HomeMy WebLinkAboutPeterson Contractors - right of entry agreement-8/14/2017J7198
RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made as of this Z'T" day
of Jug , 2017, between the CITY OF WATERLOO, IOWA, an Iowa municipal corporation
("Owner''), and PETERSON CONTRACTORS INCORPORATED, ("PCI").
1. Owner grants to PCI the right to enter upon and use the parcel of land (the "Property") in
the city of Waterloo, Black Hawk County, Iowa, shown on the prints attached hereto as Exhibit
A and hereby made a part hereof, for purposes of (a) constructing a new Highway 63 overpass
over the existing railroad tracks (the "Project"), and (b) establishing parking and a staging site
for outdoor storage of materials and equipment and for construction work on overpass
components as shown on Exhibit A.
2. The term of this Agreement shall commence on the date hereof and terminate upon the
Owner's approval and acceptance of PCI's repair of the Property used by PCI for the Project, as
set forth below.
3. PCI shall also have the right to park and haul materials onto the Property in order to stage
to construct an overpass over the existing railroad bridge, located south of the intersection of
Conger/Newell Street and Highway 63 (Logan Avenue). Once PCI has completed the overpass,
PCI shall restore the condition of the Property to its original condition it was found it with proper
seeding and grading if necessary. There is a sanitary lift station on the southerly triangular
parcel and PCI shall maintain a 10' clearance from said station to allow for access if needed.
PCI, its employees, agents and contractors shall be aware of the existing sanitary sewer lift
station, and shall be responsible for any damages that occur to the sanitary sewer lift station
where it is located on the Owner's property caused by its employees, agents and contractors
during the terms of this agreement.
4. After PCI has restored the Property to its original condition, PCI shall notify Owner so
that Owner may inspect PCI's work on the Owner's Property. Owner shall either advise PCI of
deficiencies in PCI's restoration of the Property, or approve and accept the restoration of the
Property by PCI. Owner acknowledges that the restoration of the Property by the PCI after
completion of the Project is intended generally to restore the Property to its condition on the date
hereof, not to other specifications elected by the Owner.
5. PCI agrees to indemnify and save harmless Owner against and from any and all liability,
loss, costs and expense arising out of personal injury to or death of persons whomsoever, or loss
or destruction of or damage to property, where such personal injury, death, loss, destruction or
damage is caused by the negligence of PCI, PCI's agents, contractors, servants or licensees, in
entering upon the Property pursuant to this Agreement. To the extent permitted by applicable
law, Owner shall defend, indemnify, and hold harmless PCI from and against losses, damages,
costs and expenses (including fines, penalties and reasonable attorney's fees) which may result
from the presence of any Hazardous Substances on or near the Property, except to the extent
released on or under the Property by PCI. PCI shall defend, indemnify, and hold harmless Owner
from and against losses, damages, costs and expenses (including fines, penalties and reasonable
attorney's fees) which may result from the release by PCI of any Hazardous Substances on or
under the Property. "Hazardous Substance" shall mean any hazardous, toxic, dangerous or
extremely dangerous substance, material or waste, which is or becomes regulated by the United
States government, the State of Iowa, or any local governmental entity, and shall include,
without limitation, any flammables, explosives, radioactive materials, hazardous materials,
hazardous waste, hazardous or toxic substances or related materials defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
the Hazardous Materials Transportation Act, as amended, the Resource Conservation Recovery
Act, as amended, and/or the regulations promulgated pursuant thereto. The rights and
obligations set forth in this Section 5 shall survive the termination or expiration of this
Agreement.
6. Owner hereby represents that:
(i)
it has the full right and authority to enter into this Agreement and consummate the
transaction contemplated by this Agreement;
(ii) the zoning regulations of Owner permit the parking and outdoor equipment and
material storage and construction work uses by PCI which are contemplated by
this Agreement; and
(iii) Owner has received no notice from any entity indicating the presence of any
Hazardous Substance on or under the Property or of any other violation of any
applicable environmental law, rule, ordinance, or regulation by or at the Property.
7. PCI shall not knowingly cause or permit any Hazardous Substance to be brought upon,
kept, or used in or about the Property in violation of applicable law by its employees, agents,
contractors, guests, or invitees. If PCI breaches such obligation, or if contamination of the
Property from Hazardous Substances is caused or contributed to by the acts or omissions of PCI,
its officers, directors, employees, agents, contractors, guests, or invitees (a "Breaching Party") or
otherwise occurs for which the Breaching Party is legally liable, then the Breaching Party shall
indemnify, defend, and hold harmless the Owner as provided in Section 5 above. Without
limiting the foregoing, if the presence of any Hazardous Substance caused or permitted by the
Breaching Party results in any contamination of the Property, PCI shall promptly notify Owner
of such contamination and shall, at its sole expense, take all actions as are necessary to return the
contaminated area to the condition existing prior to the introduction of any such Hazardous
Substance; provided that PCI shall first obtain Owner's approval of any such action. The parties
acknowledge PCI, its employees, agents, and contractors, will be using machinery to carry out
the Project and said machinery necessarily requires for proper operation the use of substances
defined as Hazardous Substances for purposes of this Agreement. The use of such substances for
said purposes is permitted, provided that PCI observes the requirements of this Agreement in the
event that any Hazardous Substance is spilled, discharged or otherwise released so as to cause
contamination of the Property.
