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HomeMy WebLinkAboutPublic Works Packet 2025 07-15-25 AGENDA PUBLIC WORKS COMMITTEE MEETING Tuesday, July 15, 2025 6:00 p.m. East Conference Room #337 651 Prairie Pointe Drive, Yorkville, IL Citizen Comments: Minutes for Correction/Approval: June 17, 2025 New Business: 1. PW 2025-65 Resolution Approving a Change Order to a Contract to Construct a 1,500,000 Gallon Standpipe and Water Main 2. PW 2025-66 Illinois Railway, LLC License Agreement – East Alley Water Main Replacement Project 3. PW 2025-67 Illinois Railway, LLC License Agreements – 2025 Water Main Replacement Project 4. PW 2025-68 Sewer Cleaning Truck Purchase 5. PW 2025-69 Cannonball Estates SSA Plan Old Business: 1. PW 2025-62 Resolution Approving an Engineering Agreement with Engineering Enterprises, Inc. (2025 Stormwater Basin Inspections) Additional Business: United City of Yorkville 651 Prairie Pointe Drive Yorkville, Illinois 60560 Telephone: 630-553-4350 www.yorkville.il.us UNITED CITY OF YORKVILLE WORKSHEET PUBLIC WORKS COMMITTEE Tuesday, July 15, 2025 6:00 PM CITY HALL CONFERENCE ROOM --------------------------------------------------------------------------------------------------------------------------------------- CITIZEN COMMENTS: --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- MINUTES FOR CORRECTION/APPROVAL: --------------------------------------------------------------------------------------------------------------------------------------- 1. June 17, 2025 □ Approved __________ □ As presented □ With corrections --------------------------------------------------------------------------------------------------------------------------------------- NEW BUSINESS: --------------------------------------------------------------------------------------------------------------------------------------- 1. PW 2025-65 Resolution Approving a Change Order to a Contract to Construct a 1,500,000 Gallon Standpipe and Water Main □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 2. PW 2025-66 Illinois Railway, LLC License Agreement – East Alley Water Main Replacement Project □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 3. PW 2025-67 Illinois Railway, LLC License Agreements – 2025 Water Main Replacement Project □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 4. PW 2025-68 Sewer Cleaning Truck Purchase □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 5. PW 2025-69 Cannonball Estates SSA Plan □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- OLD BUSINESS: --------------------------------------------------------------------------------------------------------------------------------------- 1. PW 2025-62 Resolution Approving an Engineering Agreement with Engineering Enterprises, Inc. (2025 Stormwater Basin Inspections) □ Moved forward to CC __________ □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- ADDITIONAL BUSINESS: --------------------------------------------------------------------------------------------------------------------------------------- Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number Minutes Tracking Number Minutes of the Public Works Committee – June 17, 2025 Public Works Committee – July 15, 2025 Majority Committee Approval Minute Taker Name Department DRAFT Page 1 of 3 UNITED CITY OF YORKVILLE PUBLIC WORKS COMMITTEE Tuesday, June 17, 2025, 6:00pm Yorkville City Hall, East Conference Room #337 651 Prairie Pointe Drive, Yorkville, IL IN ATTENDANCE: Committee Members Chairman Craig Soling Alderman Dan Transier Alderman Rusty Corneils via Zoom Alderman Joe Plocher Other City Officials Community Development Director Krysti Barksdale-Noble Assistant Public Works Director John Sleezer Engineer Brad Sanderson, EEI Alderman Ken Koch Other Guests: None The meeting was called to order at 6:00pm by Chairman Craig Soling. Citizen Comments: None Previous Meeting Minutes: May 20, 2025 The minutes were approved as presented. New Business: 1. PW 2025-61 Resolution Approving an Engineering Agreement with Engineering Enterprises, Inc. (Countryside Lift Station Improvements – Design Engineering) Mr. Sleezer said this is an agreement with EEI to do the engineering for upgrading work inside the lift station. It will include new pumps and new ventilation. There has been wear and corrosion on the pumps so the work will be more extensive. A new gas detection system will also be installed to make it safer for personnel in the basement. Chairman Soling asked what brand meter will be used, however, that is not known at this time. This item moves to the consent agenda. 2. PW 2025-62 Resolution Approving An Engineering Agreement with Engineering Enterprises, Inc. (2025 Stormwater Basin Inspections) This is also an agreement with EEI. Mr. Sanderson said they have been doing stormwater basin inspections for some time and it is a requirement of the city's NPDES permit. The city has a permit through IEPA related to stormwater and water quality. He said they have been doing these inspections under the city engineering contract and EEI would prefer to have a separate formal agreement. The requirement is to inspect each basin every 5 years. This will move to the consent agenda. Page 2 of 3 3. PW 2025-63 Resolution Approving a Change Order Relating to the Eldamain Water Main Loop-South This is a project related to Cyrus 1. Mr. Sanderson said there are two contracts for the water main and this is the southern part. After the bid and design were done, the developer asked to maintain an existing railroad track on the Cyrus 1 property. It is a railroad spur from the BNSF through the property towards the ComEd substation. Cyrus 1 was originally going to eliminate the spur, then decided to keep it and EEI had to bore under the tracks rather than open cutting. The work is complete and the change is a little over $77,000 and Cyrus 1 will pay for it. It is not known why they wanted to keep the spur and Mr. Sanderson said that may change again. This will also move to the consent agenda. 4. PW 2025-64 Resolution Approving the Release of a Performance Guarantee Bond Related to Ashley Pointe (Prestwick) Subdivision Mr. Sanderson said City Council had accepted the public improvements in 2020. Now the rest of the punchlist items have been completed. The unfinished item was the park site which has been regraded and reseeded and the Parks and Rec have now signed off on it. The land still needs to be transferred and the bond won't be released until then. This item will move to the regular agenda. Old Business: 1. PW 2025-50 Resolution Approving a Bid to Construct a 1,500,000 Gallon Standpipe, Related Water Mains and Other Site Improvements (South Receiving Station Standpipe) At the May Public Works meeting, there was discussion regarding the bids. The bids came late and they were brought to the meeting. There were some questions which the contractor has now answered. One question was why the site at Restore Church was selected. Mr. Sanderson listed the reasons. A larger site (4 acres) is needed for the DuPage Water Commission transmission line, a metering station, a receiving station that the city will own and operate and a storage facility/standpipe. A certain elevation was also needed since gravity is used for the standpipe. The number of suitable sites for purchase was also limited. The church has been very cooperative throughout the process and the purchase has just been formally closed. If the city would have chosen to buy a different site, there are many funding requirements including a lengthy process with WIFIA requiring environmental sign-offs on all sites and construction work which is a 6-8 month process. Land acquisition is also very lengthy and if there is a site change, it pushes the project back 1-2 years. CB&I had asked to push the tank back to 2027/2028 which does not work for the city. There were also questions on some of the soils and foundation design. There was an increase in cost related to foundation work. EEI subs out work to do soil borings and for the tank project, they drill down 100 feet for a soil profile. It is included in the bid package for contractors. All assumed it would be a shallow foundation until just before the bids when it was changed based on soil and structural engineering. A decision was then made to go from a shallow foundation to a deep foundation and a use of piles, which is not unusual. That change was about $700,000. He recommended CB&I for timeliness since a delay will jeopardize having a tank by 2027. Only 2 companies can build this type of tank. Mr. Sanderson said he feels the city won't get a better cost by re- bidding. EEI spoke with CB&I about value engineering to revise and reduce some items to save money. A $350,000 savings is proposed on a couple items and EEI also found some items on which to save money. Mr. Sanderson recommended awarding the bid for full value of $6.5 million and they would follow up with a change order. Alderman Corneils asked if EEI had seen data as to why pylons are needed. Mr. Sanderson said it is CB&I's responsibility to design and stamp it and EEI would see the foundation once it's under contract and information would be forthcoming after the contract is awarded. He said it is not unusual to take their word for it. It is double checked after the contract is awarded, he said, and the layer of soil is the reason. Alderman Corneils asked if this is a common occurrence considering the $700,00 difference. Mr. Sanderson said bidders don't detail the foundation work until later. Typically a pre-bid meeting is held and there is an exchange of questions. With the high volume of work for the tank company, they likely did not look at it closely. He said more has to do with market conditions and probable nothing would change. It is not unusual to go to a deep foundation. Page 3 of 3 Alderman Soling added that part of the reason the other contractor withdrew is because they would not have enough time to complete it, the excess cost and many other bids they are submitting. Alderman Transier added that CB&I might not re-bid or bid it higher. This moves to the City Council regular agenda. 2. PW 2025-51 Resolution Approving an Engineering Agreement with Engineering Enterprises, Inc. (South Receiving Station Standpipe - Construction) Mr. Sleezer said this is an engineering agreement for the south receiving station. This relates to the item above. It was noted this contract comes in under budget and it moves forward to the City Council regular agenda. Additional Business: Alderman Koch asked the city to begin the process to ask Railnet to repair the tracks downtown before school starts. He said this is redone every 2-3 years and they are getting rough again. Mr. Sleezer said repairs could likely be done by regrinding and it would not require the tracks to be fully shut down. Mr. Transier suggested the Eldamain route could be used as an alternate. Anything within 50 foot of the center of the tracks is the railroad's property and any work done within that area requires railroad personnel to be on site, said Mr. Sleezer. Mr. Plocher noted the road has an easement through the railroad, not the railroad through the road. Engineer Sanderson noted his office has a contact at the railroad and they will reach out to start the conversation. There was no further business and the meeting adjourned at 6:29pm. Minutes respectfully transcribed by Marlys Young, Minute Taker Minutes transcribed from audio, not present at meeting Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/gov_officials.php Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number New Business #1 Tracking Number PW 2025-65 South Receiving Station Standpipe Change Order No. 1 Majority Consideration of Approval Consideration of Change Order No. 1 Brad Sanderson Engineering Name Department Public Works Committee – July 15, 2025 The purpose of this memo is to present Change Order No. 1 for the above-referenced project. A Change Order, as defined by the General Conditions of the Contract Documents, is a written order to the Contractor authorizing an addition, deletion or revision in the work within the general scope of the Contract Documents, or authorizing an adjustment in the Contract Price or Contract Time. Background: The United City of Yorkville and CB&I Storage Solutions, LLC. have entered into an agreement for a Contract value of $6,578,339.60 for the above-referenced project. Question Presented: Should the City approve Change Order No. 1 which would decrease the contract amount by $384,400.00. Discussion: The United City of Yorkville is constructing a new standpipe water storage tank near the intersection of Rt. 126 and Rt. 71. The City is constructing the standpipe due to its need for additional storage when the City switches over to Lake Michigan water. Throughout the bidding process EEI was in dialogue with different Contractors, who indicated they were interested in bidding the project. However, only one bid was received from CB&I Storage Solutions, LLC. The bid value stated above was higher than the budget for the project. This prompted EEI to engage in conversations with CB&I in an attempt to find value engineering options that could reduce the total cost of the project. The first option is to reduce the warranty on the tank. The project as bid had a warranty of three (3) years to allow for the Lake Michigan supply main to be built to bring water to the site. Originally it was believed that the tank would not be used until the Lake Michigan supply main was brought to the site, however, the intention now is to put the tank into service once construction is completed. By reducing the warranty to one (1) year, which is more typical for projects of this type, CB&I will provide a credit of $141,900. This value represents the risk associated with taking on a warranty for that additional time. The second option CB&I provided was to allow for the use of allowable stresses as identified in Section 14 of the AWWA D100 specification in lieu of a uniform allowance. Different design standards are available for steel storage tanks, each with varying levels of conservatism. The specifications within the South Receiving Station Standpipe bid documents currently do not allow for the use of higher allowable stresses as identified in Section 14 of the AWWA D100 specification, and alternative design basis. As a result, the tank design, as bid, was assumed to incorporate higher, conservative safety margins as it relates to the allowable stresses. However, for the design of standpipes, it is common practice to use the AWWA D100 Section 14 standard. AWWA D100 Section 14 is an alternative design basis specifically suited for tall, slender tanks with ground-supported flat-bottoms such as standpipes and offers a design Memorandum To: Bart Olson, City Administrator From: Brad Sanderson, EEI CC: Eric Dhuse, Director of Public Works Erin Willrett, Assistant City Administrator Rob Fredrickson, Finance Director Jori Behland, City Clerk Date: July 1, 2025 Subject: South Receiving Station Standpipe Change Order No. 1 methodology that allows for reduced shell thickness based on allowable compressive stresses, rather than requiring uniform thickness calculations across all vertical zones. CB&I has indicated that switching to this standard could reduce the steel weight of the tank by approximately 50 tons, resulting in significant cost savings. It is important to note that, even with this design approach, the tank must still meet all applicable load requirements such as dead weight, live loads, wind, and seismic forces. By permitting the use of AWWA D100 Section 14, the design becomes less conservative but remains structurally sound, offering a more cost-effective solution due to lighter shell construction and reduced anchorage requirements. The reduction in steel thickness allows for a cost reduction of $242,500. Action Required: Consideration of approval of Change Order No. 1 in the amount of $384,400.00. Resolution No. 2025-____ Page 1 Resolution No. 2025-_____ A RESOLUTION APPROVING A CHANGE ORDER TO A CONTRACT TO CONSTRUCT A 1,500,000 GALLON STANDPIPE AND WATER MAIN WHEREAS, the United City of Yorkville, Kendall County, Illinois (the “City”) is a duly organized and validly existing non-home rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, on June 24, 2025, the Mayor and City Council accepted a bid from CB&I Storage Tank Solutions LLC of Plainfield, Illinois (“CB&I”) in the amount of $6,578,339.60 (the “Bid”) to construct a 1,500,000 gallon standpipe and 330 feet of water main in connection with the City’s procurement of a new source water supply form the DuPage Water Commission; and, WHEREAS, after acceptance of the Bid, the City Engineer was able to renegotiate two components of the Bid including the cost of a three (3) year warranty and the use of an alternative design basis for the 1,500,000 gallon standpipe thereby reducing the Bid by a total of $384,400.00 (the “Change Order”); and, WHEREAS, the Mayor and the City Council have reviewed the Change Order and the recommendation presented by the City Engineer and have determined that approval of this Change Order is in the best interests of the City. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. The foregoing preambles are hereby adopted as if fully restated in this Section 1. Section 2. That the Change Order submitted by CB&I in the total amount of $384,400 is hereby approved. Section 3. That this Resolution shall be in full force and effect upon its passage and approval as provided by law. Resolution No. 2025-____ Page 2 Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this ____ day of __________________, A.D. 2025. ______________________________ CITY CLERK KEN KOCH _________ DAN TRANSIER _________ ARDEN JOE PLOCHER _________ CRAIG SOLING _________ CHRIS FUNKHOUSER _________ MATT MAREK _________ RUSTY CORNEILS _________ RUSTY HYETT _________ APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this ____ day of __________________, A.D. 2025. ______________________________ MAYOR Attest: ______________________________ CITY CLERK (continued) CO-01 CHANGE ORDER Order No. 1 Date: 7/15/2025 Agreement Date: NAME OF PROJECT: South Receiving Station Standpipe OWNER: United City of Yorkville CONTRACTOR: CB&I Storage Solutions, LLC The following changes are hereby made to the CONTRACT DOCUMENTS: 1. CB&I provided credit reduction for a total of $384,400 Justification: CB&I provided a credit reduction of $141,900 to reduce the warranty from three years to one year. CB&I also provided a credit reduction of $242,500 to implement API 650 allowable stresses as opposed to the specified standard. Change of CONTRACT PRICE: Original CONTRACT PRICE: $ 6,578,339.60 Current CONTRACT PRICE adjusted by previous CHANGE ORDER(S) $ 6,578,339.60 The CONTRACT PRICE due to this CHANGE ORDER will be (increased) (decreased) by: $ 384,400.00 The new CONTRACT PRICE including this CHANGE ORDER will be $ 6,193,939.60 CHANGE ORDER NO. C- Page 2 CO-02 Change to CONTRACT TIME: The CONTRACT TIME will be (increased) (decreased) by 0 calendar days. The date for completion of all work will be 11/27/2026 (Date.) Approvals Required: To be effective this order must be approved by the agency if it changes the scope or objective of the PROJECT, or as may otherwise be required by the SUPPLEMENTAL GENERAL CONDITIONS. Requested by: CONTRACTOR Recommended by: Engineering Enterprises, Inc. Accepted by: United City of Yorkville CB&I Storage Solutions 14105 S. Route 59 Plainfield, IL 60544 O: 815-439-6214 C: 224-377-9296 george.johnson@cbi.com CB&I Storage Solutions, LLC www.cbi.com June 17, 2025 United City of Yorkville | South Receiving Station Standpipe Todd Wells Project Manager Engineering Enterprises, Inc. 52-Wheeler Rd. Sugar Grove, IL 60554 Subject: Value Credit Summary Dear Todd, In response to the requested revisions to the project, we are pleased to offer the following value credits: Warranty Adjustment: Credit for changing the warranty period from 3 years to 1 year - $141,900 API Allowable Utilization: Credit for implementing API allowances - $242,500 Total Value Credit: $384,400 These credits would be reflected as a change order if the city decided to move forward. Please don’t hesitate to reach out if you have any questions or require additional information. Sincerely, On behalf of CB&I Storage Solutions, George Johnson Business Development Manager Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number New Business #2 Tracking Number PW 2025-66 East Alley Water Main Improvements – Illinois Railway, LLC License Agreement Public Works Committee – July 15, 2025 Approval Acceptance of the Illinois Railway License Agreement East Alley Water Main Improvements – Recommendation to Accept the Illinois Railway, LLC License Agreement Brad Sanderson Engineering Name Department During the upcoming fall, the City will be replacing the water main located in East Alley in downtown Yorkville ahead of the planned revitalization of that area. As a part of the project, water main must be installed underneath railroad tracks owned by Illinois Railway, LLC. The City has undergone an extensive permitting process with the railroad including conversations on the cost and language of the License Agreement. The language of the agreement has been reviewed by the City Attorney and carries a one-time license fee of $4,400. We recommend the acceptance and approval of the License Agreement with Illinois Railway, LLC. If you have any questions or require additional information, please let us know. Memorandum To: Bart Olson, City Administrator From: Brad Sanderson, EEI CC: Eric Dhuse, Director of Public Works Jori Behland, City Clerk Rob Fredrickson, Finance Director Date: July 8, 2025 Subject: East Alley Water Main Improvements – Illinois Railway, LLC License Agreement Agreement No. 410501 410501 PIPE LINE CROSSING LICENSE THIS LICENSE (“License”) shall be effective on the last date of signature set forth below (the “Effective Date”), by Illinois Railway, LLC (“Licensor”) and City of Yorkville (“Licensee”). Licensor and Licensee may sometimes be referred to as a “Party” or collectively as the “Parties.” WITNESSETH: 1. TERM: This License shall take effect as of the Effective Date, and unless sooner terminated per the terms outlined in Section 9 and 10 of this License, shall remain in effect regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor returns a fully-executed copy to Licensee. