Loading...
HomeMy WebLinkAboutCedar Valley Crop Right_of_Entry_Agreement 4.5.2021 RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (the "Agreement") is entered into as of April 5 2021, by and among the City of Waterloo, Iowa, an Iowa municipal corporation ("City"), Cedar Valley Corp., LLC ("CVC") and Peterson Contractors, Inc. ("PCI"). CVC and PCI are "Contractors." RECITALS A. City is the owner of real property in the city of Waterloo, Black Hawk County, Iowa, identified as parcel no. 8813-09-326-008 (th6 "Property") and generally located at the southeast corner of Ansborough Avenue and U.S. Highway 20. B. CVC and PCI are contractors who will engage in a project (the "Project') for reconstruction of a portion of U.S. Highway 20 in the general vicinity of the Property and desire to secure a location for siting of a portable concrete plant and deposit of dirt and waste material. C. City is willing to allow CVC and PCI to use a portion of the Property on the terms set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Project Site. Subject to the terms and conditions of this Agreement, City hereby grants to CVC and PCI the right to use that portion of the Property designated as "CVC Plant Site Approx. 6.58 Acres" and"PCI Waste Area Approx. 4.89 Acres"on the site overview attached hereto as Exhibit"A" (collectively, the "Project Site"). 2. Permitted Uses; Term. The "Permitted Uses"of the Project Site shall be (a) on the CVC Plant Site, the location and operation of a portable concrete plant, activities incident thereto, and temporary stockpile of raw materials, and (b) on the PCI Waste Area, the deposit of topsoil and other dirt of approximately 70,000 to 80,000 cubic yards, all in separate stockpiles. Notwithstanding any provision of this Agreement to the contrary, the concrete plant may not be operated on the Project Site until a site plan amendment has been approved or other necessary regulatory approval for such operation has been obtained. Subject to the provisions of this Agreement, Contractors may undertake their respective Permitted Uses from the date hereof until November 30, 2021, and by said date shall have completed to the reasonable satisfaction of City all of the demobilization and site restoration activities provided for in this Agreement. 3. NPDES Permit. Before commencing the Permitted Uses, Contractors shall apply for and receive all necessary permits from the Iowa Department of Natural Resources, including but not limited to an NPDES general permit no. 2, with reasonable opportunity for review and comment by City. Said permit shall include installation of appropriate SWPPP features to control the quality and quantity of storm water runoff upon and from the Project Site. 4. Handling of Topsail Native to Project Site. Before commencing the Permitted Uses, Contractors shall strip and stockpile on the Project Site the topsoil from all portions of the Project Site upon which it or they will conduct the Permitted Uses. Upon completion of the Permitted Uses, CVC and/or PCI will redistribute the stockpiled topsoil across the portions of the Project Site from which the topsoil was taken and shall stabilize same to mitigate erosion, provided that PCI may use up to approximately 1,200 cubic yards of topsoil from the Project Site for construction on Highway 20. 5. Restoration of CVC Plant Site. After removal of the concrete plant and all related equipment, waste, gravel and other materials, CVC shall rip the soil before topsoil is redistributed as provided in Section 4. 6. Stockpiles. CVC and PCI, as applicable, shall stabilize all stockpiles made by it to prevent unnecessary spread and erosion, including but not limited to the use of drainage pipes to allow for drainage from the stockpile site to the ditch of U.S. Highway 20 in approximately the same drainage course that exists before disturbance of the soil for Project purposes. Upon termination of this Agreement, and as compensation to City for the rights granted by this Agreement, Contractors will leave upon the Project Site any topsoil stockpiles that remain after redistribution of native topsoil as provided in Section 4. 