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HomeMy WebLinkAboutINRC - Recreation Trail and Ditch Grading License Agreement - 2.3.2025RECREATIONAL TRAIL AND DITCH GRADING LICENSE AGREEMENT THIS RECREATIONAL TRAIL AND DITCH GRADING LICENSE AGREEMENT is made and entered into this 3rd day of February , 2025 (the "Effective Date"), by and between IOWA NORTHERN RAILWAY COMPANY, an Iowa corporation, (hereafter the "Company", "Railroad" or "IANR") and City of Waterloo, State of Iowa ("Licensee"). WHEREAS, the Licensee desires to construct a recreational trail and ditch grading (hereinafter called the "Facility") upon the Company's right-of-way in Black Hawk County, Iowa; WHEREAS, the parties agree that the Facility will be in close proximity to an active railroad right- of-way over which the Company conducts regular railroad operations which potentially occur at all hours of the day and night; and WHEREAS, the Facility shall be installed and thereafter maintained and used upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the premises, it is hereby mutually agreed by and between the parties hereto as follows: 1. In consideration of a preparation and handling fee of Seven Hundred Fifty Dollars ($750.00) and a one-time license fee of Seven Hundred Fifty Dollars ($750.00) in hand paid by the Licensee to the Railroad, the receipt of which is hereby acknowledged, and the faithful performance by the Licensee of the covenants herein contained, Licensee may for a term of three (3) months commencing as of the Notice to Proceed (as that term is defined in certain contract documents among the Company, Black Hawk County and Iowa Department of Transportation regarding Project HDP-8155(786)-71-07, construct and maintain a 10-foot recreational trail with an eight -foot -tall chain link fence, ditch grading, and intake installation upon the property of the Railroad at the location described generally as between Railroad Milepost 149.11 and Railroad Milepost 149.33 2. Licensee shall be responsible for the entire cost of the Facility including its construction and maintenance. 3. All construction plans will be subject to the prior review and approval by the Company. 4. Prior to entry on Railroad's property or use of the Facility, Licensee shall procure and maintain during the term of this Agreement a policy of general liability insurance, containing contractual liability coverage all as set forth in Exhibit A which is attached and incorporated herein by this reference. As evidence of said insurance, a certificate of insurance shall be furnished to and approved by the Railroad prior to entry on Railroad's property or construction or use of the Facility. 1 The insurance required herein shall not limit the liability assumed by the Licensee under this Agreement. Licensee shall comply with and satisfy all of the obligations and promises set forth in Exhibit B which is attached and incorporated herein by this reference. 5. This License and the permission herein issued to Licensee are temporary and non-exclusive and subject and subordinate to the rights of Railroad, its successors and assigns, its grantees, lessees and licensees to construct, reconstruct, operate, use, maintain, repair and renew on, beneath or above the property covered hereby, and structures, improvements or facilities of similar or different character as are now or in the future may be located on, beneath or above said properties. 6. Licensee shall, except in emergencies, give not less than seventy-two (72) hours written notice to Railroad of the day, hour and location that it proposes to undertake any construction or maintenance work concerning the Facility and in the event of an emergency shall notify Railroad as soon as possible. Licensee shall require each of its Licensees and subcontractors to observe and conform to the conditions and requirements specified herein; and for the purposes of the safety, protective and indemnification provisions hereof, such Licensees and subcontractors, their agents, servants and employees, and other persons on the Railroad property at the invitation of the Licensee or subcontractors, shall be deemed the agents or employees of the Licensee. 7. Licensee shall at no expense to Railroad obtain all permits and approvals required to exercise this License and Licensee shall install, maintain and operate its facilities in accordance with all requirements of lawful public authority. Licensee shall be responsible for any taxes, assessments and changes made against the Pipeline or other of Licensee's facilities on Railroad's property or the operation of any of them. 8. The initial cost and expense of installation of the Facility shall be borne by the Licensee. 9. If, in the opinion of the authorized representative of Railroad, the work to be done by the Licensee pursuant to this Agreement will make necessary or desirable any change in the Railroad's facilities, or those of the Railroad's tenants or licensees, on the Railroad's property, the Railroad shall have the right, but not the duty, to make such changes, the expense thereof to be borne by the Licensee. Railroad shall have the right, but not the duty, to furnish flagging or other protection or to perform work to support its tracks or otherwise protect its property or facilities at any time, at Licensee's sole risk and expense. 10. Licensee shall remove and keep removed as a result of the roadway Facility all brush, weeds, trees and other plant growth which interfere with view of approaching trains and rail vehicles on the tracks of the Company. 