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor hereby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fresh water Pipe Line, as more particularly described in Licensee’s application, marked Exhibit “A”, attached to this License and made a part of it by this reference, situated on, across, along or over Licensor’s property at or near the City of Yorkville, County of Kendall, and State of Illinois (the “Premises”). The term Pipe Line shall be deemed to mean the actual line(s) and any and all appurtenances and that portion of Licensor’s property, in so far as they relate to said Pipe Line. The location of the Pipe Line is more particularly described on the drawing marked Exhibit “B”, attached to this License and made a part of it by this reference, but generally described as follows: A 9.05" (inch) ductile iron carrier fresh water Pipe Line inside 24" steel (inch) casing, crossing Licensor’s property, located at or near Mile Post No. 49.70, as shown on Exhibit “B”. 3. LICENSE FEE: A. Licensee shall pay to Licensor as one time License Fee the sum of four thousand four hundred dollars (USD $4,400.00), payable in advance on or prior to the Effective Date of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable, which may occur as a result of the payment of the above license or other fees payable under this License. 4. SPECIFICATIONS: A. The Pipe Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the American Railway Engineering and Maintenance of Way Association, and in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or Agreement No. 410501 410501 created thereby (collectively, “Laws”). Provided however, that all materials and workmanship employed in the construction, installation, use, maintenance, repair and operation of the Pipe Line shall be subject to the approval of the Licensor’s Chief Engineer or authorized representative. B. An underground Pipe Line crossing under track(s) at a ninety degree (90°) angle, shall be encased in conduit for a MINIMUM of forty-eight feet (48’), twenty-four feet (24’) on either side measured from the centerline of the track(s) or the full width of Licensor’s property if less than forty-eight (48’) feet. Crossings of a degree substantially greater or less than ninety degrees (90°) shall be encased in conduit for the full width of the track structure. The top of the encasement pipe shall be a MINIMUM of five and one half (5½’) feet beneath surface of ground at all points within Licensor’s property. C. Any appurtenance to the Pipe Line shall be constructed and maintained to a MINIMUM clearance of no less than fifteen (15’) feet from the centerline of any track(s). The side clearance of fifteen (15’) feet shall be maintained for a height of twenty-seven feet (27’). All Pipe Line(s) shall be constructed, as nearly as possible to cross under any track(s) at a right angle to said track(s). D. Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Pipe Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Pipe Line, Licensee shall be required to execute Licensor’s standard Right of Entry for any maintenance or repair work on the Pipe Line that requires entry onto Licensor’s property or right-of-way. The Right of Entry Permit fee shall be waived for emergency repair and routine maintenance on the pipeline. E. Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. F. Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Pipe Line and the construction or use of the Pipe Line or other of Licensee’s facilities on Licensor’s property or the operation of any of them. G. Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee’s sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor’s property which may be affected by the relocation, installation, construction or any maintenance or repair of the Pipe Line. Licensee’s Pipe Line will not unreasonably interfere with the use of Licensor’s property, or create any undue hardship on the person or entity occupying said property. Agreement No. 410501 410501 6. RISK, LIABILITY, INDEMNITY: A. Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. B. a. LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE “INDEMNITEES”) AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES, ATTORNEYS’ FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. b. THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS’ COMPENSATION ACT OR FEDERAL EMPLOYERS’ LIABILITY ACT. c. LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD “LICENSOR” AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. d. AS A PRECONDITION TO LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR Agreement No. 410501 410501 INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY LICENSEE. 7. INSURANCE: A. Licensee shall purchase and maintain insurance as specified below covering the License, all the work, services, and obligations assumed or performed hereunder, from the Effective Date until termination, unless the duration is stated to be otherwise, with insurance companies assigned a current Financial Strength Rating of at least A and Financial Size Category of X by A. M. Best Company: i. Commercial General Liability Insurance written on an occurrence basis subject to limit of $1,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander with an annual aggregate limit of no less than $2,000,000. Policy coverage is to be based on usual Insurance Services Office policy forms to include, but not be limited to: Operations and Premises Liability, Completed Operations and Products Liability, Personal Injury and Advertising Liability, and Contractual Liability Insurance. Completed Operations coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. General Liability policies procured by Licensee shall be amended to delete all railroad exclusions including exclusions for working on or within fifty feet (50’) of any railroad property, and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing (CG 24 17 endorsement or equivalent). ii. Workers’ Compensation and Employers’ Liability Insurance providing statutory workers’ compensation benefits mandated under applicable state law and Employers’ Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. If coverage is provided through a monopolistic state fund, a stop gap endorsement on either the Commercial General Liability or Workers’ Compensation Policy is required to meet the Employers’ Liability Insurance requirement. iii. Business Automobile Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury and property damage. Policy coverage shall be based on Insurance Services Office policy forms referred to as Business Automobile Policy to cover motor vehicles owned, leased, rented, hired or used on behalf of Licensee. If applicable to this License and applicable under federal law, Licensee shall provide an MCS 90 endorsement. iv. Umbrella Liability Insurance written on an occurrence basis subject to a limit of $4,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander. Policy coverage is to be at least as broad as primary coverages. Umbrella coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. Umbrella Liability shall apply to Commercial General Liability, Employers’ Liability, and Business Automobile Liability Insurances. The required limits of insurance may be satisfied by a combination of Primary and Umbrella or Excess Liability Insurance. B. All insurance required of Licensee with the exception of Workers’ Compensation and Employers’ Liability shall include Licensor and any subsidiary, owner, parent or affiliates of Licensor, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, Agreement No. 410501 410501 shareholders, and employees (“Required Parties”) as additional insured and include wording which states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. With respect to Commercial General Liability Insurance, Required Parties shall be included as additional insured for Ongoing Operations and for Completed Operations to the extent permitted by law. C. All insurance shall provide Licensor a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. D. If Licensee cannot obtain an occurrence based policy for any required coverage, the policy may be written on a claims-made basis with a retroactive date on or before the Effective Date of this License. Licensee shall maintain such policy on a continuous basis. If there is a change in insurance companies or the policy is canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. E. Licensee shall file with Licensor on or before the Effective Date of this License a valid certificate of insurance for all required insurance policies. Each certificate shall identify the Required Parties as additional insured as required and state that Licensor shall receive a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. Licensee shall supply updated certificates of insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as required by this License. F. All insurance policies required of Licensee shall include a waiver of any right of subrogation written in favor of the Required Parties. G. Notwithstanding the foregoing, Licensee may self-insure for any of the above required insurance coverages subject to the requirements specified in this paragraph. Licensee shall provide Licensor with audited financial statements and Licensor may, at its discretion, which shall not be unreasonably withheld, deem such financial statements acceptable prior to authorizing Licensee to self-insure. Licensee shall provide a letter of self-insurance to Licensor specifically stating which lines of coverage are self-insured and the amount of self-insurance maintained. The amount of any excess insurance that attaches to self-insurance below the required limits of insurance shall be identified in the letter and evidenced on a certificate of insurance. This letter of self-insurance shall be signed by Licensee’s Risk Manager or another designated authorized signatory. With respect to Workers’ Compensation, Licensee shall also provide state-issued self-insured authorization documents to Licensor, where applicable by state law. H. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent or broker who have been instructed by Licensee to procure the insurance coverage required by this License. Upon signature of this License and renewal of insurance, if Licensee fails to maintain or provide evidence to Licensor of any insurance coverage required under this License, Licensor may terminate this License effective immediately. I. Licensee’s compliance with obtaining the required insurance coverage shall in no way limit the indemnification rights and obligations specified in this License. 8. WAIVER: Agreement No. 410501 410501 Licensee waives the right to question the validity of this License or any of the terms and provisions of it, or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Pipe Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause whatsoever. Licensee further agrees to indemnify and save harmless Licensor and to assume all risk, responsibility and liability (including any expenses, attorneys’ fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor’s title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: A. Licensee will at all times maintain the Pipe Line in a safe and secure manner and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Pipe Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor’s railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Pipe Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Pipe Line as required or remove the Pipe Line, or as much of the Pipe Line as is located upon the portion of the property as required by Licensor. B. If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Pipe Line or to make any necessary repairs, or to relocate the Pipe Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Pipe Line to be removed from Licensor’s property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen percent (15%) of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10) days advance written notice of its intention to do so. C. In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Pipe Line, this License shall continue in force and be applicable to the portion or portions of the Pipe Line remaining from time to time until the entire Pipe Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATON: If Licensee fails to keep or perform any of Licensee’s covenants contained in this License, upon ninety (90) days written notice to Licensee and an opportunity to cure with such cure being completed within such ninety (90) day period or if such cure cannot be completed within ninety (90) days, in such time as necessary so long as Licensee is diligently pursuing such cure and in no event longer than one hundred eighty (180) days, Licensor shall have the right to terminate this License. In addition to the foregoing, Licensor shall have the right to terminate this License and the rights granted hereunder, after delivering to Licensee written notice of such termination no less than ninety (90) days prior to each anniversary of the effective date thereof, upon the occurrence of any of the following events: Agreement No. 410501 410501 a. If Licensee shall permanently discontinue the use of operations of the Pipe Line; or b. If Licensor shall be required by any change in applicable Federal law after the Effective Date to remove, relocate, reconstruct, or discontinue operation of Licensor’s railroad and any such removal, relocation, reconstruction, or discontinuance of operation of Licensor’s railroad cannot be accomplished without removal of the Pipeline; or c. If Licensor determines and substantiates to Licensee that the Pipe Line endangers or threatens Licensor’s employees or the safe operation or maintenance of the railroad. 11. RESTORATION: Upon termination of this License, in accordance with the provisions of Section 10 of this License, Licensee shall promptly remove the Pipe Line from Licensor’s property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Pipe Line within ninety days (90) after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.B of this License. 12. MISCELLANEOUS: A. This License is executed by all Parties under current interpretation of any and all applicable Laws. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. B. In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. C. Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: If to Licensor: If to Licensee: Illinois Railway, LLC ATTN: Real Estate 252 Clayton Street, 4th Floor Denver, Colorado 80206 ATTN: City of Yorkville 651 Prairie Pointe Dr. Yorkville, IL 60560 WITH A COPY TO: Phone: (630) 770-9915 ATTN: General Counsel 252 Clayton Street, 4th Floor Denver, Colorado 80206 Agreement No. 410501 410501 D. No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. E. This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Pipe Line by Licensee. F. This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee’s successor in interest to this License. G. Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee’s facilities. H. Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. I. The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. J. Licensee further indemnifies Licensor against any and all liens that may be placed against Licensor’s property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. K. In the event that Licensor shall incur any costs or expenses, including attorneys’ fees and costs, in enforcing Licensee’s covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. L. This License shall be governed under the laws of the State of Illinois, and venue shall be proper in the federal or state courts of the State of Illinois for any action arising under the terms of this License or Agreement No. 410501 410501 performance of it. The section headings of this License have been inserted for convenience of reference only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. M. Licensor’s remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. N. All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. O. Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. P. Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. Q. All exhibits attached to this License are incorporated by reference as if fully set forth in this License. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: Licensor: Illinois Railway, LLC Licensee: City of Yorkville By: \s2\ By: \s1\ Name: \n2\ Name: \n1\ Title: \t2\ Title: \t1\ Date: \d2\ Date: \d1\ 006Jx00000XjfiwIAB 0 E Agreement No. 410501 410501 Exhibit A Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 Agreement No. 410501 410501 EXHIBIT B Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number New Business #3 Tracking Number PW 2025-67 2025 Water Main Replacement – Illinois Railway, LLC License Agreements Public Works Committee – July 15, 2025 Majority Acceptance of the Illinois Railway, LLC License Agreements 2025 Water Main Replacement – Recommendation to Accept the Illinois Railway, LLC License Agreements Brad Sanderson Engineering Name Department During the upcoming summer, the City will be replacing significant stretches of water main located in downtown Yorkville. As a part of the project, water main must be installed underneath railroad tracks owned by Illinois Railway, LLC in four separate locations. The City has undergone an extensive permitting process with the railroad including conversations on the cost and language of the License Agreements. There are four license agreements, one for each crossing located at Adams and Hydraulic, State and Hydraulic, S. Main and Hydraulic, and West Alley and Hydraulic. The License Agreement language has been reviewed by the City Attorney and each carry a one-time license fee of $3,700 for a total fee amount of $14,800. We recommend the acceptance and approval of the License Agreements with Illinois Railway, LLC. If you have any questions or require additional information, please let us know. Memorandum To: Bart Olson, City Administrator From: Brad Sanderson, EEI CC: Eric Dhuse, Director of Public Works Jori Behland, City Clerk Rob Fredrickson, Finance Director Date: July 15, 2025 Subject: 2025 Water Main Replacement – Illinois Railway, LLC License Agreements Agreement No. 410367 410367.a PIPE LINE CROSSING LICENSE THIS LICENSE (“License”) shall be effective on the last date of signature set forth below (the “Effective Date”), by Illinois Railway, LLC (“Licensor”) and City of Yorkville (“Licensee”). Licensor and Licensee may sometimes be referred to as a “Party” or collectively as the “Parties.” WITNESSETH: 1. TERM: This License shall take effect as of the Effective Date, and unless sooner terminated per the terms outlined in Section 9 and 10 of this License, shall remain in effect regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor returns a fully-executed copy to Licensee. