Loading...
HomeMy WebLinkAboutChicago Central and Pacific Railroad Company-5/14/2012www.cn.ca October 5, 2012 Ernest G. Clark, Mayor City of Waterloo Attn: City Clerk & Finance Department 715 Mulberry Street Waterloo IA 50703 Southern Region Harlan R. Arians Manager Public Works 1006 East Fourth Street Waterloo, IA 50703 319-236-9205 Office 319-238-9207 Facsimile RE: Agreement for multi -use pathway and sidewalk, Waterloo IA DOT #307944T, Milepost 1.04, Waterloo Subdivision Dear Mr. Clark; Enclosed for your files is fully executed copy of agreement executed by the railroad covering the above subject matter. Take care. Yours truly, cW;u4-ii Harlan R. Arians Manager Public Works Cc; JD Pratt JE Weepie MH Thompson Please return this copy to: City Clerk & Finance Department 715 Mulberry Street Waterloo, IA 50703 LICENSE FOR MULTI -USE PATHWAY THIS LICENSE, made and entered into as of thefth day of May, 2012, by and between the CHICAGO CENTRAL AND PACIFIC RAIL OAD COMPANY (hereinafter referred to as "Licensor') whose mailing address is 17641 S. Ashland Avenue, Homewood, Illinois, 60430-1345 and the CITY OF WATERLOO Iowa (hereinafter referred to as "Licensee") whose mailing address is 715 Mulberry Street, Waterloo, Iowa, 50701; WITNESSETH: IN CONSIDERATION of the sum of SEVEN HUNDRED FIFTY Dollars ($750.00) paid to Licensor by Licensee, for the preparation of this License, and of the mutual covenants and agreements herein set forth, Licensor, insofar as it lawfully may, does hereby grant unto Licensee license and permission to construct, maintain, operate and use both a new ten foot (10') multi -use pathway and a five foot (5') sidewalk (hereinafter collectively referred to as "Pathway") upon, over and across the property or right-of-way of Licensor (including the track located thereon) adjacent to Logan Avenue (DOT #307944T) at/near Licensor's North Waterloo Industrial Lead on its Waterloo Subdivision, as shown and outlined in magenta on the print marked Exhibit A attached hereto and made a part hereof, UPON AND SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS: 1. DEFINITIONS. (a) Licensor's Property. "Licensor's Property" shall mean the property shown on the attached print, to the extent owned by Licensor, whether owned in full ownership or as a servitude, easement, or right-of-way, including Licensor's track, the land on which the track is situated, and any adjacent land of Licensor on either side of the track. (b) Licensee's Property. "Licensee's Property" shall mean both the new ten foot (10') multi -use pathway and a five foot (5') sidewalk right-of-way beyond the Licensor's Property. (c) License. "License" shall mean the right granted by Licensor to Licensee to own, construct, maintain and use the Pathway, under the terms and conditions set forth hereinafter. (d) License Area. "License Area" shall mean that portion of Licensor's Property over and across which the License is granted. (e) Roadway. "Roadway" shall mean that portion of the License Area encompassing the approaches on either side of the Crossing Proper beyond the end -of -ties, and including that portion between tracks if/where multiple tracks exist. Crossing Proper. "Crossing Proper" shall mean that portion of the license area encompassing an area from end -of -tie to end -of -tie. Pedestrian Pathway. "Pedestrian Pathway" shall mean both the new ten foot (10') multi -use pathway and the five foot (5') sidewalk (hereinafter collectively referred to as "Pathway") as shown on the print attached hereto and made a part hereof that is contained within both the Roadway and Crossing Proper collectively encompassing the License Area on the Licensor's Property. (h) Cost. "Cost" shall mean the actual cost of labor, equipment and materials plus Licensor's then current customary additives for overhead and other indirect costs. 2. USE. (a) The Licensee shall only affect and burden the Licensor's Property within the confines of this License, and the Pathway shall be constructed, located, and maintained entirely within the said license area. Licensee shall have no right to use or cross any other portion of Licensor's Property with said Pathway or to use the Roadway and Crossing Proper individually for any purposes other than as expressly permitted herein. Unless otherwise provided in this License, Licensee shall comply with all terms and conditions of the said grant of License to Licensee. (b) Licensee shall not do or permit to be done any act which will in any manner interfere with, limit, restrict, obstruct, damage, interrupt, or endanger Licensor's operations or facilities. Licensee shall not use any other property of Licensor other than that which is occupied by the Pathway without first obtaining Licensor's prior written consent (which may be denied for any reason) and complying with all of Licensor's requirements applicable thereto. (c) Licensee shall require and shall take all steps necessary to ensure that all persons using the Pathway come to a complete stop, look carefully for approaching trains before fouling or crossing Licensor's tracks, and yield to