11. Licensee shall not do or permit to be done in the use of the Facility any act that will in any manner interfere with, interrupt or endanger the operation of the trains, engines, rail cars or other railroad equipment. 2 12. The Facility shall be for the exclusive use of the Licensee, its agents, employees, lessees and invitees, solely as a recreational trail, and the Licensee shall prevent any other use of the Facility. 13. Licensee and other persons authorized to use the Facility shall at all times use of the Facility, it will comply with all applicable laws, including, but not limited to, any laws, standards, regulations, or permit requirements relating to environmental pollution or contamination or to occupational health and safety; and Licensee agrees to indemnify and hold harmless the Company and the Railroad from any and all claims, demands, lawsuit, or liability for loss, fines, damage, injury, and death and all expenses and costs, including attorneys' fees, resulting from or arising out of the construction, maintenance, or use of the Facility, including any discharge or emission therefrom or for the violation of any law, standard, regulation, or permit requirement relating to environmental pollution of contamination or to occupational health and safety. 14. IT IS UNDERSTOOD BY THE LICENSEE THAT THE FACILITY IS SUBJECT TO AND MAY INCREASE THE DANGERS AND HAZARDS OF THE OPERATION OF THE RAILROAD OF THE COMPANY. Therefore, the Licensee accepts the privilege granted hereby with full recognition of the risk of loss of life, personal injury and property loss or damage which may be caused by rail operations at or in the vicinity of the Facility and by the construction, use, maintenance or removal of the Facility by the Licensee or others. Therefore, the Licensee assumes and agrees to pay for all loss of or damage to any property whatsoever, and injury to or death of any person or persons whomsoever, including all costs and expenses incident thereto, however arising from or in connection with the existence, construction, maintenance, repair, renewal, reconstruction, use or removal of said Facility, or any defect therein or failure thereof, or the failure of the Licensee, its agents, employees, lessees or invitees to abide by or comply with any of the terms and conditions of this Agreement, required to be kept or performed by them or any of them; and the Licensee forever indemnifies the Company against and agrees to save the Company harmless from any and all claims, demands, lawsuits or liability for any such loss, damage, injury and death and costs and expenses including attorneys' fees incident thereto, even though the operations of the railroad may have caused or contributed thereto. Notice to or knowledge by the" Company of any act or omission by the Licensee, and the acquiescence by the Company in or to such act or omission, shall neither be considered to relieve the Licensee of any obligation assumed by it under this paragraph nor be considered to be a waiver or release by the Company of any rights granted to it under this paragraph. 15. The Company shall have the right to use, occupy and enjoy its tracks, property and right-of- way for such purposes, in such manner and at such time as it shall desire, the same as if this Agreement had not been executed by it. The Company shall have the right, without any liability for damages to the Licensee therefore, to terminate this Agreement at anytime by giving the Licensee not less than thirty (30) days written notice of such termination. Upon expiration of the time provided by such notice, Company, without further notice, act or demand, may thereupon remove the Facility and approaches. 16. Licensee agrees at any time, or from time to time, at its own risk and expense, upon request of the authorized representative of the Railroad, to make such change or changes as may be necessary and reasonable in the opinion of said representative to accommodate any change or improvement which Railroad may desire to make in or upon its property. In case Licensee shall fail within thirty (30) days after notice from Railroad to make such change or changes, Railroad 3 shall have the right, but not the duty, to make such change or changes, or remove Licensee's facilities from said property at the risk and expense of the Licensee. 17. In the event Railroad elects to renew, replace, repair or alter any tracks or other facilities or to construct new facilities or to make other use of the property covered by this License, and in connection therewith requires the removal of the Facility placed by Licensee on Railroad's property or should the need renewal or repair, the Licensee shall, within thirty (30) days of receipt of notice, arrange for such removal, renewal or repair at Licensee's risk and expense. In the event removal is required, the Facility shall be relocated to such location on Railroad's property as is designated by Railroad, provided that Railroad's authorized representative determines that a location is reasonably available. Renewal or repair, if requested, shall be to such condition as is designated by Railroad's authorized representative. If Licensee fails to comply with the foregoing, Railroad shall have the right, but not the duty, to remove, renew or repair the Facility at the sole risk and expense of Licensee. 18. Cost and expense for work, if any, performed by the Railroad pursuant to this Agreement shall consist of the direct costs of labor and material plus Railroad's standard additives in effect at the time the work is performed. All payments required of Licensee under this Agreement shall be made promptly upon presentation of a bill, and in no event later than twenty (20) days after bills are submitted by the Company to Licensee. For all bills unpaid after twenty (20) days, interest shall accrue at an annualized rate of 10% per annum. 