HomeMy WebLinkAboutIowa Northern Railway Company-License Agreement-10.12.2009 IOWA NORTHERN RAILWAY COMPANY
LICENSE AGREEMENT
This LICENSE AGREEMENT is made and entered into on this 12th day of
_October , 2009, by and between IOWA NORTHERN RAILWAY
COMPANY, 305 Second Street, Southeast, Suite 400, Cedar Rapids, IA 52401 ("RAILROAD") and
the CITY OF Waterloo, IOWA (the "CITY').
WHEREAS, the RAILROAD is an interstate common carrier by rail operating a railroad upon tracks
located in the CITY, all as generally shown on the map attached hereto as Exhibit A; and
WHEREAS, the CITY has initiated a project to construct the Recreational Trail Grade Crossing
Project, (hereinafter "the Project"), a portion of which a public recreational trail will cross the above
referenced tracks of RAILROAD at the location shown on Exhibit A; and
WHEREAS, the RAILROAD has reviewed CITY's plans and specifications for the construction of the
Project and has approved same; and
WHEREAS, the CITY and the RAILROAD have negotiated this License Agreement to provide for the
construction, operation, maintenance, repair, reconstruction, and replacement of said public
recreational trail grade crossing at the location shown and described in Exhibit A hereto, and as shown
on the plans and specifications previously approved by the RAILROAD.
NOW, THEREFORE, in consideration of the mutual promises and undertakings of the parties
expressed herein, the sufficiency of which is hereby acknowledged, the CITY and the RAILROAD do
hereby agree as follows:
1. Grant of License; Payment of License Fee; Term of License. In consideration of the payment of
a one-time fee of $750.00, in hand paid by the CITY as CITY, receipt of which is hereby
acknowledged by the RAILROAD, and the faithful performance by the CITY of the covenants herein
contained, the RAILROAD, insofar as it lawfully may, hereby issues and grants to the CITY a license
and permission to construct, operate, maintain, repair, reconstruct, and replace the public Recreational
Trail Grade Crossing and all related appurtenances thereto (the "Project Improvements"), as shown in
the plans and specifications for said Project approved by the RAILROAD over, through and across the
property of the RAILROAD in the CITY at the crossing location shown and described in Exhibit "A"
attached hereto ("Licensed Property").
The term of this license hereby granted shall be indefinite, except that the same shall automatically
terminate upon CITY's abandonment or nonuse of the Project or the Project Improvements for a period
of ninety days or more.
RAILROAD acknowledges and agrees that the consideration hereinabove provided constitutes full and
complete compensation for the interest hereby granted to the CITY upon the Licensed Property.
2. Subordination. This License and the permission herein granted to the CITY are subject and
subordinate to the rights of the RAILROAD, its successors and assigns, and its grantees, CITYs and
CITYs, to operate a railroad on the property shown and described in Exhibit "A" hereto and to use
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and maintain its entire property including the right and power of RAILROAD to construct, maintain,
repair, renew, use, operate, change, modify or relocate railroad tracks, roadways, signal,
communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any
or all parts of its property .
3. Permits. The CITY shall, at no expense to RAILROAD, obtain all permits and approvals required
to exercise this License and to undertake the construction, maintenance, repair or replacement of the
Project Improvements. The CITY shall construct, operate, maintain, repair, and replace the Project
Improvements in accordance with all requirements of lawful public authority shall bear any and all costs
and expenses associated with the Project, or any costs or expenses incurred by RAILROAD relating to this
Agreement.
4. Construction Methods and Materials. The Project Improvements shall be constructed of such
material and in such a manner as will assure the safety of RAILROAD and shall be as previously
approved by the RAILROAD.
5. Watchmen and Flagmen.
(a) No work of any kind shall be performed, and no person, equipment, machinery, tool(s),
material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within 25 feet of any of
RAILROAD'S track(s) at any time, for any reason, unless and until a RAILROAD flagman is provided
to watch for trains. All expenses connected with the furnishing of said flagman shall be at the sole cost
and expense of the CITY, who shall promptly pay to RAILROAD all charges connected therewith,
within 30 days after presentation of a bill therefore.
(b) The rate of pay per hour for each flagman will be the prevailing hourly rate in effect for an eight-
hour day for the class of flagmen used during regularly assigned hours and overtime in accordance
with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the
cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental
sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees
Liability and Property Damage and Administration will be included, computed on actual payroll. The
composite charge will be the prevailing composite charge in effect at the time the work is performed.
One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two
and one-half times current hourly rate for holidays.
(c) Wage rates are subject to change, at any time, by law or by agreement between the Railroad and its
employees, and may be retroactive as a result of a ruling of an authorized governmental agency.
Additional charges on labor are also subject to change. If the wage rate or additional charges are
changed, the CITY shall pay on the basis of the new rates and charges.
(d) Reimbursement to RAILROAD will be required covering the full eight hour day during which
any flagman is furnished.
(e) Arrangements for flagging are to be made at least Ten (10) days in advance of commencing work
with the RAILROAD.