any approaching train. (d) The Pathway shall not be used by motorized vehicles of any size or type (including, but not limited to, ATV's, snowmobiles, motorcycles, etc.). The Pathway shall only be used by pedestrians and/or people riding bicycles. (g) It shall be Licensee's responsibility and duty to prevent all unauthorized persons from using the License Area and nothing herein shall be construed to relieve Licensee of this responsibility and duty. Licensee shall not permit any hazardous material to be deposited on the lands of Licensor. Notwithstanding the foregoing, if hazardous material is so deposited by Licensee, Licensee shall indemnify, save harmless and defend Licensor from and against any claims made against Licensor arising therefrom. For the purposes of this License, "Hazardous Material" shall mean any substance (i) defined as "hazardous substance" under Section 1.01(14) of CERCLA, 42 U.S.C. 9601 (14) or any successor regulation; (ii) containing petroleum, including any fraction thereof; or (iii) determined to be deleterious to human health or the environment by any federal, state or local environmental, occupational health, or public health agency or authority. Licensee expressly agrees to be responsible for any such contamination of the lands of Licensor or any adjacent premises, and if any contamination occurs on such premises, Licensee shall be responsible to clean-up, remediate and restore said premises to their original condition or to a condition that is in compliance with the applicable state and federal laws and regulations and all local ordinances. For the purposes of this Section the term Licensor shall include not only Licensor named herein but also any parent company(ies), subsidiary(ies) or affiliates(s) of Licensor, or its or their agents, servants, employees, directors, officers, contractors, subcontractors or suppliers. Licensor does not undertake to provide a means of ingress and egress for the Pathway, except under lands of Licensor, as herein specified, and in a manner approved by the Chief Engineer of Licensor, or his duly authorized representative. (h) Licensor reserves the right to grant licenses to others, but such licenses shall not interfere with Licensee's use and enjoyment of the rights granted this License. 3. TERM. (a) This License shall become effective as of the date first written above and shall continue in effect thereafter until terminated in one of the manners set forth below: (i) Licensor shall have the right to terminate this License immediately upon written notice to Licensee if Licensee at any time breaches or fails to perform any of the terms and conditions hereof; (ii) This License shall terminate through non-use or in any other manner provided by law; or (iii) This License may be terminated by mutual consent of the parties hereto. (b) Unless the parties mutually agree in writing to leave the Pathway in place after termination, the termination of this License may not be effective, which determination shall be made in Licensor's sole discretion, until all removal and restoration is complete. Termination of this License shall not release Licensee from any liability or responsibility and duty which accrued prior to such termination, removal and restoration. (c) If Licensee shall fail to make the required restoration, Licensor shall have the further option to elect and notify Licensee that all right, title and interest of Licensee in any of its property shall be forfeited and shall vest absolutely in Licensor as of the date of notice of such election. (d) Should Licensor exercise its right of termination, Licensee will support termination of this License and cessation of the Pathway at any necessary hearings, proceedings or dockets before any regulatory body with jurisdiction over the Pathway. (e) Licensee shall pay to Licensor upon execution of this License the sum of SEVEN HUNDTED FIFTY DOLLARS ($750.00) to cover preparation, administration, property encumbrance of this License, and for the privilege granted. The aforesaid sum is not refundable in the event Licensee elects not to enter upon Licensor's property or in the event Licensor elects to terminate this license for any reason whatsoever. 4. CONSTRUCTION. (a) The Pathway shall be constructed and maintained in accordance with Licensee's plans and specifications and as approved by Licensor. Licensor will construct and maintain the crossing surface and related trackwork. Licensee will construct and maintain all asphalt, pavement markings and warning signs, within and outside Licensor's property. All initial construction and work and all future construction and maintenance by either party will be at Licensee's sole cost and expense and in a manner that is to the satisfaction of Licensor's Chief Engineer. (b) Licensee shall be responsible for determining the location, elevation and extent of all utilities, underground structures and/or obstructions in the vicinity of the installation whether shown on the plans or not. (c) Licensee's use, as herein defined, shall be such that it shall cause a minimum of interference with