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor hereby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fresh water Pipe Line, as more particularly described in Licensee’s application, marked Exhibit “A”, attached to this License and made a part of it by this reference, situated on, across, along or over Licensor’s property at or near the City of Yorkville, County of Kendall, and State of Illinois (the “Premises”). The term Pipe Line shall be deemed to mean the actual line(s) and any and all appurtenances and that portion of Licensor’s property, in so far as they relate to said Pipe Line. The location of the Pipe Line is more particularly described on the drawing marked Exhibit “B”, attached to this License and made a part of it by this reference, but generally described as follows: A 9.05"(inch) carrier inside a 16" (inch) casing diameter, fresh water Pipe Line crossing Licensor’s property, located at or near Mile Post No. 49.91, as shown on Exhibit “B”. 3. LICENSE FEE: A. Licensee shall pay to Licensor as one time License Fee the sum of three thousand seven hundred dollars (USD $3,700.00), payable in advance on or prior to the Effective Date of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable, which may occur as a result of the payment of the above license or other fees payable under this License. 4. SPECIFICATIONS: A. The Pipe Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the American Railway Engineering and Maintenance of Way Association, and in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or created thereby (collectively, “Laws”). Provided however, that all materials and workmanship employed Agreement No. 410367 410367.a in the construction, installation, use, maintenance, repair and operation of the Pipe Line shall be subject to the approval of the Licensor’s Chief Engineer or authorized representative. B. An underground Pipe Line crossing under track(s) at a ninety degree (90°) angle, shall be encased in conduit for a MINIMUM of forty-eight feet (48’), twenty-four feet (24’) on either side measured from the centerline of the track(s) or the full width of Licensor’s property if less than forty-eight (48’) feet. Crossings of a degree substantially greater or less than ninety degrees (90°) shall be encased in conduit for the full width of the track structure. The top of the encasement pipe shall be a MINIMUM of five and one half (5½’) feet beneath surface of ground at all points within Licensor’s property. C. Any appurtenance to the Pipe Line shall be constructed and maintained to a MINIMUM clearance of no less than fifteen (15’) feet from the centerline of any track(s). The side clearance of fifteen (15’) feet shall be maintained for a height of twenty-seven feet (27’). All Pipe Line(s) shall be constructed, as nearly as possible to cross under any track(s) at a right angle to said track(s). D. Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Pipe Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Pipe Line, Licensee shall be required to execute Licensor’s standard Right of Entry for any maintenance or repair work on the Pipe Line that requires entry onto Licensor’s property or right-of-way. The Right of Entry Permit fee shall be waived for emergency repair and routine maintenance on the pipeline. E. Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. F. Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Pipe Line and the construction or use of the Pipe Line or other of Licensee’s facilities on Licensor’s property or the operation of any of them. G. Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee’s sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor’s property which may be affected by the relocation, installation, construction or any maintenance or repair of the Pipe Line. Licensee’s Pipe Line will not unreasonably interfere with the use of Licensor’s property, or create any undue hardship on the person or entity occupying said property. Agreement No. 410367 410367.a 6. RISK, LIABILITY, INDEMNITY: A. Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. B. a. LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE “INDEMNITEES”) AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES, ATTORNEYS’ FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. b. THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS’ COMPENSATION ACT OR FEDERAL EMPLOYERS’ LIABILITY ACT. c. LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD “LICENSOR” AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. d. AS A PRECONDITION TO LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY Agreement No. 410367 410367.a LICENSEE. 7. INSURANCE: A. Licensee shall purchase and maintain insurance as specified below covering the License, all the work, services, and obligations assumed or performed hereunder, from the Effective Date until termination, unless the duration is stated to be otherwise, with insurance companies assigned a current Financial Strength Rating of at least A and Financial Size Category of X by A. M. Best Company: i. Commercial General Liability Insurance written on an occurrence basis subject to limit of $1,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander with an annual aggregate limit of no less than $2,000,000. Policy coverage is to be based on usual Insurance Services Office policy forms to include, but not be limited to: Operations and Premises Liability, Completed Operations and Products Liability, Personal Injury and Advertising Liability, and Contractual Liability Insurance. Completed Operations coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. General Liability policies procured by Licensee shall be amended to delete all railroad exclusions including exclusions for working on or within fifty feet (50’) of any railroad property, and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing (CG 24 17 endorsement or equivalent). ii. Workers’ Compensation and Employers’ Liability Insurance providing statutory workers’ compensation benefits mandated under applicable state law and Employers’ Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. If coverage is provided through a monopolistic state fund, a stop gap endorsement on either the Commercial General Liability or Workers’ Compensation Policy is required to meet the Employers’ Liability Insurance requirement. iii. Business Automobile Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury and property damage. Policy coverage shall be based on Insurance Services Office policy forms referred to as Business Automobile Policy to cover motor vehicles owned, leased, rented, hired or used on behalf of Licensee. If applicable to this License and applicable under federal law, Licensee shall provide an MCS 90 endorsement. iv. Umbrella Liability Insurance written on an occurrence basis subject to a limit of $4,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander. Policy coverage is to be at least as broad as primary coverages. Umbrella coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. Umbrella Liability shall apply to Commercial General Liability, Employers’ Liability, and Business Automobile Liability Insurances. The required limits of insurance may be satisfied by a combination of Primary and Umbrella or Excess Liability Insurance. B. All insurance required of Licensee with the exception of Workers’ Compensation and Employers’ Liability shall include Licensor and any subsidiary, owner, parent or affiliates of Licensor, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, shareholders, and employees (“Required Parties”) as additional insured and include wording which Agreement No. 410367 410367.a states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. With respect to Commercial General Liability Insurance, Required Parties shall be included as additional insured for Ongoing Operations and for Completed Operations to the extent permitted by law. C. All insurance shall provide Licensor a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. D. If Licensee cannot obtain an occurrence based policy for any required coverage, the policy may be written on a claims-made basis with a retroactive date on or before the Effective Date of this License. Licensee shall maintain such policy on a continuous basis. If there is a change in insurance companies or the policy is canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. E. Licensee shall file with Licensor on or before the Effective Date of this License a valid certificate of insurance for all required insurance policies. Each certificate shall identify the Required Parties as additional insured as required and state that Licensor shall receive a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. Licensee shall supply updated certificates of insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as required by this License. F. All insurance policies required of Licensee shall include a waiver of any right of subrogation written in favor of the Required Parties. G. Notwithstanding the foregoing, Licensee may self-insure for any of the above required insurance coverages subject to the requirements specified in this paragraph. Licensee shall provide Licensor with audited financial statements and Licensor may, at its discretion, which shall not be unreasonably withheld, deem such financial statements acceptable prior to authorizing Licensee to self-insure. Licensee shall provide a letter of self-insurance to Licensor specifically stating which lines of coverage are self-insured and the amount of self-insurance maintained. The amount of any excess insurance that attaches to self-insurance below the required limits of insurance shall be identified in the letter and evidenced on a certificate of insurance. This letter of self-insurance shall be signed by Licensee’s Risk Manager or another designated authorized signatory. With respect to Workers’ Compensation, Licensee shall also provide state-issued self-insured authorization documents to Licensor, where applicable by state law. H. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent or broker who have been instructed by Licensee to procure the insurance coverage required by this License. Upon signature of this License and renewal of insurance, if Licensee fails to maintain or provide evidence to Licensor of any insurance coverage required under this License, Licensor may terminate this License effective immediately. I. Licensee’s compliance with obtaining the required insurance coverage shall in no way limit the indemnification rights and obligations specified in this License. 8. WAIVER: Licensee waives the right to question the validity of this License or any of the terms and provisions of it, Agreement No. 410367 410367.a or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Pipe Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause whatsoever. Licensee further agrees to indemnify and save harmless Licensor and to assume all risk, responsibility and liability (including any expenses, attorneys’ fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor’s title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: A. Licensee will at all times maintain the Pipe Line in a safe and secure manner and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Pipe Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor’s railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Pipe Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Pipe Line as required or remove the Pipe Line, or as much of the Pipe Line as is located upon the portion of the property as required by Licensor. B. If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Pipe Line or to make any necessary repairs, or to relocate the Pipe Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Pipe Line to be removed from Licensor’s property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen percent (15%) of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10) days advance written notice of its intention to do so. C. In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Pipe Line, this License shall continue in force and be applicable to the portion or portions of the Pipe Line remaining from time to time until the entire Pipe Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATON: If Licensee fails to keep or perform any of Licensee’s covenants contained in this License, upon ninety (90) days written notice to Licensee and an opportunity to cure with such cure being completed within such ninety (90) day period or if such cure cannot be completed within ninety (90) days, in such time as necessary so long as Licensee is diligently pursuing such cure and in no event longer than one hundred eighty (180) days, Licensor shall have the right to terminate this License. In addition to the foregoing, Licensor shall have the right to terminate this License and the rights granted hereunder, after delivering to Licensee written notice of such termination no less than ninety (90) days prior to each anniversary of the effective date thereof, upon the occurrence of any of the following events: Agreement No. 410367 410367.a a. If Licensee shall permanently discontinue the use of operations of the Pipe Line; or b. If Licensor shall be required by any change in applicable Federal law after the Effective Date to remove, relocate, reconstruct, or discontinue operation of Licensor’s railroad and any such removal, relocation, reconstruction, or discontinuance of operation of Licensor’s railroad cannot be accomplished without removal of the Pipeline; or c. If Licensor determines and substantiates to Licensee that the Pipe Line endangers or threatens Licensor’s employees or the safe operation or maintenance of the railroad. 11. RESTORATION: Upon termination of this License, in accordance with the provisions of Section 10 of this License, Licensee shall promptly remove the Pipe Line from Licensor’s property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Pipe Line within ninety days (90) after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.B of this License. 12. MISCELLANEOUS: A. This License is executed by all Parties under current interpretation of any and all applicable Laws. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. B. In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. C. Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: If to Licensor: If to Licensee: ATTN: Real Estate 252 Clayton Street, 4th Floor Denver, Colorado 80206 ATTN: City of Yorkville 651 Prairie Pointe Dr. Yorkville, IL 60560 WITH A COPY TO: Phone: (630) 770-9915 ATTN: General Counsel 252 Clayton Street, 4th Floor Denver, Colorado 80206 D. No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall Agreement No. 410367 410367.a any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. E. This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Pipe Line by Licensee. F. This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee’s successor in interest to this License. G. Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee’s facilities. H. Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. I. The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. J. Licensee further indemnifies Licensor against any and all liens that may be placed against Licensor’s property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. K. In the event that Licensor shall incur any costs or expenses, including attorneys’ fees and costs, in enforcing Licensee’s covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. L. This License shall be governed under the laws of the State of Illinois, and venue shall be proper in the federal or state courts of the State of Illinois for any action arising under the terms of this License or performance of it. The section headings of this License have been inserted for convenience of reference Agreement No. 410367 410367.a only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. M. Licensor’s remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. N. All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. O. Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. P. Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. Q. All exhibits attached to this License are incorporated by reference as if fully set forth in this License. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: Licensor: Illinois Railway, LLC Licensee: City of Yorkville By: \s2\ By: \s1\ Name: \n2\ Name: \n1\ Title: \t2\ Title: \t1\ Date: \d2\ Date: \d1\ 006Jx00000XjfiwIAB 0 E Agreement No. 410367 410367.a Exhibit A Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a g00000kt8D5AAI Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a Agreement No. 410367 410367.a EXHIBIT B Agreement No. 410368 410368.a PIPE LINE CROSSING LICENSE THIS LICENSE (“License”) shall be effective on the last date of signature set forth below (the “Effective Date”), by Illinois Railway, LLC (“Licensor”) and City of Yorkville (“Licensee”). Licensor and Licensee may sometimes be referred to as a “Party” or collectively as the “Parties.” WITNESSETH: 1. TERM: This License shall take effect as of the Effective Date, and unless sooner terminated per the terms outlined in Section 9 and 10 of this License, shall remain in effect regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor returns a fully-executed copy to Licensee. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor hereby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fresh water Pipe Line, as more particularly described in Licensee’s application, marked Exhibit “A”, attached to this License and made a part of it by this reference, situated on, across, along or over Licensor’s property at or near the City of Yorkville, County of Kendall, and State of Illinois (the “Premises”). The term Pipe Line shall be deemed to mean the actual line(s) and any and all appurtenances and that portion of Licensor’s property, in so far as they relate to said Pipe Line. The location of the Pipe Line is more particularly described on the drawing marked Exhibit “B”, attached to this License and made a part of it by this reference, but generally described as follows: A 9.05" (inch) carrier inside 16" (inch) casing diameter, fresh water Pipe Line crossing Licensor’s property, located at or near Mile Post No. 49.85, as shown on Exhibit “B”. 3. LICENSE FEE: A. Licensee shall pay to Licensor as one time License Fee the sum of three thousand seven hundred dollars (USD $3,700.00), payable in advance on or prior to the Effective Date of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable, which may occur as a result of the payment of the above license or other fees payable under this License. 4. SPECIFICATIONS: A. The Pipe Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the American Railway Engineering and Maintenance of Way Association, and in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or Agreement No. 410368 410368.a created thereby (collectively, “Laws”). Provided however, that all materials and workmanship employed in the construction, installation, use, maintenance, repair and operation of the Pipe Line shall be subject to the approval of the Licensor’s Chief Engineer or authorized representative. B. An underground Pipe Line crossing under track(s) at a ninety degree (90°) angle, shall be encased in conduit for a MINIMUM of forty-eight feet (48’), twenty-four feet (24’) on either side measured from the centerline of the track(s) or the full width of Licensor’s property if less than forty-eight (48’) feet. Crossings of a degree substantially greater or less than ninety degrees (90°) shall be encased in conduit for the full width of the track structure. The top of the encasement pipe shall be a MINIMUM of five and one half (5½’) feet beneath surface of ground at all points within Licensor’s property. C. Any appurtenance to the Pipe Line shall be constructed and maintained to a MINIMUM clearance of no less than fifteen (15’) feet from the centerline of any track(s). The side clearance of fifteen (15’) feet shall be maintained for a height of twenty-seven feet (27’). All Pipe Line(s) shall be constructed, as nearly as possible to cross under any track(s) at a right angle to said track(s). D. Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Pipe Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Pipe Line, Licensee shall be required to execute Licensor’s standard Right of Entry for any maintenance or repair work on the Pipe Line that requires entry onto Licensor’s property or right-of-way. The Right of Entry Permit fee shall be waived for emergency repair and routine maintenance on the pipeline. E. Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. F. Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Pipe Line and the construction or use of the Pipe Line or other of Licensee’s facilities on Licensor’s property or the operation of any of them. G. Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee’s sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor’s property which may be affected by the relocation, installation, construction or any maintenance or repair of the Pipe Line. Licensee’s Pipe Line will not unreasonably interfere with the use of Licensor’s property, or create any undue hardship on the person or entity occupying said property. Agreement No. 410368 410368.a 6. RISK, LIABILITY, INDEMNITY: A. Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. B. a. LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE “INDEMNITEES”) AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES, ATTORNEYS’ FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. b. THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS’ COMPENSATION ACT OR FEDERAL EMPLOYERS’ LIABILITY ACT. c. LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD “LICENSOR” AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. d. AS A PRECONDITION TO LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR Agreement No. 410368 410368.a INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY LICENSEE. 7. INSURANCE: A. Licensee shall purchase and maintain insurance as specified below covering the License, all the work, services, and obligations assumed or performed hereunder, from the Effective Date until termination, unless the duration is stated to be otherwise, with insurance companies assigned a current Financial Strength Rating of at least A and Financial Size Category of X by A. M. Best Company: i. Commercial General Liability Insurance written on an occurrence basis subject to limit of $1,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander with an annual aggregate limit of no less than $2,000,000. Policy coverage is to be based on usual Insurance Services Office policy forms to include, but not be limited to: Operations and Premises Liability, Completed Operations and Products Liability, Personal Injury and Advertising Liability, and Contractual Liability Insurance. Completed Operations coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. General Liability policies procured by Licensee shall be amended to delete all railroad exclusions including exclusions for working on or within fifty feet (50’) of any railroad property, and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing (CG 24 17 endorsement or equivalent). ii. Workers’ Compensation and Employers’ Liability Insurance providing statutory workers’ compensation benefits mandated under applicable state law and Employers’ Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. If coverage is provided through a monopolistic state fund, a stop gap endorsement on either the Commercial General Liability or Workers’ Compensation Policy is required to meet the Employers’ Liability Insurance requirement. iii. Business Automobile Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury and property damage. Policy coverage shall be based on Insurance Services Office policy forms referred to as Business Automobile Policy to cover motor vehicles owned, leased, rented, hired or used on behalf of Licensee. If applicable to this License and applicable under federal law, Licensee shall provide an MCS 90 endorsement. iv. Umbrella Liability Insurance written on an occurrence basis subject to a limit of $4,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander. Policy coverage is to be at least as broad as primary coverages. Umbrella coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. Umbrella Liability shall apply to Commercial General Liability, Employers’ Liability, and Business Automobile Liability Insurances. The required limits of insurance may be satisfied by a combination of Primary and Umbrella or Excess Liability Insurance. B. All insurance required of Licensee with the exception of Workers’ Compensation and Employers’ Liability shall include Licensor and any subsidiary, owner, parent or affiliates of Licensor, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, Agreement No. 410368 410368.a shareholders, and employees (“Required Parties”) as additional insured and include wording which states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. With respect to Commercial General Liability Insurance, Required Parties shall be included as additional insured for Ongoing Operations and for Completed Operations to the extent permitted by law. C. All insurance shall provide Licensor a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. D. If Licensee cannot obtain an occurrence based policy for any required coverage, the policy may be written on a claims-made basis with a retroactive date on or before the Effective Date of this License. Licensee shall maintain such policy on a continuous basis. If there is a change in insurance companies or the policy is canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. E. Licensee shall file with Licensor on or before the Effective Date of this License a valid certificate of insurance for all required insurance policies. Each certificate shall identify the Required Parties as additional insured as required and state that Licensor shall receive a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. Licensee shall supply updated certificates of insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as required by this License. F. All insurance policies required of Licensee shall include a waiver of any right of subrogation written in favor of the Required Parties. G. Notwithstanding the foregoing, Licensee may self-insure for any of the above required insurance coverages subject to the requirements specified in this paragraph. Licensee shall provide Licensor with audited financial statements and Licensor may, at its discretion, which shall not be unreasonably withheld, deem such financial statements acceptable prior to authorizing Licensee to self-insure. Licensee shall provide a letter of self-insurance to Licensor specifically stating which lines of coverage are self-insured and the amount of self-insurance maintained. The amount of any excess insurance that attaches to self-insurance below the required limits of insurance shall be identified in the letter and evidenced on a certificate of insurance. This letter of self-insurance shall be signed by Licensee’s Risk Manager or another designated authorized signatory. With respect to Workers’ Compensation, Licensee shall also provide state-issued self-insured authorization documents to Licensor, where applicable by state law. H. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent or broker who have been instructed by Licensee to procure the insurance coverage required by this License. Upon signature of this License and renewal of insurance, if Licensee fails to maintain or provide evidence to Licensor of any insurance coverage required under this License, Licensor may terminate this License effective immediately. I. Licensee’s compliance with obtaining the required insurance coverage shall in no way limit the indemnification rights and obligations specified in this License. 8. WAIVER: Agreement No. 410368 410368.a Licensee waives the right to question the validity of this License or any of the terms and provisions of it, or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Pipe Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause whatsoever. Licensee further agrees to indemnify and save harmless Licensor and to assume all risk, responsibility and liability (including any expenses, attorneys’ fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor’s title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: A. Licensee will at all times maintain the Pipe Line in a safe and secure manner and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Pipe Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor’s railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Pipe Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Pipe Line as required or remove the Pipe Line, or as much of the Pipe Line as is located upon the portion of the property as required by Licensor. B. If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Pipe Line or to make any necessary repairs, or to relocate the Pipe Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Pipe Line to be removed from Licensor’s property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen percent (15%) of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10) days advance written notice of its intention to do so. C. In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Pipe Line, this License shall continue in force and be applicable to the portion or portions of the Pipe Line remaining from time to time until the entire Pipe Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATON: If Licensee fails to keep or perform any of Licensee’s covenants contained in this License, upon ninety (90) days written notice to Licensee and an opportunity to cure with such cure being completed within such ninety (90) day period or if such cure cannot be completed within ninety (90) days, in such time as necessary so long as Licensee is diligently pursuing such cure and in no event longer than one hundred eighty (180) days, Licensor shall have the right to terminate this License. In addition to the foregoing, Licensor shall have the right to terminate this License and the rights granted hereunder, after delivering to Licensee written notice of such termination no less than ninety (90) days prior to each anniversary of the effective date thereof, upon the occurrence of any of the following events: Agreement No. 410368 410368.a a. If Licensee shall permanently discontinue the use of operations of the Pipe Line; or b. If Licensor shall be required by any change in applicable Federal law after the Effective Date to remove, relocate, reconstruct, or discontinue operation of Licensor’s railroad and any such removal, relocation, reconstruction, or discontinuance of operation of Licensor’s railroad cannot be accomplished without removal of the Pipeline; or c. If Licensor determines and substantiates to Licensee that the Pipe Line endangers or threatens Licensor’s employees or the safe operation or maintenance of the railroad. 11. RESTORATION: Upon termination of this License, in accordance with the provisions of Section 10 of this License, Licensee shall promptly remove the Pipe Line from Licensor’s property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Pipe Line within ninety days (90) after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.B of this License. 12. MISCELLANEOUS: A. This License is executed by all Parties under current interpretation of any and all applicable Laws. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. B. In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. C. Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: If to Licensor: If to Licensee: ATTN: Real Estate 252 Clayton Street, 4th Floor Denver, Colorado 80206 ATTN: City of Yorkville 651 Prairie Pointe Dr. Yorkville, IL 60560 WITH A COPY TO: Phone: (630) 770-9915 ATTN: General Counsel 252 Clayton Street, 4th Floor Denver, Colorado 80206 Agreement No. 410368 410368.a D. No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. E. This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Pipe Line by Licensee. F. This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee’s successor in interest to this License. G. Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee’s facilities. H. Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. I. The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. J. Licensee further indemnifies Licensor against any and all liens that may be placed against Licensor’s property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. K. In the event that Licensor shall incur any costs or expenses, including attorneys’ fees and costs, in enforcing Licensee’s covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. L. This License shall be governed under the laws of the State of Illinois, and venue shall be proper in the federal or state courts of the State of Illinois for any action arising under the terms of this License or Agreement No. 410368 410368.a performance of it. The section headings of this License have been inserted for convenience of reference only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. M. Licensor’s remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. N. All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. O. Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. P. Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. Q. All exhibits attached to this License are incorporated by reference as if fully set forth in this License. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: Licensor: Illinois Railway, LLC Licensee: City of Yorkville By: \s2\ By: \s1\ Name: \n2\ Name: \n1\ Title: \t2\ Title: \t1\ Date: \d2\ Date: \d1\ 006Jx00000XjfiwIAB 0 E Agreement No. 410368 410368.a Exhibit A Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a Agreement No. 410368 410368.a EXHIBIT B Agreement No. 410369 410369.a PIPE LINE CROSSING LICENSE THIS LICENSE (“License”) shall be effective on the last date of signature set forth below (the “Effective Date”), by Illinois Railway, LLC (“Licensor”) and City of Yorkville (“Licensee”). Licensor and Licensee may sometimes be referred to as a “Party” or collectively as the “Parties.” WITNESSETH: 1. TERM: This License shall take effect as of the Effective Date, and unless sooner terminated per the terms outlined in Section 9 and 10 of this License, shall remain in effect regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor returns a fully-executed copy to Licensee. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor hereby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fresh water Pipe Line, as more particularly described in Licensee’s application, marked Exhibit “A”, attached to this License and made a part of it by this reference, situated on, across, along or over Licensor’s property at or near the City of Yorkville, County of Kendall, and State of Illinois (the “Premises”). The term Pipe Line shall be deemed to mean the actual line(s) and any and all appurtenances and that portion of Licensor’s property, in so far as they relate to said Pipe Line. The location of the Pipe Line is more particularly described on the drawing marked Exhibit “B”, attached to this License and made a part of it by this reference, but generally described as follows: A 9.05" (inch) carrier inside 16" (inch) casing diameter, fresh water Pipe Line crossing Licensor’s property, located at or near Mile Post No. 49.80, as shown on Exhibit “B”. 3. LICENSE FEE: A. Licensee shall pay to Licensor as one time License Fee the sum of three thousand seven hundred dollars (USD $3,700.00), payable in advance on or prior to the Effective Date of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable, which may occur as a result of the payment of the above license or other fees payable under this License. 4. SPECIFICATIONS: A. The Pipe Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the American Railway Engineering and Maintenance of Way Association, and in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or Agreement No. 410369 410369.a created thereby (collectively, “Laws”). Provided however, that all materials and workmanship employed in the construction, installation, use, maintenance, repair and operation of the Pipe Line shall be subject to the approval of the Licensor’s Chief Engineer or authorized representative. B. An underground Pipe Line crossing under track(s) at a ninety degree (90°) angle, shall be encased in conduit for a MINIMUM of forty-eight feet (48’), twenty-four feet (24’) on either side measured from the centerline of the track(s) or the full width of Licensor’s property if less than forty-eight (48’) feet. Crossings of a degree substantially greater or less than ninety degrees (90°) shall be encased in conduit for the full width of the track structure. The top of the encasement pipe shall be a MINIMUM of five and one half (5½’) feet beneath surface of ground at all points within Licensor’s property. C. Any appurtenance to the Pipe Line shall be constructed and maintained to a MINIMUM clearance of no less than fifteen (15’) feet from the centerline of any track(s). The side clearance of fifteen (15’) feet shall be maintained for a height of twenty-seven feet (27’). All Pipe Line(s) shall be constructed, as nearly as possible to cross under any track(s) at a right angle to said track(s). D. Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Pipe Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Pipe Line, Licensee shall be required to execute Licensor’s standard Right of Entry for any maintenance or repair work on the Pipe Line that requires entry onto Licensor’s property or right-of-way. The Right of Entry Permit fee shall be waived for emergency repair and routine maintenance on the pipeline. E. Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. F. Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Pipe Line and the construction or use of the Pipe Line or other of Licensee’s facilities on Licensor’s property or the operation of any of them. G. Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee’s sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor’s property which may be affected by the relocation, installation, construction or any maintenance or repair of the Pipe Line. Licensee’s Pipe Line will not unreasonably interfere with the use of Licensor’s property, or create any undue hardship on the person or entity occupying said property. Agreement No. 410369 410369.a 6. RISK, LIABILITY, INDEMNITY: A. Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. B. a. LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE “INDEMNITEES”) AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES, ATTORNEYS’ FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. b. THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS’ COMPENSATION ACT OR FEDERAL EMPLOYERS’ LIABILITY ACT. c. LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD “LICENSOR” AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. d. AS A PRECONDITION TO LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR Agreement No. 410369 410369.a INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY LICENSEE. 