts or drains within the Premises as may be requisite to preserve such natural and pre-existing drainage. Licensee shall wherever necessary, construct extensions of existing drains, culverts or ditches through or along the Property, such extensions to be of adequate sectional dimensions to preserve flowage of drainage or other waters, and/or material and workmanship equally as good as those now existing. 6.18. Reconstruction of Improvements. If the Improvements are removed, raised, relocated or destroyed by an act of man or nature, any reconstruction of the existing Improvements or any construction of new Improvements will be subject to Licensor's prior written approval, which approval shall be within Licensor’s sole and absolute discretion. If reconstruction or new construction of Improvements is approved by Licensor, all such Improvements will be reconstructed or constructed on the Premises by Licensee, at Licensee's sole cost and expense, in accordance with all terms and conditions of this License Agreement, including without limitation Section 5 above. If Licensor does not approve reconstruction or construction of the Improvements, then this License Agreement will immediately terminate. Upon termination, Licensee shall, at Licensor's option, either remove the Improvements and restore the Premises, or protect the Improvements in place in accordance with Section 12. 6.19. Modification, Relocation or Removal of Improvements. If at any time Licensor desires the use of its rail corridor or Property in such a manner that, in Licensor's reasonable opinion, would be interfered with by any portion of the Improvements, Licensee, at Licensee's sole cost and expense, shall make such changes in the Improvements that, in the sole discretion of Licensor, are necessary to avoid interference with the proposed use of Licensor's Property, including, without limitation, Licensee relocating or removing all or a portion of the Improvements from the Premises. Licensor acknowledges that, in some instances, Improvements will not need to be moved or removed from the Premises, but can be protected in place, subject to approval by Licensor's engineering department. Licensee hereby waives any rights that it may have to use condemnation Laws to keep Improvements in place and not relocate or remove the Improvements where relocation or removal is required by Licensor. Where it is practicable to do so, Licensor shall provide to Licensee at least one hundred twenty (120) days prior written notice that Improvements must be modified, removed or relocated, and in circumstances where one hundred twenty (120) days notice is not practicable, Licensor shall provide to Licensee as much notice as it reasonably can, and in no case less than thirty (30) days prior written 24 9 notice. Licensee shall ensure that all Improvements are modified, removed or relocated as required on or before the date set forth in Licensor's written notice. 6.20. Signage. Prior to opening the Improvements for use by its invitees, Licensee shall, at its cost and expense, furnish and install signs, reasonably acceptable to Licensor, instructing users of the Improvements to stay on the pedestrian walkways. Section 7. Indemnification and Waiver. 7.1. Indemnification. To the fullest extent permitted by law, the Licensee agrees to indemnify, defend and hold harmless Licensor, the Regional Transportation Authority (“RTA”) and the Northeast Illinois Regional Commuter Railroad Corporation (“NIRCRC”), their respective directors, administrators, officers, agents, employees, successors, assigns and all other persons, firms and corporations acting on their behalf or with their authority or permission (collectively the “Indemnitees”) from and against any and all injuries, liabilities, losses, damages, costs, payments and expenses of every kind and nature (including, without limitation, court costs and attorneys’ fees) for claims, demands, actions, suits, proceedings, judgments, or settlements arising out of or in any way relating to or occurring in connection with: (i) the activities permitted under the terms and provisions of this Agreement; (ii) the condition of the Premises; (iii) the failure to investigate claims; or (iv) which may occur to or be incurred, by the Licensee, its employees, officers, agents, and all other persons acting on its behalf while on the Premises except to the extent such injuries, liabilities, losses, damages, costs, payments or expenses are caused by the negligence or willful misconduct of Licensor, the RTA or the NIRCRC. Licensor agrees to notify the Licensee in writing within a reasonable time of any claim of which it becomes aware which may fall within this indemnity provision. The Licensee further agrees to defend Licensor, the RTA, the NIRCRC, their respective directors, administrators, 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 provided, however, that Licensor, the RTA and the NIRCRC, may elect to participate in the defense thereof at their own expense or may, at their own expense, employ attorneys of their own selection to appear and defend the same on behalf of Licensor, the RTA, the NIRCRC, and their respective directors, administrators, officers, agents or employees. The Licensee shall not enter into any compromise or settlement of any such claims, suits, actions or proceedings without the consent of Licensor, the RTA and the NIRCRC, which consent shall not be unreasonably withheld. 7.2. Waiver of Claims. To the fullest extent permitted by law, the Licensee hereby assumes and agrees to release, acquit and waive any rights which Licensee may have against and forever discharge Licensor, the RTA, and NIRCRC their respective directors, administrators, officers, employees, agents, successors, assigns and all other persons, firms and corporations acting on their behalf or with their authority, or permission from and against any and all claims, demands or liabilities 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 out of or in any way relating to or occurring in connection with the activities permitted under the terms and provisions of this Agreement or which may occur to or be incurred by the Licensee, its employees, officers, agents and all other persons acting on the Licensee’s behalf while on the Premises or arising from the condition of the Premises during the term of this Agreement, except to the extent such injuries or damages are caused by the negligence or willful misconduct of Licensor, the RTA, or the NIRCRC. Notwithstanding anything in this Agreement to the contrary, the releases and waivers contained in this paragraph shall survive termination of this Agreement. 