the natural drainage of Licensor's lands. Any drainage facilities required by the installation or use of the Pathway shall be constructed, maintained, repaired and removed by Licensee, at 5 Licensee's sole cost and expense, and all work associated herewith shall be subject to the approval of the Chief Engineer of Licensor, or his duly authorized representative. (d) Licensee shall be responsible for all additional costs incurred as determined by Licensor to accommodate railroad maintenance (i.e. mechanized surfacing operations, tie and rail replacements, etc.) of Licensor's track and facilities. Further, Licensee shall be responsible for any additions to track and facilities impacting the Pathway. (e) The Pathway and any appurtenances thereto shall be constructed such that vehicular traffic visibility will not be adversely affected. 5. RELOCATION CHANGES AND ALTERATIONS. (a) When and as often as Licensor shall require to have the location and/or elevation of the Pathway, or any portion thereof changed for the purposes of making improvements to the facilities of Licensor, including the installation of an additional track(s), minimizing any unreasonable hazards presented by the Pathway, or the contents thereof, Licensee shall, at its own cost and expense with due diligence but in any event not later than sixty (60) days after receipt of written notice from Licensor, change the location and/or elevation of the Pathway, or any portion thereof, to such a location and/or elevation as shall be designated by the Chief Engineer of Licensor, or his duly authorized representative. (b) In the event Licensee submits in writing a request to Licensor to extend the sixty (60) day relocation period, Licensor shall respond within thirty (30) days. Such extension request shall not be unreasonably withheld. (c) Licensee agrees that upon reasonable request from Licensor, it will, at its own cost and expense, make changes or alterations to the Pathway when Licensor's operations require modification to Licensor's facilities, or to minimize hazards presented by the Pathway or to the contents thereof. (d) In the event Licensee shall fail to change the location or elevation of, renew or repair, alter, or make any changes reasonably requested by Licensor to the Pathway or any portion thereof, or to correct any defective conditions after receipt of written notice from Licensor as hereinbefore provided and within the time stipulated, then Licensor may, without further notice to Licensee, perform said work. The total cost of such work performed by Licensor hereunder shall be at the sole cost and expense of Licensee and Licensee shall reimburse Licensor for said costs and expenses upon receipt of same from Licensor. 6. NOTIFICATIONS. (a) At least fifteen (15) days prior to Licensee's desire to enter upon Licensor's Property for the purpose of performing any construction or maintenance work hereunder, Licensee shall provide advance notification to Licensor's Engineering Manager in writing of the type of work to be performed and the date such work will commence and shall coordinate all work with Licensor's Engineering Manager. Licensee shall not be permitted to enter upon Licensor's premises, unless and until Licensor's Engineering Manager has reviewed Licensee's request and approved same. If Licensor approves Licensee's request to enter upon Licensor's Property upon the condition of certain safety precautions, including but not limited to, flaggers, Licensee shall not be permitted to enter upon Licensor's Property until all of said safety precautions are actively in place. The Licensee's request notice shall be sent to the following address: Engineering Manager Chicago, Central & Pacific Railroad Company 1006 East Fourth Street Waterloo, IA 50703 (b) Any notice, other than the advance notification described herein above, required or permitted to be given under this License shall be in writing and deemed to have been given when deposited in a United States Post Office, registered or certified mail, postage prepaid, return receipt requested and addressed as follows: If to Licensor: Manager Public Works Chicago, Central & Pacific Railroad Company 1006 East Fourth Street Waterloo, IA 50703 If to Licensee: City of Waterloo/City Engineer 715 Mulberry Street Waterloo, Iowa, 50701 7. RAISING WIRE LINES. If it should be necessary to raise any wires on Licensor's property not belonging to Licensor to provide safe clearance for Pathway users, Licensee shall make all arrangements therefor at its own sole risk and expense. 8. MAINTENANCE. Licensee shall, at its own risk and expense, maintain said Pathway in good and safe condition commensurate with its intended use. Licensor shall, at the sole risk and expense of Licensee, maintain the Crossing Proper, however, Licensor shall have the right, but not the duty, to perform at Licensee's sole risk and expense, any repair or maintenance on the Pathway that Licensor considers reasonably necessary and Licensee shall pay the cost thereof upon receipt of a bill whether made at Licensee's request or otherwise. Notwithstanding any other provisions of this License, nothing contained herein shall relieve Licensee from its obligation to inspect and at all times maintain in good condition and repair the Pathway, and its facilities located under, upon or over the land of Licensor, or impose any obligation upon Licensor in respect to such inspection and maintenance. 