7. INSURANCE: A. Licensee shall purchase and maintain insurance as specified below covering the License, all the work, services, and obligations assumed or performed hereunder, from the Effective Date until termination, unless the duration is stated to be otherwise, with insurance companies assigned a current Financial Strength Rating of at least A and Financial Size Category of X by A. M. Best Company: i. Commercial General Liability Insurance written on an occurrence basis subject to limit of $1,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander with an annual aggregate limit of no less than $2,000,000. Policy coverage is to be based on usual Insurance Services Office policy forms to include, but not be limited to: Operations and Premises Liability, Completed Operations and Products Liability, Personal Injury and Advertising Liability, and Contractual Liability Insurance. Completed Operations coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. General Liability policies procured by Licensee shall be amended to delete all railroad exclusions including exclusions for working on or within fifty feet (50’) of any railroad property, and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing (CG 24 17 endorsement or equivalent). ii. Workers’ Compensation and Employers’ Liability Insurance providing statutory workers’ compensation benefits mandated under applicable state law and Employers’ Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. If coverage is provided through a monopolistic state fund, a stop gap endorsement on either the Commercial General Liability or Workers’ Compensation Policy is required to meet the Employers’ Liability Insurance requirement. iii. Business Automobile Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury and property damage. Policy coverage shall be based on Insurance Services Office policy forms referred to as Business Automobile Policy to cover motor vehicles owned, leased, rented, hired or used on behalf of Licensee. If applicable to this License and applicable under federal law, Licensee shall provide an MCS 90 endorsement. iv. Umbrella Liability Insurance written on an occurrence basis subject to a limit of $4,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander. Policy coverage is to be at least as broad as primary coverages. Umbrella coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. Umbrella Liability shall apply to Commercial General Liability, Employers’ Liability, and Business Automobile Liability Insurances. The required limits of insurance may be satisfied by a combination of Primary and Umbrella or Excess Liability Insurance. B. All insurance required of Licensee with the exception of Workers’ Compensation and Employers’ Liability shall include Licensor and any subsidiary, owner, parent or affiliates of Licensor, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, Agreement No. 410369 410369.a shareholders, and employees (“Required Parties”) as additional insured and include wording which states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. With respect to Commercial General Liability Insurance, Required Parties shall be included as additional insured for Ongoing Operations and for Completed Operations to the extent permitted by law. C. All insurance shall provide Licensor a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. D. If Licensee cannot obtain an occurrence based policy for any required coverage, the policy may be written on a claims-made basis with a retroactive date on or before the Effective Date of this License. Licensee shall maintain such policy on a continuous basis. If there is a change in insurance companies or the policy is canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. E. Licensee shall file with Licensor on or before the Effective Date of this License a valid certificate of insurance for all required insurance policies. Each certificate shall identify the Required Parties as additional insured as required and state that Licensor shall receive a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. Licensee shall supply updated certificates of insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as required by this License. F. All insurance policies required of Licensee shall include a waiver of any right of subrogation written in favor of the Required Parties. G. Notwithstanding the foregoing, Licensee may self-insure for any of the above required insurance coverages subject to the requirements specified in this paragraph. Licensee shall provide Licensor with audited financial statements and Licensor may, at its discretion, which shall not be unreasonably withheld, deem such financial statements acceptable prior to authorizing Licensee to self-insure. Licensee shall provide a letter of self-insurance to Licensor specifically stating which lines of coverage are self-insured and the amount of self-insurance maintained. The amount of any excess insurance that attaches to self-insurance below the required limits of insurance shall be identified in the letter and evidenced on a certificate of insurance. This letter of self-insurance shall be signed by Licensee’s Risk Manager or another designated authorized signatory. With respect to Workers’ Compensation, Licensee shall also provide state-issued self-insured authorization documents to Licensor, where applicable by state law. H. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent or broker who have been instructed by Licensee to procure the insurance coverage required by this License. Upon signature of this License and renewal of insurance, if Licensee fails to maintain or provide evidence to Licensor of any insurance coverage required under this License, Licensor may terminate this License effective immediately. I. Licensee’s compliance with obtaining the required insurance coverage shall in no way limit the indemnification rights and obligations specified in this License. 8. WAIVER: Agreement No. 410369 410369.a Licensee waives the right to question the validity of this License or any of the terms and provisions of it, or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Pipe Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause whatsoever. Licensee further agrees to indemnify and save harmless Licensor and to assume all risk, responsibility and liability (including any expenses, attorneys’ fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor’s title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: A. Licensee will at all times maintain the Pipe Line in a safe and secure manner and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Pipe Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor’s railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Pipe Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Pipe Line as required or remove the Pipe Line, or as much of the Pipe Line as is located upon the portion of the property as required by Licensor. B. If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Pipe Line or to make any necessary repairs, or to relocate the Pipe Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Pipe Line to be removed from Licensor’s property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen percent (15%) of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10) days advance written notice of its intention to do so. C. In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Pipe Line, this License shall continue in force and be applicable to the portion or portions of the Pipe Line remaining from time to time until the entire Pipe Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATON: If Licensee fails to keep or perform any of Licensee’s covenants contained in this License, upon ninety (90) days written notice to Licensee and an opportunity to cure with such cure being completed within such ninety (90) day period or if such cure cannot be completed within ninety (90) days, in such time as necessary so long as Licensee is diligently pursuing such cure and in no event longer than one hundred eighty (180) days, Licensor shall have the right to terminate this License. In addition to the foregoing, Licensor shall have the right to terminate this License and the rights granted hereunder, after delivering to Licensee written notice of such termination no less than ninety (90) days prior to each anniversary of the effective date thereof, upon the occurrence of any of the following events: Agreement No. 410369 410369.a a. If Licensee shall permanently discontinue the use of operations of the Pipe Line; or b. If Licensor shall be required by any change in applicable Federal law after the Effective Date to remove, relocate, reconstruct, or discontinue operation of Licensor’s railroad and any such removal, relocation, reconstruction, or discontinuance of operation of Licensor’s railroad cannot be accomplished without removal of the Pipeline; or c. If Licensor determines and substantiates to Licensee that the Pipe Line endangers or threatens Licensor’s employees or the safe operation or maintenance of the railroad. 11. RESTORATION: Upon termination of this License, in accordance with the provisions of Section 10 of this License, Licensee shall promptly remove the Pipe Line from Licensor’s property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Pipe Line within ninety days (90) after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.B of this License. 12. MISCELLANEOUS: A. This License is executed by all Parties under current interpretation of any and all applicable Laws. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. B. In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. C. Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: If to Licensor: If to Licensee: ATTN: Real Estate 252 Clayton Street, 4th Floor Denver, Colorado 80206 ATTN: City of Yorkville 651 Prairie Pointe Dr. Yorkville, IL 60560 WITH A COPY TO: Phone: (630) 770-9915 ATTN: General Counsel 252 Clayton Street, 4th Floor Denver, Colorado 80206 Agreement No. 410369 410369.a D. No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. E. This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Pipe Line by Licensee. F. This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee’s successor in interest to this License. G. Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee’s facilities. H. Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. I. The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. J. Licensee further indemnifies Licensor against any and all liens that may be placed against Licensor’s property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. K. In the event that Licensor shall incur any costs or expenses, including attorneys’ fees and costs, in enforcing Licensee’s covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. L. This License shall be governed under the laws of the State of Illinois, and venue shall be proper in the federal or state courts of the State of Illinois for any action arising under the terms of this License or Agreement No. 410369 410369.a performance of it. The section headings of this License have been inserted for convenience of reference only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. M. Licensor’s remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. N. All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. O. Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. P. Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. Q. All exhibits attached to this License are incorporated by reference as if fully set forth in this License. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: Licensor: Illinois Railway, LLC Licensee: City of Yorkville By: \s2\ By: \s1\ Name: \n2\ Name: \n1\ Title: \t2\ Title: \t1\ Date: \d2\ Date: \d1\ 006Jx00000XjfiwIAB 0 E Agreement No. 410369 410369.a Exhibit A Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a Agreement No. 410369 410369.a EXHIBIT B Agreement No. 410370 410370 PIPE LINE CROSSING LICENSE THIS LICENSE (“License”) shall be effective on the last date of signature set forth below (the “Effective Date”), by Illinois Railway, LLC (“Licensor”) and City of Yorkville (“Licensee”). Licensor and Licensee may sometimes be referred to as a “Party” or collectively as the “Parties.” WITNESSETH: 1. TERM: This License shall take effect as of the Effective Date, and unless sooner terminated per the terms outlined in Section 9 and 10 of this License, shall remain in effect regardless of performance or non-performance of any of the covenants and agreements contained in this License and regardless of any fee having been paid in advance for any period without regard to any loss or damage incurred by either Party as a result of such termination or cancellation. Licensor will not execute this License until it receives a signed original from Licensee, and in no event is entry under this License permitted until Licensor returns a fully-executed copy to Licensee. 2. LOCATION: In consideration of the license fee or other sums of money Licensee agrees to pay to Licensor, and of the covenants and agreements of Licensee as set forth in this License, Licensor hereby grants a license and permission to Licensee to construct, install, use, maintain, repair, relocate, operate and replace a fresh water Pipe Line, as more particularly described in Licensee’s application, marked Exhibit “A”, attached to this License and made a part of it by this reference, situated on, across, along or over Licensor’s property at or near the City of Yorkville, County of Kendall, and State of Illinois (the “Premises”). The term Pipe Line shall be deemed to mean the actual line(s) and any and all appurtenances and that portion of Licensor’s property, in so far as they relate to said Pipe Line. The location of the Pipe Line is more particularly described on the drawing marked Exhibit “B”, attached to this License and made a part of it by this reference, but generally described as follows: A 9.05" (inch) carrier inside 16" (inch) casing diameter, fresh water Pipe Line crossing Licensor’s property, located at or near Mile Post No. 49.76, as shown on Exhibit “B”. 3. LICENSE FEE: A. Licensee shall pay to Licensor as one time License Fee the sum of three thousand seven hundred dollars (USD $3,700.00), payable in advance on or prior to the Effective Date of this License. Licensee shall pay to Licensor any and all sales tax, if any and if applicable, which may occur as a result of the payment of the above license or other fees payable under this License. 4. SPECIFICATIONS: A. The Pipe Line shall be constructed, installed, used, maintained, repaired and operated in strict accordance with any and all current requirements and specifications adopted by the American Railway Engineering and Maintenance of Way Association, and in compliance with any and all law, statute, regulation or order of any federal, state or municipal governmental body or any agency thereof or Agreement No. 410370 410370 created thereby (collectively, “Laws”). Provided however, that all materials and workmanship employed in the construction, installation, use, maintenance, repair and operation of the Pipe Line shall be subject to the approval of the Licensor’s Chief Engineer or authorized representative. B. An underground Pipe Line crossing under track(s) at a ninety degree (90°) angle, shall be encased in conduit for a MINIMUM of forty-eight feet (48’), twenty-four feet (24’) on either side measured from the centerline of the track(s) or the full width of Licensor’s property if less than forty-eight (48’) feet. Crossings of a degree substantially greater or less than ninety degrees (90°) shall be encased in conduit for the full width of the track structure. The top of the encasement pipe shall be a MINIMUM of five and one half (5½’) feet beneath surface of ground at all points within Licensor’s property. C. Any appurtenance to the Pipe Line shall be constructed and maintained to a MINIMUM clearance of no less than fifteen (15’) feet from the centerline of any track(s). The side clearance of fifteen (15’) feet shall be maintained for a height of twenty-seven feet (27’). All Pipe Line(s) shall be constructed, as nearly as possible to cross under any track(s) at a right angle to said track(s). D. Licensee shall, except in emergencies, give not less than seventy-two (72) hours prior written notice to Licensor of the day, hour and location that it proposes to undertake any construction, installation, repair, relocation, replacement or maintenance work to the Pipe Line or otherwise on the Premises and in the event of an emergency shall notify Licensor as soon as possible. After completion of construction, relocation, installation or replacement of the Pipe Line, Licensee shall be required to execute Licensor’s standard Right of Entry for any maintenance or repair work on the Pipe Line that requires entry onto Licensor’s property or right-of-way. The Right of Entry Permit fee shall be waived for emergency repair and routine maintenance on the pipeline. E. Licensee shall require each of its contractors and subcontractors to observe and conform to the conditions and requirements specified in this License; and for the purposes of the safety, protective and indemnification provisions of this License, such contractors and subcontractors, their agents, servants and employees, and other persons on the Licensor property at the invitation of the Licensee, its contractors or subcontractors, shall be deemed the agents or employees of the Licensee. F. Licensee shall, at no expense to Licensor, obtain all permits and approvals required to exercise its rights provided for pursuant to this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of such permits, approvals, the Law and any lawful public authority. Licensee shall be responsible for any taxes, assessments and charges made against the Pipe Line and the construction or use of the Pipe Line or other of Licensee’s facilities on Licensor’s property or the operation of any of them. G. Licensor shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee’s sole risk and expense. 5. PRESENT OCCUPATIONS: Licensee shall make appropriate arrangements with any person or entity occupying Licensor’s property which may be affected by the relocation, installation, construction or any maintenance or repair of the Pipe Line. Licensee’s Pipe Line will not unreasonably interfere with the use of Licensor’s property, or create any undue hardship on the person or entity occupying said property. Agreement No. 410370 410370 6. RISK, LIABILITY, INDEMNITY: A. Licensee acknowledges that persons and property on or near the Premises are in constant danger of injury, death or destruction, incident to the operation of the railroad tracks, whether by Licensor or others; and Licensee accepts this License subject to such dangers. B. a. LICENSEE, AS FURTHER CONSIDERATION AND AS A CONDITION WITHOUT WHICH THIS LICENSE WOULD NOT HAVE BEEN GRANTED, AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS LICENSOR, ITS PARENTS, OWNERS, AND AFFILIATES, AND THEIR RESPECTIVE PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, AGENTS, SHAREHOLDERS AND EMPLOYEES (THE “INDEMNITEES”) AND TO ASSUME ALL RISK, RESPONSIBILITY AND LIABILITY FOR DEATH OF, OR INJURY TO, ANY PERSONS, INCLUDING, BUT NOT LIMITED TO, OFFICERS, EMPLOYEES, AGENTS, PATRONS, INVITEES AND LICENSEES OF THE PARTIES, AND FOR LOSS, DAMAGE OR INJURY TO ANY PROPERTY, INCLUDING BUT NOT LIMITED TO, THAT BELONGING TO THE PARTIES (TOGETHER WITH ALL LIABILITY FOR ANY EXPENSES, ATTORNEYS’ FEES AND COSTS INCURRED OR SUSTAINED BY THE INDEMNITEES, WHETHER IN DEFENSE OF ANY SUCH CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OR IN THE ENFORCEMENT OF THE INDEMNIFICATION RIGHTS CONFERRED BY THIS LICENSE) ARISING FROM, GROWING OUT OF, OR IN ANY MANNER OR DEGREE DIRECTLY OR INDIRECTLY CAUSED BY, ATTRIBUTABLE TO, OR RESULTING FROM THE GRANT OF THIS LICENSE OR THE CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, ALTERATION, CHANGE, RELOCATION, EXISTENCE, PRESENCE, USE, OPERATION, REPLACEMENT, OR REMOVAL OF ANY STRUCTURE INCIDENT TO IT, OR FROM ANY ACTIVITY CONDUCTED ON OR OCCURRENCE ORIGINATING ON THE AREA COVERED BY THE LICENSE, INCLUDING ANY TEMPORARY USAGE AREA, EXCEPT TO THE EXTENT PROXIMATELY CAUSED BY THE INTENTIONAL MISCONDUCT OR SOLE GROSS NEGLIGENCE OF THE PARTY SEEKING INDEMNIFICATION. b. THE RISKS OF INJURY TO OR DEATH OF PERSONS AND LOSS OR DAMAGE TO PROPERTY ASSUMED BY LICENSEE UNDER THIS LICENSE, SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO, CONTRACTORS, SUBCONTRACTORS, EMPLOYEES, OR INVITEES OF EITHER OF THE PARTIES, AND WHETHER OR NOT SUCH INJURY TO OR DEATH OF PERSONS SHALL ARISE UNDER ANY WORKERS’ COMPENSATION ACT OR FEDERAL EMPLOYERS’ LIABILITY ACT. c. LICENSEE SHALL, AT ITS SOLE COST AND EXPENSE, JOIN IN OR ASSUME, AT THE ELECTION AND DEMAND OF LICENSOR, THE DEFENSE OF ANY CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION ARISING UNDER THIS LICENSE. THE WORD “LICENSOR” AS USED IN THIS INDEMNITY SECTION SHALL INCLUDE THE ASSIGNS OF LICENSOR AND ANY OTHER RAILROAD COMPANY THAT MAY BE OPERATING UPON AND OVER THE TRACKS IN THE VICINITY OF THE PREMISES. d. AS A PRECONDITION TO LICENSEE’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION, THE INDEMNITEES WILL (i) FULLY COOPERATE WITH LICENSEE IN ANY INVESTIGATION AND PROVIDE LICENSEE WITH ALL INFORMATION IN THE POSSESSION OR CONTROL OF THE INDEMNITEES RELATING TO ANY MATTER FOR WHICH THE INDEMNITEES SEEK INDEMNIFICATION, AND (ii) PROVIDE LICENSEE WITH TIMELY NOTICE OF ANY MATTER OR Agreement No. 410370 410370 INCIDENT FOR WHICH THE INDEMNITEES MAY MAKE A CLAIM FOR INDEMNIFICATION BY LICENSEE. 