7.3. Survival. Notwithstanding anything in this Agreement to the contrary, the releases and waivers contained in this Section 7, shall survive termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the indemnities 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 or willful misconduct of Licensor, the RTA or the NIRCRC with respect to any construction work performed by the Licensee or those performing on behalf of or with the authority of the Licensee in violation of the Illinois Construction Contract Indemnification for Negligence Act, 740 ILCS 35/0.01 et seq. 25 10 Section 8. Insurance. Throughout the term of this License, Licensee agrees to furnish insurance in form and in such amounts as required by Metra's Risk Management Department (312-322-7073) and shall deliver to Metra's Risk Management Department certificates of insurance or such other documentation acceptable to Metra's Risk Management Department evidencing the acquisition of the required insurance. Such policies of insurance or self-insurance shall include commercial general liability, automobile, workers compensation, and when required, railroad protective liability insurance coverage as stated on Exhibit C attached to and made a part of this Agreement (“Insurance Requirements”). To the extent permitted by law, said insurance shall show The Commuter Rail Division of the Regional Transportation Authority, a division of an Illinois municipal corporation, and its affiliated separate public corporation known as the Northeast Illinois Regional Commuter Railroad Corporation, both operating under the service mark Metra, as now exists or may hereafter be constituted or acquired, and the Regional Transportation Authority, an Illinois municipal corporation, as additional insureds and shall be endorsed to assume the contractual obligations of Licensee as set forth in this Agreement. A duplicate copy of such insurance policy or a certificate of insurance and signed copy of a report showing established insurable value shall be furnished to Metra and must show on the insurance policy or the certificate of insurance that Metra will be properly notified in writing at least thirty (30) days prior to any modification or cancellation of such policy. All policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, its insurers, through policy endorsement, waive their right of subrogation against Licensor for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of its owned or leased property or property under its care, custody, or control. Licensee's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Licensor. The certificate of insurance must reflect that the above wording is included in evidenced policies. Prior to commencing work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from Licensor, a certified duplicate original of any required policy shall be furnished. Licensee WARRANTS that this License Agreement has been thoroughly reviewed by Licensee's insurance brokers or risk managers who have been instructed by Licensee to procure the insurance coverage required by this License Agreement or to ensure the availability of adequate reserves for self- insurance. Licensor may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. Failure to provide evidence as required by this Section 8 shall entitle, but not require, Licensor to terminate the License immediately. Acceptance of a certificate that does not comply with this Section 8 shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this License Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. 26 11 Section 9. Environmental. 9.1. Compliance with Environmental Laws. Licensee shall strictly comply with all federal, state and local environmental Laws in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, the Comprehensive Environmental Response, Compensation and Liability Act and the Toxic Substances Control Act (collectively referred to as the "Environmental Laws"). Licensee shall not maintain a "treatment", "storage", "transfer" or "disposal" facility, or "underground storage tank", as those terms are defined by Environmental Laws, on the Premises. Licensee shall not handle, transport, release or suffer the release of "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any Environmental Laws. 9.2. Notice of Release. Licensee shall give Licensor immediate notice to Licensor's Police Department (312) 322-2800 of any release of hazardous substances on or from the Premises, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use its best efforts to promptly respond to any release on or from the Premises; except, however, Licensee shall have no obligation to respond to any release directly resulting from the activities of Licensor. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. 9.3. Remediation of Release. In the event that Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws which occurred or may occur during the term of this License Agreement, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or the Property to the extent such release or violation is not caused by Licensor. If during the construction or subsequent maintenance of the Improvements, soils or other materials considered to be environmentally contaminated are exposed, or if Licensee shall exacerbate conditions caused by Licensor, Licensee will remove and safely dispose of or otherwise contain said contaminated soils. Determination of soils contamination and applicable disposal or containment procedures thereof will be made only by an agency having the capacity and authority to make such a determination. 9.4. Preventative Measures. Licensee shall promptly report to Licensor in writing any conditions or activities upon the Property known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License Agreement. Licensee shall promptly respond to Licensor's request for information regarding said conditions or activities. 