9. FLAGGING. Licensee shall, at its own risk and expense, provide whatever flag protection Licensor shall indicate is necessary. Licensor shall have the right, but not the duty, to provide any such flag protection at Licensee's sole risk and expense and Licensee shall pay the cost thereof upon receipt of a bill. It is further understood and acknowledged by Licensee that Licensor has no obligation or duty to determine the need for any flag protection. 10. CROSSING TO BE KEPT FREE OF DEBRIS. Licensee shall at all times during the term of this License, keep the Licensor's track free of dirt, rocks, snow, or other debris or obstructions of any kind, and will not permit any condition which might interfere with the safe and efficient operation of trains over the Crossing Proper, or which might damage equipment or facilities belonging to Licensor or others, or which might constitute a safety hazard of any kind. If at any time Licensee shall fail to do so, Licensor may, at its option, remove any dirt, rocks, snow, debris or obstructions, and Licensee will pay Licensor the cost thereof promptly upon receipt of bill therefor. 11. SIGNS, SIGNALS AND WARNING DEVICES. Licensee acknowledges that Licensor has no obligation or duty to reduce the speed of its trains, nor alter its operations in any manner, owing to the presence or existence of the Pathway or other use or exercise of the license or permission granted herein. Licensee assumes, at its own risk and expense, sole responsibility for determining, in conjuction with any governing state regulatory agency, if any signs, signals or other warning devices are necessary or appropriate for the safety of persons using the Pathway in the vicinity of Licensor's track(s) and specifically acknowledges that Licensor has no obligation or duty whatever to make any such determination. If the installation of any signs, signals or warning devices on either side of the Crossing Proper is presently or hereafter required by law or by competent public authority, or is otherwise requested by Licensee and agreed to by Licensor, same shall conform to any then currently applicable practices of Licensor for such devices as to design, material and workmanship and all costs incurred by Licensor related to the installation, operation, maintenance, renewal, alteration and upgrading thereof shall be solely borne by Licensee. 12. INDEMNITY. As a further consideration for the License herein granted, and as a condition without which the License would not have been granted, Licensee agrees, regardless of any negligence or other legal fault by or on the part of Licensor or its officers, employees or agents, fully to defend, indemnify and save harmless Licensor and its officers, employees and agents, from and against any and all claims, demands, actions and causes of action, and to assume all risk, responsibility and liability (including all liability for expenses, attorney's fees and costs incurred or sustained by Licensor, whether in defense of any such claims, demands, actions and causes of action or in the enforcement of the indemnification rights hereby conferred), (a) for death of or injury to any and all persons, including but not limited to the officers, employees, agents, patrons, invitees and licensees of the parties hereto, and for any and all loss, damage or injury to any property whatsoever, including but not limited to that belonging to or in the custody and control of the parties hereto, in whole or in part arising from, growing out of, or in any manner or degree directly or indirectly caused by, attributable to or resulting from the grant or exercise of this License, the failure of Licensee to conform to the conditions of this License, work performed by Licensor for Licensee under the terms of this License, work performed by Licensee under the terms of this License, or from the construction, installation, maintenance, repair, renewal, alteration, change, relocation, existence, presence, use, operation or removal of any structure incident thereto, and (b) for death of or injury to the officers, employees, agents, patrons, invitees and licensees of Licensee and for any and all loss, damage or injury to their property, and to any property belonging to or in the care, custody or control of Licensee, in whole or in part arising from, growing out of, or in any manner or degree directly or indirectly caused by, attributable to or resulting from the conduct of any railroad operations at or near the area in which the herein conferred License is granted or exercised. It is the intention of the parties hereto that Licensee shall by solely responsible for all such destruction or damage to any property or for personal injury to or death of any persons which would not have