7. INSURANCE: A. Licensee shall purchase and maintain insurance as specified below covering the License, all the work, services, and obligations assumed or performed hereunder, from the Effective Date until termination, unless the duration is stated to be otherwise, with insurance companies assigned a current Financial Strength Rating of at least A and Financial Size Category of X by A. M. Best Company: i. Commercial General Liability Insurance written on an occurrence basis subject to limit of $1,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander with an annual aggregate limit of no less than $2,000,000. Policy coverage is to be based on usual Insurance Services Office policy forms to include, but not be limited to: Operations and Premises Liability, Completed Operations and Products Liability, Personal Injury and Advertising Liability, and Contractual Liability Insurance. Completed Operations coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. General Liability policies procured by Licensee shall be amended to delete all railroad exclusions including exclusions for working on or within fifty feet (50’) of any railroad property, and affecting any railroad bridge or trestle, tracks, road-beds, tunnel, underpass or crossing (CG 24 17 endorsement or equivalent). ii. Workers’ Compensation and Employers’ Liability Insurance providing statutory workers’ compensation benefits mandated under applicable state law and Employers’ Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury by accident, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. If coverage is provided through a monopolistic state fund, a stop gap endorsement on either the Commercial General Liability or Workers’ Compensation Policy is required to meet the Employers’ Liability Insurance requirement. iii. Business Automobile Liability Insurance subject to a minimum limit of $1,000,000 each accident for bodily injury and property damage. Policy coverage shall be based on Insurance Services Office policy forms referred to as Business Automobile Policy to cover motor vehicles owned, leased, rented, hired or used on behalf of Licensee. If applicable to this License and applicable under federal law, Licensee shall provide an MCS 90 endorsement. iv. Umbrella Liability Insurance written on an occurrence basis subject to a limit of $4,000,000 each occurrence for bodily injury, property damage, personal injury, libel and/or slander. Policy coverage is to be at least as broad as primary coverages. Umbrella coverage is to be maintained for a period of not less than three (3) years after the termination or cancellation of this License. Umbrella Liability shall apply to Commercial General Liability, Employers’ Liability, and Business Automobile Liability Insurances. The required limits of insurance may be satisfied by a combination of Primary and Umbrella or Excess Liability Insurance. B. All insurance required of Licensee with the exception of Workers’ Compensation and Employers’ Liability shall include Licensor and any subsidiary, owner, parent or affiliates of Licensor, and their respective partners, successors, assigns, legal representatives, officers, directors, members, managers, agents, Agreement No. 410370 410370 shareholders, and employees (“Required Parties”) as additional insured and include wording which states that the insurance shall be primary and not excess over or contributory with any insurance carried by Licensor and its affiliates. With respect to Commercial General Liability Insurance, Required Parties shall be included as additional insured for Ongoing Operations and for Completed Operations to the extent permitted by law. C. All insurance shall provide Licensor a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. D. If Licensee cannot obtain an occurrence based policy for any required coverage, the policy may be written on a claims-made basis with a retroactive date on or before the Effective Date of this License. Licensee shall maintain such policy on a continuous basis. If there is a change in insurance companies or the policy is canceled or not renewed, Licensee shall purchase an extended reporting period of not less than three (3) years after the License termination date. E. Licensee shall file with Licensor on or before the Effective Date of this License a valid certificate of insurance for all required insurance policies. Each certificate shall identify the Required Parties as additional insured as required and state that Licensor shall receive a minimum of thirty (30) days’ advance written notice of insurer’s intent to cancel or otherwise terminate policy coverage. Licensee shall supply updated certificates of insurance that clearly evidence the continuation of all coverage in the same manner, limits of protection, and scope of coverage as required by this License. F. All insurance policies required of Licensee shall include a waiver of any right of subrogation written in favor of the Required Parties. G. Notwithstanding the foregoing, Licensee may self-insure for any of the above required insurance coverages subject to the requirements specified in this paragraph. Licensee shall provide Licensor with audited financial statements and Licensor may, at its discretion, which shall not be unreasonably withheld, deem such financial statements acceptable prior to authorizing Licensee to self-insure. Licensee shall provide a letter of self-insurance to Licensor specifically stating which lines of coverage are self-insured and the amount of self-insurance maintained. The amount of any excess insurance that attaches to self-insurance below the required limits of insurance shall be identified in the letter and evidenced on a certificate of insurance. This letter of self-insurance shall be signed by Licensee’s Risk Manager or another designated authorized signatory. With respect to Workers’ Compensation, Licensee shall also provide state-issued self-insured authorization documents to Licensor, where applicable by state law. H. Licensee represents that this License has been thoroughly reviewed by Licensee’s insurance agent or broker who have been instructed by Licensee to procure the insurance coverage required by this License. Upon signature of this License and renewal of insurance, if Licensee fails to maintain or provide evidence to Licensor of any insurance coverage required under this License, Licensor may terminate this License effective immediately. I. Licensee’s compliance with obtaining the required insurance coverage shall in no way limit the indemnification rights and obligations specified in this License. 8. WAIVER: Agreement No. 410370 410370 Licensee waives the right to question the validity of this License or any of the terms and provisions of it, or the right or power of Licensor to execute and enforce this License. This License is made without covenant on the part of Licensor to warrant its title to the property involved with the Pipe Line, or to give or to defend Licensee in the peaceful possession of the property and Licensee shall waive all right to claim damages in the event Licensee shall be evicted, ejected or required to surrender possession of the property by anyone owning or claiming title to or any interest in the property, or by reason of failure of title of Licensor, or for any other cause whatsoever. Licensee further agrees to indemnify and save harmless Licensor and to assume all risk, responsibility and liability (including any expenses, attorneys’ fees and costs incurred or sustained by Licensor) arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of Licensor’s title affecting the right of Licensor to make this grant. 9. REPAIRS AND RELOCATION: A. Licensee will at all times maintain the Pipe Line in a safe and secure manner and in a condition satisfactory to Licensor. Licensor may request Licensee to change the location of the Pipe Line, or any part of it, or to make reasonable repairs or changes as the judgment of Licensor deems necessary in order to avoid interference with or danger in the use or operation of Licensor’s railroad, or any of its present or future appurtenances. In the event it is desired by Licensor to use its property or any portion of it, occupied or impacted by the Pipe Line, then Licensee shall, at its sole expense, and within thirty (30) days after notice from Licensor to do so, (or on shorter notice in case of an emergency), make changes to the Pipe Line as required or remove the Pipe Line, or as much of the Pipe Line as is located upon the portion of the property as required by Licensor. B. If Licensee shall fail to perform any of its obligations contained in this License as to the maintenance of safe conditions in and about the Pipe Line or to make any necessary repairs, or to relocate the Pipe Line, then Licensor may cause such condition to be made safe, or change of location to be made, or repairs to be made, or Pipe Line to be removed from Licensor’s property. Licensor acting as the agent of Licensee, may perform such work as is necessary in the judgment of Licensor, and Licensee shall, on demand, promptly reimburse Licensor the cost of the work, plus fifteen percent (15%) of the cost as a charge for the supervision, accounting, and use of tools; or Licensor may terminate this License by giving Licensee not less than ten (10) days advance written notice of its intention to do so. C. In case Licensor shall at any time, or from time to time, require the removal of only a portion of the Pipe Line, this License shall continue in force and be applicable to the portion or portions of the Pipe Line remaining from time to time until the entire Pipe Line has been removed and the License Fees or other fees payable under this License shall be adjusted accordingly. 10. TERMINATON: If Licensee fails to keep or perform any of Licensee’s covenants contained in this License, upon ninety (90) days written notice to Licensee and an opportunity to cure with such cure being completed within such ninety (90) day period or if such cure cannot be completed within ninety (90) days, in such time as necessary so long as Licensee is diligently pursuing such cure and in no event longer than one hundred eighty (180) days, Licensor shall have the right to terminate this License. In addition to the foregoing, Licensor shall have the right to terminate this License and the rights granted hereunder, after delivering to Licensee written notice of such termination no less than ninety (90) days prior to each anniversary of the effective date thereof, upon the occurrence of any of the following events: Agreement No. 410370 410370 a. If Licensee shall permanently discontinue the use of operations of the Pipe Line; or b. If Licensor shall be required by any change in applicable Federal law after the Effective Date to remove, relocate, reconstruct, or discontinue operation of Licensor’s railroad and any such removal, relocation, reconstruction, or discontinuance of operation of Licensor’s railroad cannot be accomplished without removal of the Pipeline; or c. If Licensor determines and substantiates to Licensee that the Pipe Line endangers or threatens Licensor’s employees or the safe operation or maintenance of the railroad. 11. RESTORATION: Upon termination of this License, in accordance with the provisions of Section 10 of this License, Licensee shall promptly remove the Pipe Line from Licensor’s property, and restore the property to its prior condition, or a condition satisfactory to Licensor. If Licensee fails to remove the Pipe Line within ninety days (90) after termination of this License, Licensor may remove same, and charge the expense of such removal to the Licensee on the basis provided in Section 9.B of this License. 12. MISCELLANEOUS: A. This License is executed by all Parties under current interpretation of any and all applicable Laws. Further, each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) contained in this License shall have independent and severable status from each other separate division, or combination of them, for the determination of legality, so that if any separate division is determined to be unconstitutional, illegal, violative of trade or commerce, in contravention of public policy, void, voidable, invalid or unenforceable for any reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division or any other combination of them. B. In the event this License is part of a package of agreements for Licensee, this License and all other such documents shall be read as compatible parts of the package and not in contradiction to each other, such that in the event of apparent conflict in any duties under this License or the package of agreements, Licensor shall designate which clause(s) shall survive or control any others. C. Except as otherwise specified in this License, any notice or other communication required or permitted by this License shall be in writing and (i) delivered by first class mail, postage prepaid, or (ii) deposited into the custody of a nationally recognized overnight delivery service, as follows: If to Licensor: If to Licensee: ATTN: Real Estate 252 Clayton Street, 4th Floor Denver, Colorado 80206 ATTN: City of Yorkville 651 Prairie Pointe Dr. Yorkville, IL 60560 WITH A COPY TO: Phone: (630) 770-9915 ATTN: General Counsel 252 Clayton Street, 4th Floor Denver, Colorado 80206 Agreement No. 410370 410370 D. No oral promises, oral agreements, or oral warranties shall be deemed a part of this License, nor shall any alteration, amendment, supplement or waiver of any of the provisions of this License be binding upon either Party, unless same be supplemented, altered, changed or amended by an instrument in writing, signed by Licensor and Licensee. E. This License is made subject to the rights previously or simultaneously granted by or through Licensor for any surface, sub-surface or aerial uses antedating this License, including but not limited to, the construction, maintenance, operation, renewal and/or relocation of fences, pipelines, communication lines, power lines, railroad tracks and signals, and any and all appurtenances applicable to them. Licensor excepts and reserves the right to grant additional uses of the same or similar nature subsequent to the execution of this License, without payment of any sum for damages, so long as such use does not unreasonably interfere with the use of Pipe Line by Licensee. F. This License and all of the provisions contained in it shall be binding upon the Parties, their heirs, executors, administrators, successors and assigns, and Licensee agrees to supply notice in writing to Licensor of any name changes. Notwithstanding the forgoing, Licensee agrees not to assign this License or any rights or privileges granted under it, without the prior written consent of Licensor, which it may give at its sole discretion, and any and every attempted assignment without prior written consent shall be void and of no effect. This covenant shall also apply whether any of the foregoing is made voluntarily by Licensee or involuntarily in any proceeding at law or in equity to which Licensee may be a party, whereby any of the rights, duties and obligations of License may be sold, transferred, conveyed, encumbered, abrogated or in any manner altered without the prior notice to and consent of Licensor. Notwithstanding the foregoing, Licensee shall remain liable to Licensor as a guarantor of Licensee’s successor in interest to this License. G. Nothing in this License shall be construed to place any responsibility on Licensor for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any Licensee’s facilities. H. Any approval given or supervision exercised by Licensor under this License, or failure of Licensor to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its obligations under this License. I. The failure of the Licensor to seek redress for any violation of or to insist upon the strict performance of any of the terms, covenants or conditions of this License or any of the rules and regulations from time to time issued by the Licensor, shall not prevent a subsequent act, which would have originally constituted a violation, from having all of the force and effect of an original violation. J. Licensee further indemnifies Licensor against any and all liens that may be placed against Licensor’s property in the course of construction of this crossing, and agrees to immediately satisfy any liens so placed. K. In the event that Licensor shall incur any costs or expenses, including attorneys’ fees and costs, in enforcing Licensee’s covenants and agreements under this License, Licensee shall reimburse Licensor for all such costs, expenses and legal fees as an additional fee under this License. L. This License shall be governed under the laws of the State of Illinois, and venue shall be proper in the federal or state courts of the State of Illinois for any action arising under the terms of this License or Agreement No. 410370 410370 performance of it. The section headings of this License have been inserted for convenience of reference only and they shall not be referred to in the interpretation of this License. This License shall be read with all changes of gender and number required by the context. Time shall be of the essence in this License and each of the provisions of it. M. Licensor’s remedies under this License shall be cumulative, and the exercise of any remedy shall not preclude the exercise of any other remedy. N. All of the obligations, representations and warranties of the Licensee accruing under this License during the existence of this License or any renewal or extension of it shall survive the termination or expiration of the Term. O. Licensor shall not be responsible for any loss, damage, delay or non-performance caused by accidents, labor difficulties, acts of God, governmental action or by any other cause which is unavoidable or beyond its reasonable control. P. Licensee agrees that it shall not register this License or any notice or reference in respect of this License against title. Q. All exhibits attached to this License are incorporated by reference as if fully set forth in this License. IN WITNESS WHEREOF, the Parties have executed this License as of the last date of execution set forth below: Licensor: Illinois Railway, LLC Licensee: City of Yorkville By: \s2\ By: \s1\ Name: \n2\ Name: \n1\ Title: \t2\ Title: \t1\ Date: \d2\ Date: \d1\ 006Jx00000XjfiwIAB 0 E Agreement No. 410370 410370 Exhibit A Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 Agreement No. 410370 410370 EXHIBIT B Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number New Business #4 Tracking Number PW 2025-68 Sewer Cleaning Truck Purchase Public Works Committee – July 15, 2025 Majority Approval Proposed trade-in of current unit and purchase of new unit. This purchase was approved in the FY26 Budget. Eric Dhuse Public Works Name Department Summary Staff if proposing the purchase of a new sewer cleaning truck. This purchase is budgeted in the approved FY26 budget in the amount of $650,000. Background The City last purchased a sewer cleaning truck in 2015. 10 years later, it is time for a replacement. The PW department utilizes this truck in the sewer, water, and street department. As the name implies, our sewer cleaning truck cleans miles of sanitary sewer each year to make sure our mains are working properly and there are no obstructions that can cause backups. This truck also cleans our lift station wet wells and manholes as well. In the street department, this truck performs the crucial operation of cleaning catch basins and inlets on our storm sewer system each spring and as needed. This is a requirement of our NPDES MS-4 permit. This permit is our general storm water permit that guides us in operating a public storm sewer system. This truck also performs hydro-excavations for light poles and around utilities when performing excavations. The water department utilizes the truck to assist with water main breaks, general excavation, and hydro-excavating valves and b-boxes when they need repair. This truck saves us time, energy, and money all while making the job safer as well. Our last truck like this even assisted with a grain bin extrication. It was used like a giant vacuum cleaner to remove grain from around an individual that had become stuck. After having this type of truck for 20 years, it has become an invaluable asset. This truck is vital to all our public works departments and one of our most useful tools. Unfortunately, these trucks come with a very large price tag. We looked at 3 different brands of trucks, with the average cost being ~$614,000. Every brand has their own technology and features, but for the most part, the trucks are a giant vacuum for cleaning debris, and a hose reel on the front that can clean 600’-1000’ of pipe at a time. After demonstrating all 3 in the field, we asked the employees that use the truck the most to give us their feedback. Memorandum To: Public Works Committee From: Eric Dhuse, Director of Public Works CC: Bart Olson, City Administrator Date: July 1, 2025 Subject: Purchase of Sewer Vac Truck The majority of the employees liked the Vactor brand truck from Standard Equipment. This truck is built right here in Illinois in LaSalle-Peru and serviced in Elmhurst. Below is a list of the top features that come standard, or that we have specified on this truck with a brief explanation of what they can do for us and why we specified them. 1. RDB (rapid deployment boom) that allows the operator to extend the suction boom out 10’ and extends the debris hose out 15’ which eliminates the need to put tube extensions on the truck. When we are performing the annual storm sewer catch basin cleaning, this will save us a lot of time and work since we won’t have to take the tubes on and off each time, we move more than a few feet. 2. H.A.L.O. (Hands-free accessory lighting option) this is a battery-operated light on a reel that drops into the manhole or wet well, to light it up while we are working in it. Most of the time, you have someone holding a spotlight and shining it in the manhole to light it up. This person is stuck doing that job and can’t really move to help with anything else. This accessory will serve as that person and allow us to perform much more efficiently. This accessory is also explosionproof and waterproof which are mandatory in this environment. This accessory is an additional $3720 3. Sludge pump offload system – this will allow us to empty the debris tank while still operating the hydro-excavator. When the crew is