9.5. Evidence of Compliance. Licensee agrees periodically to furnish Licensor with proof satisfactory to Licensor that Licensee is in compliance with this Section 9. Should Licensee not comply fully with the above-stated obligations of this Section 9, notwithstanding anything contained in any other provision hereof, Licensor may, at its option, terminate this License Agreement by serving five (5) days' notice of termination upon Licensee. Upon termination, Licensee shall, at Licensor's option, either remove the Improvements and restore the Premises, or protect the Improvements in place in accordance with Section 12. Section 10. PERSONAL PROPERTY WAIVER. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES OR THE PROPERTY WILL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. 27 12 Section 11. Default and Termination. 11.1. Licensor's Performance Rights. If at any time Licensee, or Licensee's Contractors, fails to properly perform its obligations under this License Agreement within thirty (30) days after receipt of written notice from Licensor, Licensor, in its sole discretion may: (i) seek specific performance of the unperformed obligations or (ii) at Licensee's sole cost and expense, may arrange for the performance of such work as Licensor deems necessary for the safety of its rail operations, activities and property, or to avoid or remove any interference with the activities or property of Licensor, or anyone or anything present on the rail corridor or property with the authority or permission of Licensor. Licensee shall promptly reimburse Licensor for all costs and expenses of work performed on Licensee's behalf upon receipt of an invoice for such costs and expenses. Licensor's failure to perform any obligations of Licensee or Licensee's Contractors shall not alter the liability allocation set forth in this License Agreement. 11.2. Licensor's Termination Rights. Licensor may, at its option, terminate this License Agreement by serving not less than fifteen (15) days' notice in writing upon Licensee: (i) if default shall be made in any of the covenants or agreements of Licensee contained in this License Agreement and such default is not cured within thirty (30) days after written notice from Licensor of such event of default, (ii) in case of any assignment without the prior written consent of Licensor, or (iii) if Licensee should abandon or cease to use the Premises for the License Purpose. Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any section of this License Agreement. 11.3. Extension of Cure Period. In any event where Licensee has commenced cure within the prescribed cure period, but cure cannot be achieved within such period despite all commercially reasonable efforts put forth by Licensee, to the extent Licensee continues to diligently pursue such cure in a manner which is reasonably satisfactory to Licensor, Licensee shall not be deemed to be in default of this Agreement and Licensor shall have no right to pursue the remedies set forth in this Section 11. 11.4. Effect of Termination or Expiration. Neither termination nor expiration will release Licensee or Licensor from either party’s respective liabilities or obligations under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration. 11.5. Non-exclusive Remedies. The remedies set forth in this Section 11 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. 11.6. Regulator Approvals. Notwithstanding any other provision herein, and in addition to any other obligation of Licensee, in the event of the termination of this License Agreement, for any reason, but expressly including expiration of the license term, Licensee shall have the sole obligation to satisfy all terms and conditions that may be imposed by any federal, state or local regulatory body as a condition to the cessation or termination of the use of the Premises as contemplated herein. This Section 11.6 shall survive the termination of this License Agreement. Section 12. Surrender of Premises. 12.1. Licensee’s Termination Rights. Licensee may, at its option, terminate this License Agreement by serving not less than fifteen (15) days’ notice in writing upon Licensor. 12.2. Removal of Improvements and Restoration. Upon termination of this License Agreement, whether by abandonment of the License, by exercise of the Licensee’s termination rights, or by the exercise of Licensor's termination rights hereunder, Licensee shall, unless otherwise directed by Licensor pursuant to Section 12.3 below, immediately perform the following at Licensee's sole cost and expense: 28 13 (a) remove all of Licensee's Improvements and all appurtenances thereto from the Premises; (b) repair and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises; (c) remedy any unsafe conditions on the Premises created or aggravated by Licensee; and (d) fill the Premises with compacted dirt in a manner substantially consistent with the condition which existed immediately prior to construction of the Improvements on the Premises. 12.3. Protection of Improvements in Place and Restoration. At Licensor's option and in its sole discretion, Licensor may direct Licensee, at Licensee's sole cost and expense, to protect all or a portion of the Improvements in place. If Licensor so elects to allow Licensee to protect all or a portion of the Improvements in place (said portion of the Improvement, including any materials to protect the same, being hereinafter referred to as the “Remaining Improvements”), Licensee shall immediately: (i) remove such of Licensee's Improvements and appurtenances thereto from the Premises as Licensor requires Licensee to remove, if any, and restore such portion of the Premises to substantially the same condition which existed as of the Effective Date except as improved by the Remaining Improvements, (ii) repair and restore any damage to the Premises arising from, growing out of, or connected with Licensee's use of the Premises and (iii) remedy any unsafe conditions on the Premises created or aggravated by Licensee. Licensee will provide a bill of sale or other conveyance document satisfactory to Licensor (but containing no representations or warranties with respect to condition or fitness for any purpose) conveying the Remaining Improvements, AS-IS, to Licensor for nominal consideration. 