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6. Requirements Applicable to CITY and Its Contractors During Initial Construction of Project
Improvements.
(a) The CITY will require its Project enineers to contact the RAILROAD's authorized representative,
Chief Engineer, located at 122 North 2" , Greene, Iowa, telephone (641) 816-5870, in writing, at least
ten (10) days prior to commencing any initial construction work on the Project on RAILROAD's
property. The CITY will require its contractor(s) to use all reasonable care to avoid accident, damage,
or delay to the RAILROAD'S operations, and to leave the RAILROAD's right-of-way in a clean and
orderly condition. All work herein provided to be done by the CITY'S contractor(s) on the
RAILROAD'S right-of-way shall be done under the supervision, inspection, and direction of the
CITY's personnel.
(b) In the event RAILROAD authorizes CITY to take down any fence of RAILROAD or in any
manner move or disturb any of the other property of RAILROAD in connection with the work to be
performed by CITY, then in that event CITY shall, as soon as possible and at CITY's sole expense,
restore such fence and other property to the same condition as the same were in before such fence was
taken down or such other property was moved or disturbed. CITY shall ensure all of its contractor's
tools, equipment, rubbish and other materials from RAILROAD'S property promptly upon completion
of the work, restoring RAILROAD'S property to the same state and condition as when CITY entered
thereon.
7. Requirements Applicable to CITY in Maintenance, Repair, Reconstruction or Replacement of
Project Improvements. The CITY shall, except in emergencies, give not less than seventy-two (72)
hours notice to RAILROAD of the day, hour and location that it proposes to undertake any
maintenance or repair work on the Project Improvements situated on the Licensed Property. In the
event the City determines the need to reconstruct or replace Project Improvements situated on the
Licensed Property, the City shall notify the RAILROAD thereof not less than three (3) months prior to
commencing work thereon. The provisions of this Agreement relating to the initial construction of the
Project Improvements shall also apply to any effort undertaken by the City to reconstruct or replace the
Project Improvements situated on the Licensed Property.
8. Operation of Railroad Not to be Interrupted. During construction, maintenance, repair,
reconstruction or replacement of Project Improvements on the Licensed Property, the CITY shall
coordinate its activity and those of its contractor(s) with the train operation schedule provided by the
RAILROAD. Nothing shall be done or permitted to be done by Contractor at any time that would in any
manner impair the safety of such operations. The CITY shall require its personnel and contractor(s) not to
unduly interrupt the operation of trains, nor to endanger the engines, rail cars, or other railroad
equipment of the RAILROAD and CITY and its contractors shall conduct their operations so as not to
interfere with the continuous and uninterrupted use and operation of the railroad tracks and property of
RAILROAD, including without limitation, the operations of RAILROAD'S lessees, licensees or
others.
9. Contractor Requirements - Insurance & Protection.
(a) The CITY shall require its contractor(s), as part of all contracts relating to the construction,
maintenance, repair, reconstruction or replacement of the Project Improvements, when engaged in
upon the RAILROAD's right-of-way, to indemnify and save harmless the RAILROAD against all loss,
liability, and damages that arise from the activities of the CITY or the CITY's contractor(s) or any
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agents in the performance of the construction, maintenance, repair, or reconstruction work on said
property. Notwithstanding the foregoing, nothing herein contained is to be deemed or construed as
indemnification against the negligence of the RAILROAD, or its officers, employees, or agents.
(b) The CITY will require its contractor(s) to provide, for and on behalf of the RAILROAD, Railroad
Protective Insurance as stated in the Code of Federal Regulations, Title 23, part 646, and any revisions
thereto issued by the Federal Highway Administration for damages because of bodily injury to or death
of persons and injury to or destruction of property resulting from the operations of the contractor(s),
subcontractors, or their employees on the Project, such insurance (written in the limits as shown
below) to be approved by and acceptable to the RAILROAD. Approval and acceptance shall not be
unreasonably withheld. The form of insurance to be furnished shall be in accordance with the Railroad
Protective Liability form, and shall be executed by an insurance company qualified in the State of
Iowa. Limits of such insurance shall be as follows:
Coverage A (Bodily Injury Liability); Coverage B (Property Damage Liability);
and Coverage C (Physical Damage to Property) combined single limit of
$1,000,000 per occurrence with $5,000,000 aggregate for the term of the policy.
10. Maintenance of Project Improvements. After completion of the Project, the CITY shall
maintain the Project Improvements in a safe and sanitary condition, in compliance with all state and
federal laws and regulations.
11. Indemnification.
(a) The CITY acknowledges and understands that Project Improvements will be constructed across
and adjacent to the tracks of the RAILROAD, and any persons or property engaged in construction or
maintenance activities will be in danger of injury or destruction due to causes incident to the operation,
maintenance, or improvement of the railway; and CITY agrees to undertake the Project subject to such
acknowledgement and understanding. The CITY acknowledges and understands that the Project
Improvements are subject to and may increase the dangers and hazards of the operation of the railway
line by the RAILROAD during periods of construction, repair, reconstruction or replacement work
thereon.