7. Project Casts. Contractors shall bear all cost and expense of performance that in any way arises from or relates to this Agreement. In addition,Contractors will be responsible to reimburse L & H Farms, Ltd. or its tenant for any crop damage caused by the Project upon adjacent parcel 8813-09-176-004 or caused by enlargement of the Project Site beyond the intended boundaries. Further, CVC shall pay to Lanehaven Farms, tenant of the Property,the sum of$5,000.80 to cover rent payments owed by Lanehaven Farms to City under an existing lease agreement with respect to the CVC Plant Site. 8. Inspection. Contractors shall notify City after they have restored the Property to its original condition so that City may inspect the restoration work. City shall either advise Contractors of deficiencies in their restoration of the Property or shall approve and accept same. The parties acknowledge that the restoration of the Property by Contractors 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 City. 9. Insurance. Each Contractor shall, at its own expense, procure and maintain comprehensive public liability insurance in the amount of not less than$2,000,000 per occurrence. Such insurance shall cover liability assumed under an insured contract and liability arising from the acts or omissions of the insured Contractor, its officers, employees, contractors and agents, and shall protect the City, its officers, officials, employees, and agents, against any and all claims, damages, costs or expenses (including but not limited to reasonable attorneys' fees and expenses) arising from or in connection with injury or death to any person or persons, or loss of or damage to property, by reason of any casualty, accident or other occurrence on or about the Property during the term of this Agreement. Certificates or copies of said policies, naming the City as an additional insured, shall be delivered to City before Contractors, or their respective offices, employees, contractors or agents, enter upon the Property for any purpose. 2 10. Indemnification. Each Contractor agrees to be responsible for any liability which may arise out of its own acts or omissions and the acts or omission of its respective employees, agents and contractors, on or about the Property, including but not limited to liabilities relating to Hazardous Substances as defined in Section 11, and in said connection each Contractor agrees to indemnify and hold harmless City, its officials, officers, employees and agents, from and against any and all claims, demands, actions, causes of action, damages, losses, costs, fines, penalties, and liabilities of any type or nature whatsoever, including but not limited to reasonable attorneys' fees and including but not limited to those relating to Hazardous Substances,whether sounding in law or equity, in tort, contract or otherwise, arising out of said acts or omissions. The duties of Contractors under this Section shall survive the expiration or termination of this Agreement. 11. Hazardous Substances. This Agreement does not authorize Contractor, or their respective officers, employees, contractors or agents, to use, store or dispose of any Hazardous Substances on the Property, except as expressly provided herein, and any allowed use shall not be in violation of applicable law. "Hazardous Substance"means 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. If a Contractor breaches such obligation, or if contamination of the Property from Hazardous Substances is caused or contributed to by the acts or omissions of a Contractor, its officers, directors, employees, contractors or agents (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 City as provided in Section 10 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, the Contractor shall promptly notify City 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 Contractor shall first obtain City's approval of any such action. The parties acknowledge Contractor, its employees, contractors and agents, 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 each Contractor 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. This Section shall survive the termination or expiration of this Agreement. 12. Dispute Resolution. With respect to any court action to enforce or defend any claim, counterclaim, cause of action, or any matter arising from or in any way related to this Agreement, THE PARTIES HEREBY WAIVE THEIR RIGHTS TO A JURY TRIAL and agree to take any steps necessary to waive said rights. 3 13. General Terms. This Agreement is the entire agreement of the parties with respect to the subject matter hereof. It may be modified or amended only by a written instrument signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement may be executed in multiple counterparts, each of which, including signed counterparts transmitted by facsimile or other electronic means, shall be deemed an original and all of which together shall constitute one and the same instrument. Time is of the essence of this Agreement. IN WITNESS WHEREOF, the parties have executed this Right of Entry Agreement by their duly authorized representatives as of the date first written above. CITY OF WATERLOO, IOWA CEDAR V LEY CORP., LLC Q„e,1-F�,I Hu�-F By: Fo By: l �- Quentin Hart, Mayor Title: . Attest: Kelley �elchle Kelley Felchle, City Clerk PETERSON CONTRACTORS, INC. 11'7119y vp-d"CN,.❑Fl-h-, Chris D. Fleshn@rON G. a "�" °G By: Mg 2021 03 23 15:04:11-05'00' Title: Project Manager 4