HomeMy WebLinkAboutChicago Central and Pacific Railroad Co.-Right of Entry Agreement-10.26.2009 RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made as of this NI-day
of2009, between the CITY OF WATERLOO, IOWA, an Iowa municipal corporation
("Owner"), and CHICAGO CENTRAL AND PACIFIC RAILROAD COMPANY, a Delaware
corporation ("Chicago Central").
1. Owner grants to Chicago Central 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) replacing the existing
railroad bridge located directly southeasterly of the intersection of Broadway Street and Wagner
Road (the "Project"), and (b) establishing a site for outdoor storage of materials and equipment
and for construction work on bridge 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 Chicago Central's repair of the Property used by Chicago
Central for the Project, as set forth below.
3. Chicago Central shall also have the right to haul materials onto the Property in order for
Chicago Central to replace its bridge located southeasterly of the intersection of Broadway Street
and Wagner Road. Once Chicago Central has completed replacement of its bridge, Chicago
Central shall restore the condition of the Property to its original condition. The Owner has an 8"
sanitary sewer line that crosses from the Owner's property, traveling northeasterly across
Chicago Central's property, connecting into a 12" sanitary sewer line owned by the Owner that
then travels southeasterly, northeast of Chicago Central's railroad tracks. Chicago Central, its
employees, agents and contractors shall be aware of the existing sanitary sewer, and shall be
responsible for any damages that occur to the sanitary sewer where it is located on the Owner's
property caused by its employees, agents and contractors during the terms of this agreement.
4. After Chicago Central has restored the Property to its original condition, Chicago Central
shall notify Owner so that Owner may inspect Chicago Central's work on the Owner's Property.
Owner shall either advise Chicago Central of deficiencies in Chicago Central's restoration of the
Property, or approve and accept the restoration of the Property by Chicago Central. Owner
acknowledges that the restoration of the Property by the Chicago Central 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. Chicago Central 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 Chicago Central, Chicago Central'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 Chicago Central 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
Chicago Central. Chicago Central 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 Chicago Central 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 outdoor equipment and material
storage and construction work uses by Chicago Central 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. Chicago Central 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 Chicago Central breaches such obligation,
or if contamination of the Property from Hazardous Substances is caused or contributed to by the
acts or omissions of Chicago Central, 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, Chicago Central 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 Chicago
Central shall first obtain Owner's approval of any such action. The parties acknowledge
Chicago Central, 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 Chicago Central 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. Chicago Central 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
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notice to Chicago Central and does not interfere in any material way with Chicago Central'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
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: CITY OF WATERLOO, IOWA
Attn: City Engineer
715 Mulberry Street
Waterloo, Iowa 50703
Telephone: (319) 291-4312
Facsimile: (319) 291-4262
Chicago Central: CHICAGO CENTRAL AND PACIFIC RAILROAD CO.
ATTN: Brad Koenig, Bridge Supervisor, Iowa Zone
1006 East 4th Street
Waterloo, IA 50703
Telephone: (319) 236-9238
Facsimile: (319) 292-3302
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, Chicago Central shall provide Owner with names and contact information for
Chicago Central's 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 Chicago Central 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: _ -z-t-- ",- ,_.v.g4,,
Title: I 'Um.
CHICAGO CENTRAL AND PACIFIC
RAILROAD COMPANY,
a Delaware corporation
By:
Title:
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EXHIBIT A
[Please see attached print(s) showing the separate work area, including access routes from
such areas to public rights-of-ways, as well as the legal description of the proposed right-of-
entry area.]
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