occurred if such Pathway had never been constructed or used. 9 Licensee shall at its sole expense join in or assume, at the election and on demand of Licensor, the defense of any claims, demands, actions and causes of action hereunder arising. The word "Licensor" as used in this Section shall include the assigns of Licensor and any other railroad company that may be operating upon and over the tracks crossing the License Area. 13. INSURANCE. (a) Prior to the commencement of construction of the Pathway and/or entering onto the property of Licensor for the activities provided herein, Licensee (and all contractors retained by the Licensee in conjunction with this Agreement) will obtain, at its sole cost and expense, and keep in effect during the term of this License, insurance adequate to cover all liability herein assumed by Licensee and to protect Licensor, its officers, directors, stockholders, employees and agents with respect to losses arising out of this License and incurred by Licensee, its officers, directors, stockholders, employees, and agents. Such insurance shall be placed with insurance carriers reasonable acceptable to Licensor and shall include by not be limited to: (i) Statutory Workers Compensation/Employers Liability with an Employers Liability Limit of not less than $1,000,000 Each Accident. (ii) Commercial General Liability Insurance Coverage (Occurrence Form), including contractual coverage, with a limit of not less than $5,000,000 each occurrence, with an aggregate of not less than $10,000,000, endorsed to reflect that the railroad liability exclusion is deleted from the definition of an insured contract. (iii) Commercial Automobile Liability Insurance Coverage with a limit of not less than $1,000,000 each accident. The policy must be endorsed to reflect that the railroad liability exclusion is deleted from the definition of an insured contract. (b) The above policies shall name Licensor and its officers, directors, stockholders, employees, and agents as additional insureds and shall be endorsed to provide coverage to these additional insureds on a primary (non -contributor) basis. In addition, the policies shall contain Severability of Interest Clauses and Waivers of Subrogation in favor of Licensor and its officers, directors, stockholders, employees, and agents. (c) Licensee, and all contractors, suppliers, etc., retained by Licensee in conjunction with this License, shall furnish to Licensor insurance 10 certificates in the standard Acord form acceptable to Licensor evidencing compliance with the foregoing requirements and stating that the insurers will provide 30 days written notice of the cancellation or material alteration in any of the required policies of insurance. Licensee shall also require those subcontractors, supplies, etc, who are directly involved in the construction, maintenance or removal of the Pathway to carry and furnish evidence of the above coverages. 14. REMOVAL OF PATHWAY AND CROSSING PROPER. Prior to termination of this License, Licensee shall remove the Pathway from Licensor's Property (except for the Crossing Proper located between the ends of ties) and restore the Licensor's Property, as near as may be to its former condition, insofar as such restoration may in the opinion of Licensor's duly authorized representative be practical, all at Licensee's sole risk and expense. If Licensee fails to so remove and restore, Licensor shall have the right, but not the obligation, to do so at Licensee's sole risk and expense. Upon termination, Licensor shall have the right, but not the duty, to remove both the Roadway and Crossing Proper and to restore the Licensor's Property, all at Licensee's sole risk and expense. Licensee shall promptly pay the cost of any work performed by Licensor upon presentation of a bill. 15. ORDINANCES, REGULATIONS, ETC. (a) Licensee, at Licensee's sole cost and expense, shall comply with all applicable ordinances, rules, regulations, requirements and laws of any governmental authority, federal, state or local, having jurisdiction over Licensee's use and occupations, including but not limited to zoning, health, safety, building or environmental matters. (b) Licensee shall further defend, indemnify and hold Licensor harmless from any violations thereof, any penalty, levy, fine or assessments therefrom, and all cost of defense of or compliance with any citation, order or violation notice(s), including any such penalties, levies, fines, assessments, compliance or remedial charge(s) caused by or arising from this License or termination thereof, including any violations, fines or penalties arising after term of this License. For the purposes of this Section 15., the term Licensor shall include not only Licensor named herein but also any parent company(ies), subsidiary(ies) or affiliate(s) of Licensor, or its or their agents, servants, employees, directors, officers, contractors, subcontractors or suppliers. (c) Licensee shall determine whether a permit, license or other type of documentation is required by applicable law for the construction, maintenance, operation, use or removal of the Pathway. 