19. It is expressly understood Railroad does not warrant title to the premises and Licensee accepts the issuance of privileges contained herein subject to all lawful outstanding existing liens and superior rights. Licensee agrees it shall not have nor make any claims against Railroad for damages on account of any deficiency of such title and the sole remedy of Licensee shall be the right to return of the consideration paid in advance, provided for herein, or a proportionate part thereof in the event of a partial deficiency or insufficiency of title. Licensee further agrees to indemnify and hold harmless the Railroad and to assume all risk, responsibility and liability including any expense, reasonable attorneys' fees and costs incurred or sustained by Railroad arising from, growing out of, or in any manner or degree directly or indirectly attributable to or resulting from any deficiency or insufficiency of its title affecting the right of the Railroad to issue this License. 20. The permission granted by the Company shall neither be, or be deemed or construed to be, a grant of land, nor shall it constitute ownership by Licensee of the Facility or that portion of the Company's right-of-way upon which said crossing is located. 21. It is specifically understood by Licensee that cables and other electric and/or fiber optic transmission lines, may, now or in the future, be on, about, along, or under the Company's property and Licensee agrees and warrants that under no circumstances will Licensee dig in or disturb the surface of the Company's property, without prior approval from the Company. 22. Nothing in this Agreement shall be construed to place any responsibility on Railroad for the quality of the construction, maintenance or other work performed on behalf of Licensee hereunder or for the condition of any of Licensee's facilities. Any approval given or supervision exercised by Railroad hereunder, or failure of Railroad to object to any work done, material used or method of construction, reconstruction or maintenance, shall not be construed to relieve Licensee of its 4 obligations under this Agreement. 23. It is expressly made a condition of this License that if Licensee or its successors or assigns shall abandon the Facility, or any portion of thereof, then and in that event all the rights herein granted shall cease and terminate with respect to that portion of the Facility so abandoned, and title to such abandoned portion shall no longer be burdened by this License; it being agreed between the Company and Licensee that nonuse of the Facility for any period equal to or greater than one (1) year shall be deemed an abandonment of thereof, or such portion thereof as is not so used. In the event of the abandonment of all or a portion of the Facility, either by nonuse or otherwise, Licensee shall upon the request of the Company deliver to the Company a recordable instrument evidencing that the title to the Facility property so abandoned is free and clear of the burden of this License and is free and clear of liens, encumbrances, clouds upon or defects in the title to said Facility Property created or permitted to be created by Licensee. 24. It is expressly understood and agreed by the parties hereto that in the event this License on the terms herein provided would be contrary to any law, regulation or order of governmental authority, or contrary to any mortgage or indenture to which Railroad is a party, that this Agreement shall be cancelled and annulled and neither party hereto shall have any claim whatsoever against the other by reason thereof. 25. This Agreement shall be binding on the successors and assigns of the parties hereto, but no assignment hereof by the Licensee, its successors, legal representatives or assigns, shall be binding upon the Railroad without its written consent in each instance. IN WITNESS WHEREOF, the parties have caused these presents to be executed in duplicate, the day and year first above written. IOWA NORTHERN RAILWAY COMPANY BY: William Magee, Its President and Chief Executive Officer City of Waterloo, Iowa ("LICENSEE") BY: ateidin Quentin I tart Mayor , Its 5 EXHIBIT A INSURANCE Before the contract is awarded, Licensee shall submit to the Company a certificate of insurance evidencing the coverage. The certificate shall identify the insurance company firm name and address, Licensee firm name, policy period, type of policy, limits of coverage, and scope of work covered (including project number). To the fullest extent permitted by law, the Licensee shall indemnify and hold harmless the Company and the its affiliates, and their employees, officers, agents and authorized representatives from and against any and all liability, claims, damages, losses and expenses, including but not limited to punitive damages and attorneys' fees, arising from the injury to or death of any person or persons, or loss of or damage to any property whatsoever, while on or about the IANR's premises or arising out of or resulting from performance of the project work or services provided by Licensee or a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. The Licensee shall indemnify and hold harmless the IANR against any assertion of claims for mechanics' liens by subcontractors or material Licensees, and against any assertion of security interests for goods or materials which are placed or installed upon the IANR's premises. A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on ISO occurrence form CG 00 01 12 04 or a substitute form providing equivalent coverage and include coverage for, but not limited to, the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage as respects obligations under this specification may be included on the policy with regard to the work being performed under this agreement. 