8. PCI shall permit Owner and its agents, employees and representatives to enter upon the
Property to inspect the Property so long as Owner provides reasonable advance notice to PCI and
does not interfere in any material way with PCI's use of the Property.
9. Any notices required or desired to be given under this Agreement shall be in writing and
personally served, given by overnight express delivery, or given by mail. Any notice given by
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mail shall be sent, postage prepaid, by certified mail, return receipt requested, addressed to the
party to receive at the following address or at such other address as the party may from time to
time direct in writing:
Owner:
PCI:
CITY OF WATERLOO, IOWA
Attn: City Engineer
715 Mulberry Street
Waterloo, Iowa 50703
Telephone: (319) 291-4312
Facsimile: (319) 291-4262
PETERSON CONTRACTORS, INC.
ATTN: Cordell Peterson, President
104 Black Hawk Street
Reinbeck, IA 50669
Telephone: (319) 345-2713
Facsimile: (319) 345-2991
Express delivery notices shall be deemed to be given upon receipt. Postal notices shall be
deemed to be given three (3) days after deposit with the United States Postal Service.
Additionally, PCI shall provide Owner with names and contact information for PCPs Property
representative and its contractor's site representative.
10. This Agreement shall be governed, construed and enforced in accordance with the laws
of the State of Iowa.
11. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and
their successors and assigns.
12. Any provisions that require observance or performance subsequent to termination shall
survive termination.
13. Should either party institute any action or proceeding to enforce or interpret this
Agreement or any provision hereof, for damages by reason of any alleged breach of this
Agreement or of any provision hereof, or for a declaration of rights hereunder, the prevailing
party in any such action or proceeding shall be entitled to receive from the other party all costs
and expenses, including reasonable attorneys' fees incurred by the prevailing party in connection
with such action or proceeding. The term "action or proceeding" shall mean and include actions,
proceedings, suits, arbitrations, appeals and other similar proceedings.
IN WITNESS WHEREOF, Owner and PCI have caused this Right of Entry Agreement to
be executed by their duly authorized representatives as of the day and year first above written.
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Owner: CITY OF WATERLOO, IOWA
an Iowa municipal corporation
By.
Title: tkuNei
PETERSON CONTRACTORS, INC.
an Iow • ' •' oration
By:
Title:
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president
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Citlj of Waterloo, Iowa
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October 21, 2009
Honorable Timothy Hurley, Mayor
City Council Members
City Hall
Waterloo, Iowa
RE: Request for approval of a Right -of -Entry Agreement to allow Chicago
Central and Pacific Railroad to utilize portions of City right-of-way for a
rail bridge replacement project.
Dear Mayor and Council,
Transmitted herewith is a request Chicago Central and Pacific Railroad Company for
a right -of -entry agreement to utilize portions of City owned right-of-way for a
laydown area to coincide with a railroad bridge replacement project near the northeast
corner of Broadway Street and Wagner Road.
Chicago Central Railroad is planning to replace a nearby rail bridge, noting that the
bridge is beginning to deteriorate in some places. The railroad company has noted
that they plan to utilize the proposed laydown area as a staging area, as well as a
storage area for equipment and tanks that will be associated with the project. The City
is currently in the process of selling a portion of right-of-way directly northwest of the
laydown area, and the railroad has submitted a plat showing the proposed area use and
its legal description. The proposed laydown area will not encroach into the land the
City is currently selling. Also, there is an 8" sanitary sewer line near the project area,
and Chicago Central has been made aware of its existence. It has been spelled out in
the agreement that Chicago Central will be responsible for any damages that occurs to
the sanitary sewer line upon the City owned land.
Therefore, staff would request that the City Council approve the request for a right -of -
entry agreement between the City and Chicago Central and Pacific Railroad
Company. If you have questions in regards to the request, please contact our office at
291-4366.
Sincerely,
Aric A. Schroeder,
City Planner
Attachments'
AS:ta
Noel Anderson, Community Planning & Development Director
Eric Thorson, City Engineer
Jeff Bales, Associate Engineer
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