repairing a water main break, cleaning storm sewers, or hydro-excavating a large job, we can pump the water out to the storm sewer without stopping operations. Again, this is a tremendous time saver. The crew won’t have to break down the truck, leave the site to dump at the Tower Lane site or at YBSD, then return to the site and set up again. This accessory is an additional $17,298 This truck is a very expensive purchase and taken is very seriously. We know that this truck must work for us for 10 solid years, and maybe longer. This truck must be reliable, durable, serviceable, user friendly, and our vendor must be able to provide parts, service, and support throughout this time. We feel that the Vactor Unit and Standard Equipment can do this for us. The cost of this unit is as follows: Base Cost Model 2100i w/Western Star Chassis $634,033.67 H.A.L.O. Hands Free Accessory Lighting Option $3,720 Sludge Pump Offload System $17,298 Total Cost of Unit with Accessories $655,051.67 Trade in of 2014 Vac Con Combination Machine $95,000 Net Cost to City of Yorkville $560,061.67 In the approved budget, we have $650,000 for the cost of the unit and $125,000 for our trade in. this makes the net cost $525,000 which creates an overage of $35,061. To make up for that, staff is proposing to use the savings from the Blackberry North generator that was approved in May. We originally budgeted $153,000 for the replacement and the price came in at $74,000 leaving us a positive balance of $79,000. The difference in trade in price and the budgeted amount is due to the fact that all the vendors feel that they would have to replace the tank on the truck because it is becoming too thin and may rupture. They do not feel comfortable reselling the unit as is. The estimated cost of the replacement is about $75,000. I have attached the other vendor’s quotes along with a breakdown of each quote below. EJ Equipment Vac Con unit. This is the brand of truck we currently own and operate. We have had less than good luck with this truck, the repairs of been very frequent and expensive and the time for service has been lengthy. This truck also has a twin engine with fan setup, which seems to be the older technology, whereas the other trucks we demonstrated had single engines with hydraulic pumps. This truck did not offer rapid deployment boom either, we feel that feature is a key component for our operations. The cost of this unit is as follows: Vac Con CV312HE/1300 Combination sewer cleaner $608,761 Trade in of 2014 Vac Con Combination Machine $125,000 Net Cost to City of Yorkville $483,761 This truck is not available with the rapid deployment boom, the sludge pump system, or the HALO lighting. This is also the 2-engine unit and the brand we currently own and have not been very satisfied with the truck. This truck was also quoted with a Freightliner chassis instead of a Western Star which is approximately a $25,000 increase. Lastly, the vendor can offer more on trade in since they can replace the tank on the truck for less cost than the other vendors. The last vendor was Brown Equipment Company. They quoted us a Sewer Equipment of America unit. We had not seen this brand of truck before, even though the company has been around for a long time. This unit had some really nice features, especially with the boom. This unit was more what we are looking for, but they do not offer the rapid deployment boom. We feel this is a key feature that we will utilize to save time and improve safety. This is our second choice of truck, out of the 3 that were tested. Sewer Equipment of America Model 900 $599,000 In stock unit discount $33,000 Trade in of 2014 Vac Con Combination Machine $90,000 Net Cost to City of Yorkville $476,000 This truck does include a pump system but does not include the rapid deployment boom or the HALO lighting. This is a demo quote, so there are hours on the machine and miles on the chassis, hence the discounted price. All of the quotes were Sourcewell contracts. Recommendation Staff recommends the purchase of the Vactor 2100i from Standard Equipment with the specified accessories and a Western Star chassis in the amount of in the amount of $655,051.67 and the trade in of the 2014 Vac Con unit with a credit of $95,000, for a total cost to the city $560,061.67. Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number New Business #5 Tracking Number PW 2025-69 Cannonball Estates SSA Plan Public Works Committee – July 15, 2025 Majority Approval Please see the attached memo. Bart Olson Administration Name Department Summary Discussion of the Cannonball Estates common area maintenance, including implementation of a backup SSA and the communication strategy to residents. Background A few months ago, the City was notified by the last remaining Cannonball Estates HOA board member that the HOA board had effectively disbanded, that no dues were being collected from the subdivision residents, and that maintenance on the common areas had ceased. The board member asked the City to begin maintenance of the common areas, and indicated they would spend the remaining HOA funds on detention basin maintenance, per the City’s directions after our last basin inspection. Since then, the City has mowed the berm and tracked the cost, and has researched our ability to implement the backup HOA SSA. The City has the ability to accept maintenance of the common areas in the subdivision through the backup HOA SSA. This subdivision’s backup HOA SSA was created in a way that allows the City to simply do the maintenance, and then file an annual HOA SSA tax levy at the end of the calendar year. Accordingly, we have drafted the following proposed annual budget: Cannonball Estates Units I and II Work Item Quantity Unit Price Cost Yr. Cost 1 Mowing 4.3 AC $60 $258 $7,224 2 Edging 1 LS $7,500 $7,500 $7,500 3 Mulch 350 CUYD $75 $26,250 $26,250 4 Tree Trim 1 LS $10,000 $10,000 $10,000 5 Tree Repl. 10 EA $500 $5,000 $5,000 6 Pond Mowing 2.56 AC $60.00 $154 $4,301 7 Pond Maint. 1 LS $3,000.00 $3,000 $3,000 Yearly Cost $63,275 Mgmt. Fee 15% $9,491 Total Cost $72,766 Cost per Home (111 lots) $656 Memorandum To: City Council From: Bart Olson, City Administrator CC: Date: July 10, 2025 Subject: Cannonball Estates SSA Plan Of note on the prior budget estimate, there is a fair amount of deferred maintenance in the subdivision that should be completed according to City standards. We would expect the annual fee to drop to between $400 and $500 per home after a few years. Additionally, the management fee is a ballpark cost estimate, and reflects the City having to outsource the management of the various maintenance programs to an outside firm. The City has not contacted any management companies yet, and this cost may change. Per common understandings at time of subdivision approvals, the City does not wish to be responsible for common area maintenance of any subdivision. Accordingly, we wish to communicate with the residents a last chance notice to reform their HOA and take on the responsibility of common area maintenance (which allows them to control and plan their own dues) vs. leaving it to the City (where they will have no control over the maintenance or the dues). Thus, we have drafted a letter to every home in the subdivision (attached). We seek the City Council’s feedback on the letter and the general communication process moving forward. Recommendation Staff seeks review of the annual budget and letter to the residents. If the City Council agrees with those two items, we would seek to send the letter to residents in the next few weeks, and bring the issue back to a committee meeting later in the calendar year in advance of the tax levy contemplated for the end of the calendar year. July X, 2025 <HOA Contact Name> <Mailing Address> <City, State Zip> Dear <HOA Contact Name>, It has come to the City’s attention that the Cannonball Estates Homeowner’s Association (HOA) has ceased maintaining the common areas within your subdivision. City staff has confirmed with the Association’s representative that there are currently no plans to resume this maintenance moving forward. Cannonball Estates Subdivision is subject to a backup Special Service Area (SSA), which enables the City to perform the necessary maintenance and recover the associated costs through a tax levy applied to each subdivision residents’ property tax bills. This backup SSA and an annual SSA tax levy can be implemented by the City unilaterally. Based on our current estimates, the cost to maintain the common areas is approximately $656 per home annually. While this amount may decrease in future years, there is significant deferred maintenance that must be addressed during the initial year of the City-led maintenance. The maintenance of common areas is a subdivision specific responsibility, agreed to by the City and the property owners of your subdivision when the subdivision was approved by the City Council in 1999. This arrangement of common area maintenance responsibility by the residents of each subdivision is in place in most subdivisions in the City built in that era. The City prefers that you and your neighbors reconstitute the HOA and perform the common area maintenance, which would allow you full control of what maintenance work occurs, when it occurs, and how much it costs to complete said work. Therefore, unless the HOA notifies the City it will resume full maintenance responsibilities prior to [INSERT DATE], the City intends to proceed with enacting the SSA tax levy on [INSET DATE] and assume maintenance of the common areas. We appreciate your efforts to work cooperatively with the City of Yorkville. If you have any questions or need additional information, please contact me at 630-553-4350 or bolson@yorkville.il.us. Sincerely, Bart Olson City Administrator United City of Yorkville 651 Prairie Pointe Drive Yorkville, Illinois 60560 Telephone: 630-553-4350 www.yorkville.il.us Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Community Development Purchasing Police Public Works Parks and Recreation Agenda Item Number Old Business #1 Tracking Number PW 2025-62 2025 Stormwater Basin Inspections Engineering Agreement Public Works Committee – July 15, 2025 CC – 6/24/25 This agenda item was tabled to the 7/15/25 Public Works meeting. PW 2025-62 Majority Approval Please see the attached memo. Eric Dhuse Public Works Name Department Summary A proposed PSA from EEI to perform engineering inspections on certain stormwater basins in the city and provide an inspection report to the owner(s) of the basin. Background This has been an ongoing program in the City for many years now. Each year we rotate a quadrant of the city for investigation of basins and follow up inspections with last year’s inspections as well. The inspection entails walking the entirety of each site and identifying any areas of concern such as clogged pipes or outfalls, invasive plants such as cattails, willows, and phragmites, erosion along the shoreline, illegal outfalls, evidence of animals such as beavers and muskrats, and trash or excessive debris in the pond. In essence, we look for anything that would cause the basin to not function correctly. Depending on the basin, they may look at other factors such as overland release water ways, retaining walls, naturalized plantings, and landscaping around the basin to make sure everything is healthy and functioning as it should. These inspections are important to all residents to ensure that the stormwater basins are functioning properly and will be able to handle and process storm water properly when needed. For this PSA, EEI is proposing to inspect 24 basins and follow up on 40 basins that were inspected last year to mark the progress or lack thereof with the owners. For this service a fixed fee of $19,764 is proposed. Since this is not linked to a specific project or ongoing development, this would be funded out of the Engineering Services budget in the Administrative Services section. Recommendation Staff recommends approval of this contract. Memorandum To: Public Works Committee From: Eric Dhuse, Director of Public Works CC: Bart Olson, City Administrator Date: June 11, 2025 Subject: 2025 Stormwater Basin Inspection PSA Resolution No. 2025-____ Page 1 Resolution No. 2025-_____ RESOLUTION OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS APPROVING AN ENGINEERING AGREEMENT WITH ENGINEERING ENTERPRISES, INC. WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a non- home rule municipality duly organized and validly existing in accordance with the Constitution of the State of Illinois and the laws of this State; and WHEREAS, the City’s Public Works Department plans to conduct inspection on certain stormwater basins throughout the City (the “Project”); and WHEREAS, completion of the Project will require engineering services conducted by an outside engineering firm; and WHEREAS, Engineering Enterprises, Inc., of Sugar Grove, Illinois (“EEI”), has prepared an agreement between EEI and the City for engineering services related to the Project (the “Agreement”), said Agreement being attached hereto as Exhibit A; and WHEREAS, EEI has provided engineering services for various projects completed by the City, and the City administration has found that EEI is a qualified and experienced engineering firm; and WHEREAS, the City administration recommends approval of the Agreement. NOW, THEREFORE, BE IT RESOLVED by the Mayor and City Council (the “Corporate Authorities”) of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. The foregoing recitals are hereby incorporated in this Resolution as the findings of the Corporate Authorities. Section 2. The Mayor and City Clerk are hereby authorized to execute an Agreement for Professional Services – Engineering – 2025 Stormwater Basin Inspections, attached hereto as Resolution No. 2025-____ Page 2 Exhibit A. Section 3. This Resolution shall be in full force and effect from and after its passage and approval according to law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this ____ day of __________________, A.D. 2025. ______________________________ CITY CLERK KEN KOCH _________ DAN TRANSIER _________ ARDEN JOE PLOCHER _________ CRAIG SOLING _________ CHRIS FUNKHOUSER _________ MATT MAREK _________ RUSTY CORNEILS _________ RUSTY HYETT _________ APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois this ____ day of __________________, A.D. 2025. ______________________________ MAYOR Attest: ___________________________________ City Clerk UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 1 Agreement for Professional Services – Engineering United City of Yorkville 2025 Stormwater Basin Inspections THIS AGREEMENT, by and between the United City of Yorkville, hereinafter referred to as the "City" or “OWNER” and Engineering Enterprises, Inc. hereinafter referred to as the "Contractor" or “ENGINEER” agrees as follows: A. Services: The Engineer shall furnish the necessary personnel, materials, equipment and expertise to make the necessary investigations, analysis and calculations along with exhibits, cost estimates and narrative, to complete all necessary engineering services to the City as indicated on the included Attachment A. Engineering services shall be provided as indicated on the Scope of Services on Attachment B. The Engineer shall work with the City to develop an inspection schedule consistent with available funding. All Engineering will be in accordance with the City’s Stormwater Management Plan and NPDES MS4 Permit requirements. B. Term: Services will be provided beginning on the date of execution of this agreement and continuing, until terminated by either party upon 7 days written notice to the non-terminating party or upon completion of the Services. Upon termination the Contractor shall be compensated for all work performed for the City prior to termination. C. Compensation and maximum amounts due to Contractor: ENGINEER shall receive as compensation for all work and services to be performed herein an amount based on the Estimated Level of Effort and Associated Cost included in Attachment C. Engineering Services will be paid for monthly based on the hours worked on the project. The Estimated Hourly and Direct Costs for the Engineering Services is $19,764.00. The hourly rates for this project are shown in Attachment F. All payments will be made according to the Illinois State Prompt Payment Act and not less than once every thirty days. D. Changes in Rates of Compensation: In the event that this contract is designated in Section B hereof as an Ongoing Contract, ENGINEER, on or before February 1st of any given year, shall provide written notice of any change in the rates specified in Section C hereof (or on any attachments hereto) and said changes shall only be effective on and after May 1st of that same year. UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 2 E. Ownership of Records and Documents: Contractor agrees that all books and records and other recorded information developed specifically in connection with this agreement shall remain the property of the City. Contractor agrees to keep such information confidential and not to disclose or disseminate the information to third parties without the consent of the City. This confidentiality shall not apply to material or information, which would otherwise be subject to public disclosure through the freedom of information act or if already previously disclosed by a third party. Upon termination of this agreement, Contractor agrees to return all such materials to the City. The City agrees not to modify any original documents produced by Contractor without Contractors consent. Modifications of any signed duplicate original document not authorized by ENGINEER will be at OWNER’s sole risk and without legal liability to the ENGINEER. Use of any incomplete, unsigned document will, likewise, be at the OWNER’s sole risk and without legal liability to the ENGINEER. F. Governing Law: This contract shall be governed and construed in accordance with the laws of the State of Illinois. Venue shall be in Kendall County, Illinois. G. Independent Contractor: Contractor shall have sole control over the manner and means of providing the work and services performed under this agreement. The City’s relationship to the Contractor under this agreement shall be that of an independent contractor. Contractor will not be considered an employee to the City for any purpose. H. Certifications: Employment Status: The Contractor certifies that if any of its personnel are an employee of the State of Illinois, they have permission from their employer to perform the service. Anti-Bribery: The Contractor certifies it is not barred under 30 Illinois Compiled Statutes 500/50-5(a) - (d) from contracting as a result of a conviction for or admission of bribery or attempted bribery of an officer or employee of the State of Illinois or any other state. Loan Default: If the Contractor is an individual, the Contractor certifies that he/she is not in default for a period of six months or more in an amount of $600 or more on the repayment of any educational loan guaranteed by the Illinois State Scholarship Commission made by an Illinois institution of higher education or any other loan made from public funds for the purpose of financing higher education (5 ILCS 385/3). Felony Certification: The Contractor certifies that it is not barred pursuant to 30 Illinois Compiled Statutes 500/50-10 from conducting business with the State of Illinois or any agency as a result of being convicted of a felony. UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 3 Barred from Contracting: The Contractor certifies that it has not been barred from contracting as a result of a conviction for bid-rigging or bid rotating under 720 Illinois Compiled Statutes 5/33E or similar law of another state. Drug Free Workplace: The Contractor certifies that it is in compliance with the Drug Free Workplace Act (30 Illinois Compiled Statutes 580) as of the effective date of this contract. The Drug Free Workplace Act requires, in part, that Contractors, with 25 or more employees certify and agree to take steps to ensure a drug free workplace by informing employees of the dangers of drug abuse, of the availability of any treatment or assistance program, of prohibited activities and of sanctions that will be imposed for violations; and that individuals with contracts certify that they will not engage in the manufacture, distribution, dispensation, possession, or use of a controlled substance in the performance of the contract. Non-Discrimination, Certification, and Equal Employment Opportunity: The Contractor agrees to comply with applicable provisions of the Illinois Human Rights Act (775 Illinois Compiled Statutes 5), the U.S. Civil Rights Act, the