(b) To the fullest extent permitted by law and to the extent not prohibited by applicable statute, the
CITY agrees to indemnify and hold harmless the RAILROAD, its officials, agents, and employees and
others working on behalf of the RAILROAD from and against any and all loss, damage, claims,
demands, actions, causes of action, costs and expenses, including any and all outlay and expense
connected therewith, of every person or entity including, but not limited to, employees, officers, agents
and invitees of the parties hereto, or from loss of or damage to property of any kind or nature to
whomsoever belonging, including loss or use thereof, and including, but not limited to,property owned
by or in the care, custody and control of the parties hereto, and for any damages which may be
asserted, claimed or recovered against or from the RAILROAD its officials, agents, and employees and
others working on its behalf, by reason of personal injury, including bodily injury or death, which
arises out of or is occasioned by CITY's negligence, or that of its agents or contractors (1) in the
construction, maintenance, repair, renewal, alteration, change, relocation, use, operation, replacement
or removal of the Project Improvements or any structure incident thereto, or (2) in undertaking any
activity on or in the vicinity of the Licensed Property, or (3) in the use of or storage of materials on the
RAILROAD's right-of-way, or which arises out of or is occasioned by the CITY's negligent failure to
perform any act required by this Agreement.
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(c) The CITY agrees the use made of the RAILROAD's right-of-way permitted herein shall not
damage the railway or structures of the RAILROAD or the property of other persons, companies, or
corporations, their successors and assigns located upon the RAILROAD's right-of-way with the
RAILROAD's consent. The CITY further agrees that the use of the RAILROAD's right-of-way or the
storage of any materials thereon by CITY shall not be a menace to the safety of the RAILROAD's
operations or any other operations conducted on or in the vicinity of said right-of-way on the
RAILROAD's behalf or pursuant to permission granted for the same by the RAILROAD, or violate
any federal, state or municipal laws, ordinances or regulations. The CITY further agrees to release and
indemnify and save harmless RAILROAD, its officers, employees, agents, patrons, invitees, lessees
and assignees from all liability to the CITY, its officers, employees, agents or patrons, resulting from
rail operations at or near the Licensed Property. Notwithstanding the foregoing, nothing herein
contained is to be deemed or construed as an indemnification against the negligence of the
RAILROAD, its officers, employees or agents. At the election of the RAILROAD, the CITY, upon
receipt of notice to that effect, shall assume or join in the defense of any claim based upon allegations
purporting to bring said claim within the coverage of this section.
(d) Without limitation of the foregoing, if the CITY causes or permits the presence of any hazardous
material on the premises that results in contamination, the CITY shall promptly, at its sole expense,
take any and all necessary actions to return the premises to their condition existing prior to any such
contamination, but the CITY shall first provide notice to RAILROAD of any such action. With respect
to any pre-existing hazardous materials which are discovered on the Licensed Property by the City or
its contractor or agent during the course of constructing, maintaining, operating, repairing,
reconstructing or replacing the Project Improvements, the parties agree that they will each retain, and
do not hereby relinquish or waive, any defenses of causes of action which either of them may be
entitled to assert under the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
Sections 9601-9657, or under any other applicable law, state or federal.
(e) As used herein, "hazardous material" means any substance that is toxic, ignitable, reactive, or
corrosive and that is regulated by any local government, the State of Iowa, or the United States
Government. "Hazardous material" also includes any and all material or substances that are defined as
"hazardous waste"pursuant to state, federal or local governmental law.
12. Title to Premises. It is expressly understood that RAILROAD does not warrant title to the
premises and the CITY accepts the issuance of privileges contained herein subject to all lawful
outstanding existing liens and superior rights. The CITY agrees it shall not have or make any claims
against RAILROAD for damages on account of any deficiency of such title. In the event of a
deficiency in the title of the RAILROAD, resulting in a competing claim or claims against the CITY
for title to and/or possession of the Licensed Property, and or for removal of the Project Improvements,
the City shall, at its discretion, have as its remedy (1) the right to demand return of the consideration
paid to RAILROAD in advance, as provided in paragraph 1 hereof, or a proportionate part thereof in
the event of a partial deficiency or insufficiency of title; or (2) the right to condemn a permanent
easement interest in the Licensed Property.
13. Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of
Iowa, and any action brought by any party to this License Agreement to interpret or apply it shall be
brought in the Iowa District Court in and for Linn County.
14. Binding Effect. This Agreement shall be binding upon the successors or assigns of all parties and
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shall run with the lands shown or described in Exhibit A hereto.
15. Counterparts. This Agreement may be executed and delivered in two or three counterparts, each
of which so executed and delivered, shall be deemed to be an original.
16. Other. The CITY shall install as an integral part of the Project Improvements a 'gate and maze'
system at least 15 feet from the railway center line on both sides of RAILROAD's right-of-way.
IOWA NORTHERN RAILWAY COMPANY
By: //il ,r
aniel R. .bin, Its President
CITY OF V V G�,'TtrtA , IOWA
By:
1 t YYt ,Mayor
Attest:
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