12.4. Limited License for Entry. If this License Agreement is terminated, Licensor may direct Licensee to undertake one or more of the actions set forth above, at Licensee's sole cost and expense, in which case Licensee shall have a limited license to enter upon the Premises to the extent necessary to undertake the actions directed by Licensor. The terms of this limited license include all of Licensee's obligations under this License Agreement. Termination will not release Licensee or Licensor from each party’s respective liabilities and obligations under this License Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Licensee's Improvements are removed and the Premises is restored to its condition as of the Effective Date or as improved by the Remaining Improvements. If Licensee fails to surrender the Premises to Licensor upon any termination of the License, all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises is surrendered. 12.5. Liability for Remaining Improvements. Upon termination of the License and conveyance of the aforementioned bill of sale pursuant to Section 12.3 above, Licensee shall have no responsibility, obligation, or liability whatsoever with respect to the Remaining Improvements, except to the extent the same resulted or arose directly from Licensee’s activities prior to the termination of the License and conveyance of the bill of sale. Licensor shall assume all on-going liability for such Improvements and hereby waives any and all claims against Licensee related to the Remaining Improvements (except to the extent arising by third parties in connection with the Licensee’s activities prior to termination of the Licensee and conveyance of the bill of sale) and indemnifies and holds harmless Licensee and the Licensee Parties from, for and against any and all claims, actions or suits for damage, loss or injury related to the Remaining Improvements or any other matters concerning the Premises arising after termination of the Licensee’s interest therein. Section 13. Liens. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the Premises or attributable to Taxes that are the responsibility of Licensee pursuant to Section 6.3. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by Law to prevent the attachment of any such liens to any portion of the Property or the 29 14 Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 13 or any other section of this License Agreement. Section 14. Notices. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if: (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Licensor: Commuter Rail Division of the Regional Transportation Authority 547 West Jackson Boulevard Chicago, Illinois 60661 Attn: General Counsel Phone: (312) 322-6699 Fax: (312) 322-6698 If to Licensee: City of Lake Forest 220 E. Deerpath Lake Forest, IL 60045 Attn: City Manager Phone: (847) 810-3672 Fax: (847) 615-4289 Section 15. No Recordation. It is understood and agreed that this License Agreement shall not be placed on public record. Section 16. Transfer Fees and Taxes. Licensee agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and fees. In the event of Licensee's failure to do so, if Licensor shall become obligated to do so, Licensee shall be liable for all costs, expenses and judgments to or against Licensor, including all of Licensor's legal fees and expenses. Section 17. Default Interest. Any amount due from Licensee to Licensor under this Agreement not paid within sixty (60) days of presentation of notice of the amount due, shall bear interest from the date due until the date paid at a rate of one and one-half percent (1 1/2%) per month or the highest rate permitted by law, whichever is less, but the payment of such interest shall not excuse or cure any default by Licensee under this Agreement. Section 18 Applicable Law. All questions concerning the interpretation or application of provisions of this License Agreement shall be decided according to the substantive Laws of the State of Illinois. Section 19 Confidentiality. Licensee shall maintain in absolute confidence the terms and conditions of this License Agreement and any other aspect relating to the License. This confidentiality provision shall not preclude Licensee from disclosing and discussing this License Agreement with its attorneys, accountants, officers, agents and contractors on a need to know basis or as authorized by Licensor or required by Law. Section 20 Joint and Several Liability. In the event that Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. Section 21 Successors and Assigns. This instrument and all of the terms, covenants and provisions hereof shall inure to the benefit of and be binding upon each of the parties hereto and their respective legal representatives, successors and assigns and shall run with and be binding upon the 30 15 Premises, provided, however, that Licensee shall not be permitted to assign this License Agreement without the prior written consent of the Licensor. Section 22 Severability. If any provision of this License Agreement is held to be illegal, invalid or unenforceable under present or future Laws, such provision will be fully severable and this License Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision is not a part hereof, and the remaining provisions hereof will remain in full force and effect. In lieu of any illegal, invalid or unenforceable provision herein, there will be added automatically as a part of this License Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. Section 23 Entire Agreement. This License Agreement is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Section 24 Time of the Essence. Time is of the essence for the performance of this License Agreement. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year first above written. LICENSOR: THE COMMUTER RAIL DIVISION OF THE REGIONAL TRANSPORTATION CORPORATION By: ____________________________________ Alexander D. Clifford Executive Director/CEO LICENSEE: THE CITY OF LAKE FOREST By: ____________________________________ Name:__________________________________ Its:_____________________________________ 31 32 33 34