6 B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: • Licensee's statutory liability under the worker's compensation Laws of the state(s) in which the work is to be performed. If optional under State Law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. D. Railroad Protective Liability Insurance. This insurance shall name only the Company as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 1093) and on ISO Form no. CG00351093 • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railway prior to performing any work or services under this Easement Agreement. Licensee shall use the website listed below to acquire Railroad train movement information for the purpose of obtaining Railroad Protective Liability Insurance: http://safetydata.fra.dot.gov/OfficeofSafety/PublicSite/Crossing/Crossing.aspx The US DOT Crossing Inventory Number will be located in the project plans. Zero trains per day will be displayed on the crossing inventory report for locations with grade separated crossings or at -grade crossings when there is less than one train per day. In these situations generating a map to find alternative crossing locations may be used to provide the number of trains per day and speed nearest the project location. E. Other Requirements. Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Licensee is not allowed to self -insure without the prior written consent of IANR. If granted by IANR, any deductible, self -insured retention or other financial responsibility for claims shall be covered directly by Licensee in lieu of insurance. Any and all IANR liabilities that would otherwise, in accordance with the 7 provisions of this Agreement be covered by Licensee's insurance, will be covered as if Licensee elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing work, Licensee shall furnish to IANR an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance carrier issuing such policy(ies) to notify IANR in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from IANR, a certified duplicate original of any required policy shall be furnished. If any portion of the contract is to be subcontracted by Licensee, Licensee shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming IANR as an additional insured, and shall require that the subcontractor shall release, defend and indemnify IANR to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify IANR herein. Failure to provide evidence as required by this section shall entitle, but not require, IANR to remove Licensee from or deny entry of Licensee to IANR property immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Licensee's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee including, without limitation, liability under the indemnity provisions of this Easement Agreement. Damages recoverable by IANR shall not be limited by the amount of the required insurance coverage. 8 EXHIBIT B 9 SP-XXXXXXX (New) IOWA DOT SPECIAL PROVISIONS FOR WORK ON RAILROAD RIGHT-OF-WAY (IOWA NORTHERN RAILWAY) Black Hawk County H D P-8155(786)-71-07 THE STANDARD SPECIFICATIONS, SERIES 2023, ARE AMENDED BY THE FOLLOWING MODIFICATIONS AND ADDITIONS. THESE ARE SPECIAL PROVISIONS AND THEY SHALL PREVAIL OVER THOSE PUBLISHED IN THE STANDARD SPECIFICATIONS. XXXXXX.01 DESCRIPTION This specification describes the requirements when work is within the right-of-way (ROW) or properties of the Iowa Northern Railway Company (IANR) and adjacent to tracks, wire lines, and other facilities. This specification describes the coordination with IANR when work by the Contractor will be performed upon, over, or under the IANR ROW, or may impact current or future IANR operations. The Contractor shall coordinate with the IANR while performing work on IANR ROW. The IANR representative will be the person or persons identified by the IANR General Manager, William Magee, 1330 Sheffield Avenue, Waterloo, IA 50702 (telephone number: 319.232.9702 and email address: wmagee@iowanorthern.com) to handle specific tasks related to the project. Prior to advertising the project for letting, the Linn County Conservation Board (County) will negotiate and obtain an agreement with the IANR for the work on IANR ROW. The Contractor is not required to enter into an agreement with the IANR except for the sole purpose of a temporary crossing (Article SP- 156226.20) that is not included in the contract documents. The Contractor shall provide track protection for all equipment operating within 25 feet from nearest rail. XXXXXX.02 REQUESTS FOR INFORMATION. All requests for information involving work within any IANR ROW shall be in accordance with the procedures listed in the contract documents. All requests shall be submitted to the Engineer. The Engineer will forward the request to the IANR as necessary. XXXXXX.03 CONSTRUCTION SCHEDULE NOTICE. A construction schedule, including the proposed temporary horizontal and vertical clearances and construction sequence for all work to be performed, shall be provided to the Engineer for submittal to the IANR prior to commencement of work. When construction activities are on or about railroad property this schedule shall also include