Americans with Disabilities Act, Section 504 of the U.S. Rehabilitation Act and the rules applicable to each. The equal opportunity clause of Section 750.10 of the Illinois Department of Human Rights Rules is specifically incorporated herein. The Contractor shall comply with Executive Order 11246, entitled Equal Employment Opportunity, as amended by Executive Order 11375, and as supplemented by U.S. Department of Labor regulations (41 C.F.R. Chapter 60). The Contractor agrees to incorporate this clause into all subcontracts under this Contract. International Boycott: The Contractor certifies that neither it nor any substantially owned affiliated company is participating or shall participate in an international boycott in violation of the provisions of the U.S. Export Administration Act of 1979 or the regulations of the U.S. Department of Commerce promulgated under that Act (30 ILCS 582). Record Retention and Audits: If 30 Illinois Compiled Statutes 500/20-65 requires the Contractor (and any subcontractors) to maintain, for a period of 3 years after the later of the date of completion of this Contract or the date of final payment under the Contract, all books and records relating to the performance of the Contract and necessary to support amounts charged to the City under the Contract. The Contract and all books and records related to the Contract shall be available for review and audit by the City and the Illinois Auditor General. If this Contract is funded from contract/grant funds provided by the U.S. Government, the Contract, books, and records shall be available for review and audit by the Comptroller General of the U.S. and/or the Inspector General of the federal sponsoring agency. The Contractor agrees to cooperate fully with any audit and to provide full access to all relevant materials. United States Resident Certification: (This certification must be included in all contracts involving personal services by non-resident aliens and foreign entities in accordance with requirements imposed by the Internal Revenue Services for withholding and reporting federal income taxes.) The Contractor certifies that he/she is a: x United States Citizen ___ Resident Alien ___ Non-Resident Alien The Internal Revenue Service requires that taxes UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 4 be withheld on payments made to non resident aliens for the performance of personal services at the rate of 30%. Tax Payer Certification : Under penalties of perjury, the Contractor certifies that its Federal Tax Payer Identification Number or Social Security Number is (provided separately) and is doing business as a (check one): ___ Individual ___ Real Estate Agent ___ Sole Proprietorship ___ Government Entity ___ Partnership ___ Tax Exempt Organization (IRC 501(a) only) x Corporation ___ Not for Profit Corporation ___ Trust or Estate ___ Medical and Health Care Services Provider Corp. I. Indemnification: Contractor shall indemnify and hold harmless the City and City’s agents, servants, and employees against all loss, damage, and expense which it may sustain or for which it will become liable on account of injury to or death of persons, or on account of damage to or destruction of property resulting from the performance of work under this agreement by Contractor or its Subcontractors, or due to or arising in any manner from the wrongful act or negligence of Contractor or its Subcontractors of any employee of any of them. In the event that the either party shall bring any suit, cause of action or counterclaim against the other party, the non-prevailing party shall pay to the prevailing party the cost and expenses incurred to answer and/or defend such action, including reasonable attorney fees and court costs. In no event shall the either party indemnify any other party for the consequences of that party’s negligence, including failure to follow the ENGINEER’s recommendations. J. Insurance: The ENGINEER agrees that it has either attached a copy of all required insurance certificates or that said insurance is not required due to the nature and extent of the types of services rendered hereunder. (Not applicable as having been previously supplied). K. Additional Terms or Modification: The terms of this agreement shall be further modified as provided on the attached Exhibits. Except for those terms included on the Exhibits, no additional terms are included as a part of this agreement. All prior understandings and agreements between the parties are merged into this agreement, and this agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. In the event that any provisions of this agreement shall be held to be invalid or unenforceable, the remaining provisions shall be valid and binding on the parties. The list of Attachments are as follows: The list of Attachments are as follows: Attachment A: Standard Terms and Conditions Attachment B: Scope of Services Attachment C: Estimated Level of Effort and Associated Cost Attachment D: 2025 Standard Schedule of Charges UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 5 L. Notices: All notices required to be given under the terms of this agreement shall be given mail, addressed to the parties as follows: For the City: For the Contractor: City Administrator and City Clerk Engineering Enterprises, Inc. United City of Yorkville 52 Wheeler Road 651 Prairie Pointe Drive Sugar Grove Illinois 60554 Yorkville, IL 60560 Either of the parties may designate in writing from time to time substitute addresses or persons in connection with required notices. Agreed to this ___day of _________, 2025. United City of Yorkville Engineering Enterprises, Inc.: _________________________________ ________________________________ John Purcell Brad Sanderson, P.E. Mayor Chief Operating Officer / President _________________________________ ________________________________ Jori Behland Angela R. Smith City Clerk Director of Marketing and Business Development ENGINEERING ENTERPRISES, INC. JANUARY 2025 PAGE 1 STANDARD TERMS AND CONDITIONS Agreement: These Standard Terms and Conditions, together with the Professional Services Agreement, constitute the entire integrated agreement between the OWNER and Engineering Enterprises, Inc. (EEI) (hereinafter “Agreement”), and take precedence over any other provisions between the Parties. These terms may be amended, but only if both parties consent in writing. However, to the extent that the Scope of Work differs from the Standard Terms and Conditions, the Scope of Work document controls. Standard of Care: In providing services under this Agreement, the ENGINEER will endeavor to perform in a matter consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under same circumstances in the same locality. ENGINEER makes no other warranties, express or implied, written or oral under this Agreement or otherwise, in connection with ENGINEER’S service. Construction Engineering and Inspection: The ENGINEER shall not supervise, direct, control, or have authority over any contractor work, nor have authority over or be responsible for the means, methods, techniques sequences, or procedures of construction selected or used by any contractor, or the safety precautions and programs incident thereto, for security or safety of the site, nor for any failure of a contractor to comply with laws and regulations applicable to such contractor’s furnishing and performing of its work. The ENGINEER neither guarantees the performance of any contractor nor assumes responsibility for contractor’s failure to furnish and perform the work in accordance with the contract documents. The ENGINEER is not responsible for the acts or omissions of any contractor, subcontractor, or supplies, or any of their agents or employees or any other person at the site or otherwise furnishing or performing any work. Shop drawing and submittal review by the ENGINEER shall apply to only the items in the submissions and only for the purpose of assessing if upon installation or incorporation in the project work they are generally consistent with the construction documents.  OWNER agrees that the contractor is solely responsible for the submissions and for compliance with the construction documents.  OWNER further agrees that the ENGINEER’S review and action in relation to these submissions shall not constitute the provision of means, methods, techniques, sequencing or procedures of construction or extend or safety programs or precautions.  The ENGINEER’S consideration of a component does not constitute acceptance of the assembled items. The ENGINEER’S site observation during construction shall be at the times agreed upon in the Project Scope.  Through standard, reasonable means the ENGINEER will become generally familiar with observable completed work.  If the ENGINEER observes completed work that is inconsistent with the construction documents, that information shall be communicated to the contractor and OWNER for them to address. Opinion of Probable Construction Costs: ENGINEER’S opinion of probable construction costs represents ENGINEER’S best and reasonable judgment as a professional engineer. OWNER acknowledges that ENGINEER has no control over construction costs of contractor’s methods of determining pricing, or over competitive bidding by contractors, or of market conditions or changes thereto. ENGINEER cannot and does not guarantee that proposals, bids or actual construction costs will not vary from ENGINEER’S opinion of probable construction costs. Copies of Documents & Electronic Compatibility: Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. When transferring documents in electronic media format, ENGINEER makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of the project. Changed Conditions: If, during the term of this Agreement, circumstances or conditions that were not originally contemplated by or known to the ENGINEER are revealed, to the extent that they affect the scope of services, compensation, schedule, allocation of risks, or other material terms of this Agreement, the ENGINEER may call for renegotiation of appropriate portions of this Agreement. The ENGINEER shall notify the OWNER of the changed conditions necessitating renegotiation, and the ENGINEER and the OWNER shall promptly and in good faith enter into renegotiation of this Agreement to address the changed conditions. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement, in accordance with the termination provision hereof. Hazardous Conditions: OWNER represents to ENGINEER that to the best of its knowledge no Hazardous Conditions (environmental or otherwise) exist on the project site. If a Hazardous Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental officials. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Condition. In the event ENGINEER or any other party encounters a Hazardous Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Condition; and (ii) warrants that the project site is in full compliance with applicable Laws and Regulations. ENGINEER agrees to cooperate with the OWNER, as necessary, to remediate a Hazardous Condition, but same may result in additional costs to the OWNER. ENGINEERING ENTERPRISES, INC. JANUARY 2025 PAGE 2 Consequential Damages: Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither the OWNER nor the ENGINEER, their respective officers, directors, partners, employees, contractors, or subcontractors shall be liable to the other or shall make any claim for any incidental, indirect, or consequential damages arising out of or connected in any way to the Project or to this Agreement. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation, or any other consequential damages that either party may have incurred from any cause of action including negligence, strict liability, breach of contract, and breach of strict or implied warranty. Both the OWNER and the ENGINEER shall require similar waivers of consequential damages protecting all the entities or persons named herein in all contracts and subcontracts with others involved in this project. Termination: This Agreement may be terminated for convenience, without cause, upon fourteen (14) days written notice of either party. In the event of termination, the ENGINEER shall prepare a final invoice and be due compensation as set forth in the Professional Services Agreement for all costs incurred through the date of termination. Either party may terminate this Agreement for cause upon giving the other party not less than seven (7) calendar days’ written notice for the following reasons: (a) Substantial failure by the other party to comply with or perform in accordance with the terms of the Agreement and through no fault of the terminating party; (b) Assignment of the Agreement or transfer of the project without the prior written consent of the other party; (c) Suspension of the project or the ENGINEER’S services by the OWNER for a period of greater than ninety (90) calendar days, consecutive or in the aggregate. (d) Material changes in the conditions under which this Agreement was entered into, the scope of services or the nature of the project, and the failure of the parties to reach agreement on the compensation and schedule adjustments necessitated by such changes. Payment of Invoices: Invoices are due and payable within 30 days of receipt unless otherwise agreed to in writing. Third Party Beneficiaries: Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the OWNER or the ENGINEER. The ENGINEER’S services under this Agreement are being performed solely and exclusively for the OWNER’S benefit, and no other party or entity shall have any claim against the ENGINEER because of this Agreement or the performance or nonperformance of services hereunder. The OWNER and ENGINEER agree to require a similar provision in all contracts with contractors, subcontractors, vendors and other entities involved in this Project to carry out the intent of this provision. Force Majeure: Each Party shall be excused from the performance of its obligations under this Agreement to the extent that such performance is prevented by force majeure (defined below) and the nonperforming party promptly provides notice of such prevention to the other party. Such excuse shall be continued so long as the condition constituting force majeure continues. The party affected by such force majeure also shall notify the other party of the anticipated duration of such force majeure, any actions being taken to avoid or minimize its effect after such occurrence, and shall take reasonable efforts to remove the condition constituting such force majeure. For purposes of this Agreement, “force majeure” shall include conditions beyond the control of the parties, including an act of God, acts of terrorism, voluntary or involuntary compliance with any regulation, law or order of any government, war, acts of war (whether war be declared or not), labor strike or lock-out, civil commotion, epidemic, failure or default of public utilities or common carriers, destruction of production facilities or materials by fire, earthquake, storm or like catastrophe. The payment of invoices due and owing hereunder shall in no event be delayed by the payer because of a force majeure affecting the payer. Additional Terms or Modification: All prior understandings and agreements between the parties are merged into this Agreement, and this Agreement may not be modified orally or in any manner other than by an Agreement in writing signed by both parties. In the event that any provisions of this Agreement shall be held to be invalid or unenforceable, the remaining provisions shall be valid and binding on the parties. Assignment: Neither party to this Agreement shall transfer or assign any rights or duties under or interest in this Agreement without the prior written consent of the other party. Subcontracting normally contemplated by the ENGINEER shall not be considered an assignment for purposes of this Agreement. Waiver: A party’s waiver of, or the failure or delay in enforcing any provision of this Agreement shall not constitute a waiver of the provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. Attorney’s Fees: In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party shall be entitled to recover from the other all costs and expenses including without limitation the reasonable fees of its attorneys in such action or proceeding, including costs of appeal, if any, in such amount as the Court may adjudge reasonable. Fiduciary Duty: Nothing in this Agreement is intended to create, nor shall it be construed to create, a fiduciary duty owed to either party to the other party. EEI makes no warranty, express or implied, as to its professional services rendered. Headings: The headings used in this Agreement are inserted only as a matter of convenience only, and in no way define, limit, enlarge, modify, explain or define the text thereof nor affect the construction or interpretation of this Agreement. UNITED CITY OF YORKVILLE 2025 STORMWATER BASIN INSPECTIONS PAGE 1 Agreement for Professional Services - Engineering United City of Yorkville 2025 Stormwater Basin Inspections Attachment B – Scope of Services The United City of Yorkville requests inspection services for their Stormwater Basin Inspection Program required by the City’s Stormwater Management Plan under the City’s NPDES MS4 permit with IEPA. The 2025 Inspections are in the Southwest Quadrant of the City. The following list of work items establishes the scope of engineering services for this project: ENGINEERING SERVICES: 2.1 Project Management and Administration • Management of Personnel and the Engineering Contract • Inspection and Compliance Tracking • Coordination with the City 2.2 2025 Basin Inspections (SW Quadrant – 24 Sites) • On-Site Field Inspection • Inspection Report Preparation 2.3 2024 Basin Inspection Follow Up (40 Sites) • On-Site Field Inspections • Correspondence/Update Report 2.4 Property Owner Coordination • Respond to Questions • Field Meetings as Requested EXCLUSIONS The above scope of services does not include the following: • Preparation of Maintenance Plans • Wetland Services • Construction Services • Land Surveying Services The above scope summarizes the work items that will be completed for this contract. Additional work items, including additional meetings beyond the meetings defined in the above scope shall be considered outside the scope of the base contract and will be billed in accordance with EEI’s Standard Schedule of Charges (Attachment D) in affect at the time the extra work is performed. ATTACHMENT C: ESTIMATE OF LEVEL OF EFFORT AND ASSOCIATED COSTPROFESSIONAL ENGINEERING SERVICES CLIENT UNITED CITY OF YORKVILLE PROJECT TITLE DATE PREPARED BY 2025 STORMWATER BASIN INSPECTIONS RATE $256 $243 $218 $159 $159 $75 ENGINEERING SERVICES 2.1 Project Management and Administration 1 2 8 11 2,014$ 2.2 2025 Basin Inspection 1 4 36 41 6,952$ 2.3 2024 Basin Inspection Follow Up 1 4 40 45 7,588$ 2.4 Property Owner Coordination 1 4 8 13 2,500$ Design Engineering Subtotal:4 14 - 92 - - 110 19,054$ 4 14 - 92 - - 110 19,054 DIRECT EXPENSES Notes: Printing/Scanning = 150$ 1. See Detailed Scope and Exclusions on Attachment B - Scope of Services Mileage = 560$ DIRECT EXPENSES =710$ LABOR SUMMARY EEI Labor Expenses = 19,054$ TOTAL LABOR EXPENSES 19,054$ TOTAL COSTS 19,764$ 52 Wheeler Road, Sugar Grove, IL 60554 Tel: 630.466.6700 Fax: 630.466.6701 www.eeiweb.com 6/9/2025 SENIOR PE II PROJECT TECH CAD ADMIN SENIOR PM PROJECT TOTAL: TNP COSTTASK NO.WORK ITEM1 HOURSROLEPRINCIPAL EMPLOYEE DESIGNATION CLASSIFICATION HOURLY RATE Senior Principal E-4 $256.00 Principal E-3 $251.00 Senior Project Manager E-2 $243.00 Project Manager E-1 $218.00 Senior Project Engineer/Surveyor II P-6 $208.00 Senior Project Engineer/Surveyor I P-5 $193.00 Project Engineer/Surveyor P-4 $175.00 Senior Engineer/Surveyor P-3 $161.00 Engineer/Surveyor P-2 $146.00 Associate Engineer/Surveyor P-1 $132.00 Senior Project Technician II T-6 $182.00 Senior Project Technician I T-5 $171.00 Project Technician T-4 $159.00 Senior Technician T-3 $146.00 Technician T-2 $132.00 Associate Technician T-1 $115.00 GIS Technician II G-2 $130.00 GIS Technician I G-1 $119.00 Engineering/Land Surveying Intern I-1 $ 85.00 Executive Administrative Assistant A-4 $ 80.00 Administrative Assistant A-3 $ 75.00 VEHICLES. DRONE, EXPERT TESTIMONY, REPROGRAPHICS AND DIRECT COSTS* Vehicle for Construction Observation $ 20.00 Unmanned Aircraft System / Unmanned Aerial Vehicle / Drone $235.00 Expert Testimony $290.00 In-House Scanning and Reproduction $0.25/Sq. Ft. (Black & White) $1.00/Sq. Ft. (Color) Reimbursable Expenses (Direct Costs) Cost Services by Others (Direct Costs) Cost + 10% * unless specified otherwise in agreement STANDARD SCHEDULE OF CHARGES ~ JANUARY 1, 2025 Attachment D