11 16. CLAIM OF TITLE. Licensee shall not at any time own or claim any right, title or interest in or to the lands of Licensor, nor shall the exercise of this License for any length of time give rise to any right, title or interest in or to the lands of Licensor, other than the license herein created. Licensor makes no warranty or guarantee of title to the premises, suitability of the premises for Licensee's purposes or any purposes, whether the premises may or might have been contaminated with Hazardous Materials as defined in paragraph 2(f). This License is extended subject to all of the limitations, reservations and restrictions upon the title of Licensor. Licensee accepts the premises "as is, where is" with all faults. Licensee shall be solely responsible, at its sole cost and expense, to secure any other or additional license, permit, permission or right necessary to construct, maintain, operate, use or remove the Pathway. 17. RECORDING. Licensee shall not record this License without the written consent of Licensor, such consent not to be unreasonably withheld. However, upon the request of either party hereto the other party shall join in the execution of a memorandum or so-called "short form" of this License for the purpose of recordation, provided Licensor has consented as required above. Said memorandum or short form of this License shall describe the parties, the termination provision of this License and shall incorporate this License by reference. The party requesting the recording shall pay the recording costs. 18. ASSIGNMENT. Licensee shall not have the right to assign this License or any rights hereunder without first obtaining the consent in writing of the Licensor, which consent will not be unreasonably withheld. 19. HEADINGS. Headings used herein are placed for reading convenience and shall not have any other meaning, implication or purpose, legal or otherwise. 20. NON -WAIVER OF COVENANTS. The failure of either party to enforce any of the provisions of this License at any time shall in no way be construed to be a waiver of such provisions nor in any way affect the validity of this License, or any part thereof, nor the right of any party thereafter to enforce each and every such provision. 12 21. TAXES. The Licensee shall pay all taxes, general and special, license fees or other charges which may become due or which may be assessed against the premises of the Licensor because of the construction, existence, operation or use of said Pathway, or the business conducted in connection with said facility, and shall reimburse the Licensor for any such taxes, license fees or other charges which may be paid by the Licensor upon the presentation of bills therefor. 22. BILLS. All bills submitted by the Licensor to Licensee pursuant to the terms of this License shall be paid by Licensee within fifteen (15) days of receipt thereof. 23. ENFORCEABILITY. In the event that any parts, sections or other portions of this License are found unenforceable under the applicable law of any courts having jurisdiction over this License, the remaining parts, sections or other portions thereof and the enforcement of same shall not be affected and shall otherwise remain in full effect and enforceable. 24. RELATIONSHIP OF THE PARTIES. The relationship of the parties is that of independent contractors and in no way establishes an agency relationship. 25. SURVIVAL CLAUSE. Notwithstanding any other section of this License, the rights and obligations of the parties expressed in this License, including but not limited to, any provisions concerning Indemnity and Liability, shall remain in effect for any legal proceeding brought against Licensor, its officers or employees, which was commenced after the termination, for whatever reason, of this License but was caused by, alleged to be caused by, or grew out of any accident or occurrence which but for this License or the presence of Licensee's employees, agents, contractors, subcontractors, or suppliers pursuant to this License, would not have been incurred, except when such proceeding is attributable to the sole fault, failure or negligence of Licensor, its officers or employees, contractors, subcontractors, or suppliers. 26. ENTIRE AGREEMENT. This License and exhibits, if any, attached hereto and forming a part hereof, set forth all the covenants, promises, agreements, conditions and understandings between Licensor and Licensee concerning the premises and there are no covenants, promises, agreements, conditions or understandings, either oral or 'Y 13 written, between them other than are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this License shall be binding upon Licensor or Licensee unless reduced to writing and signed by them. IN WITNESS WHEREOF, the parties hereto have executed this License in duplicate as of the date first above written. CHICAGO, CENTRAL & PACIFIC RAILROAD COMPANY By Printed 7,41- A12.:GfLi Title CITY 0 B Printed Title ATERLOO 14 ULTI-USE PATHWAY & SIDEWALK Y CITY OF WATERLOO EXHIBIT A LOGAN AVENUE WATERLOO IOWA MP 1.04 DOT#307944T