the anticipated dates when the IANR facilities may be impacted by construction activities. SP-XXXXXX. Page 2 of 10 XXXXXX.04 IANR REPRESENTATIVES. IANR representatives will be provided at the expense of the Contractor to protect IANR facilities, property, and movements of its trains or engines. In general, IANR will furnish such personnel or other protective services as follows: • When any part of any equipment is standing or being operated within 25 feet, measured horizontally, from centerline of any track on which trains may operate, or when any object is off the ground and any dimension thereof could extend inside the 25-foot limit, or when any erection or construction activities are in progress within such limits, regardless of elevation above or below track. • For any excavation below elevation of track subgrade if, in the opinion of IANR, track or other IANR facilities may be subject to settlement or movement. • During any clearing, grubbing, excavation, or grading in proximity to IANR facilities, which, in the opinion of IANR, may endanger IANR facilities or operations. • During the Contractor's operations when, in the opinion of IANR, IANR facilities, including, but not limited to, tracks, buildings, signals, wire lines, or pipelines, may be endangered. • The Contractor shall arrange with the IANR to provide the adequate number of flag persons to accomplish the work. XXXXXX.05 INSURANCE. Before the contract is awarded, Contractor shall submit to the Department a certificate of insurance evidencing the coverage. The certificate shall identify the insurance company firm name and address, Contractor firm name, policy period, type of policy, limits of coverage, and scope of work covered (including project number). To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the IANR and the its affiliates, and their employees, officers, agents and authorized representatives from and against any and all liability, claims, damages, losses and expenses, including but not limited to punitive damages and attorneys' fees, arising from the injury to or death of any person or persons, or loss of or damage to any property whatsoever, while on or about the IANR's premises or arising out of or resulting from performance of the project work or services provided by contractor or a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. The Contractor shall indemnify and hold harmless the IANR against any assertion of claims for mechanics' liens by subcontractors or material contractors, and against any assertion of security interests for goods or materials which are placed or installed upon the IANR's premises. A. Commercial General Liability Insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $5,000,000 each occurrence and an aggregate limit of at least $10,000,000. Coverage must be purchased on ISO occurrence form CG 00 01 12 04 or a substitute form providing equivalent coverage and include coverage for, but not limited to, the following: • Bodily Injury and Property Damage • Personal Injury and Advertising Injury • Fire legal liability • Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: • The employee and workers compensation related exclusions in the above policy shall not apply with respect to claims related to railroad employees. SP-XXXXXX. Page 3 of 10 • The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. • Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage as respects obligations under this specification may be included on the policy with regard to the work being performed under this agreement. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $5,000,000 per occurrence, and include coverage for, but not limited to the following: • Bodily injury and property damage • Any and all vehicles owned, used or hired Workers Compensation and Employers Liability Insurance. This insurance shall include coverage for, but not limited to: • Contractor's statutory liability under the worker's compensation Laws of the state(s) in which the work is to be performed. If optional under State Law, the insurance must cover all employees anyway. • Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. Railroad Protective Liability Insurance. This insurance shall name only the Railway as the Insured with coverage of at least $5,000,000 per occurrence and $10,000,000 in the aggregate. The policy shall be issued on a standard ISO form CG 00 35 10 93 and include the following: • Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31 1093) and on ISO Form no. CG00351093 • Endorsed to include the Limited Seepage and Pollution Endorsement. • Endorsed to include Evacuation Expense Coverage Endorsement. • No other endorsements restricting coverage may be added. • The original policy must be provided to the Railway prior to performing any work or services under this Easement Agreement. Contractor shall use the website listed below to acquire Railroad train movement information for the purpose of obtaining Railroad Protective Liability Insurance: http://safetydata.fra.dot.gov/OfficeofSafety/PublicSite/Crossing/Crossing.aspx The US DOT Crossing Inventory Number will be located in the project plans. Zero trains per day will be displayed on the crossing inventory report for locations with grade separated crossings or at -grade crossings when there is less than one train per day. In these situations generating a map to find alternative crossing locations may be used to provide the number of trains per day and speed nearest the project location. Other Requirements. Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. SP-XXXXXX. Page 4 of 10 Contractor is not allowed to self -insure without the prior written consent of IANR. If granted by IANR, any deductible, self -insured retention or other financial responsibility for claims shall be covered directly by Contractor in lieu of insurance. Any and all IANR liabilities that would otherwise, in accordance with the provisions of this Agreement be covered by Contractor's insurance, will be covered as if Contractor elected not to include a deductible, self -insured retention or other financial responsibility for claims. Prior to commencing work, Contractor shall furnish to IANR an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance IANR(ies) issuing such policy(ies) to notify IANR in writing at least 30 days prior to any cancellation, non -renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. Upon request from IANR, a certified duplicate original of any required policy shall be furnished. If any portion of the contract is to be subcontracted by Contractor, Contractor shall require that the subcontractor shall provide and maintain insurance coverages as set forth herein, naming IANR as an additional insured, and shall require that the subcontractor shall release, defend and indemnify IANR to the same extent and under the same terms and conditions as Contractor is required to release, defend and indemnify IANR herein. Failure to provide evidence as required by this section shall entitle, but not require, IANR to remove contractor from or deny entry of contractor to IANR property immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Contractor's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Contractor shall not be deemed to release or diminish the liability of Contractor including, without limitation, liability under the indemnity provisions of this Easement Agreement. Damages recoverable by IANR shall not be limited by the amount of the required insurance coverage. XXXXXX.06 ASSIGNMENT, SUBCONTRACTING, AND INSURANCE ENDORSEMENTS. The Contractor shall not assign or subcontract the provisions of this specification, or any interest therein, without the written consent of the Engineer. The Contractor shall be responsible for the acts and omissions of all subcontractors. Before the Contractor commences any work, they shall, except to the extent prohibited by law; (1) require each subcontractor to include the Contractor as "Additional Insured" in the subcontractor's Commercial General Liability policy and Business Automobile policies with respect to all liabilities arising out of the subcontractor's performance of work on behalf of the Contractor by endorsing these policies with ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage; (2) require each subcontractor to endorse their Commercial General Liability Policy with "Contractual Liability Railroads" ISO Form CG 24 17 10 01 (or a substitute form providing equivalent coverage) for the job site; and (3) require each subcontractor to endorse their Business Automobile Policy with "Coverage For Certain Operations In Connection With Railroads" ISO Form CA 20 70 10 01 (or a substitute form providing equivalent coverage) for the job site. XXXXXX.07 ADDITIONAL SAFETY REQUIREMENTS. The Contractor shall require its employees to be suitably dressed to perform their duties safely. The Contractor shall require workers to wear personal protective equipment as specified by IANR rules and regulations. Protective equipment shall include, but not be limited to the following: protective headgear meeting ANSI 289.1; eye protection meeting ANSI 287.1, however additional eye protection shall be provided to meet specific job situations such as welding, grinding, burning, etc.; and hearing protection which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Only waist length shirts with sleeves and trousers covering the entire leg shall be worn. Flare -legged trouser bottoms shall be tied to prevent catching. SP- XXXXXX. Page 5 of 10 Heavy equipment operating within IANR ROW shall be equipped with audible back-up warning devices. If in the opinion of the IANR the Contractor's equipment is unsafe for use on the IANR's ROW, the Contractor shall remove such equipment from the IANR ROW. The Contractor shall promptly notify the IANR of any U.S. OSHA reportable injuries occurring to any employee that arises during the work performed on the work site within IANR ROW. If at any time the Engineer or the IANR are of the opinion that any work of the Contractor is being or is about to be done or prosecuted without due regard and precaution for safety and security, the Engineer may suspend the work until suitable, adequate, and proper protective measures are adopted and provided. XX000(X.08 SAFETY MEASURES -PROTECTION OF OPERATIONS. The Contractor shall perform work in a safe manner and in conformity with the following standards: A. Explosives. The Contractor shall not discharge any explosives on or in the vicinity of the IANR's property without the prior consent of the IANR, which shall not be given if, in the sole discretion of the IANR, such discharge would be dangerous or would interfere with the IANR's property or facilities. For the purposes hereof, the "vicinity of the IANR's property' shall be deemed to be any place on the IANR's property or in such close proximity to the IANR's property that the discharge of explosives could cause injury to the IANR's employees or other persons, or cause damage to or interference with the facilities or operations on the IANR's property. The IANR reserves the right to impose such conditions, restrictions, or limitations on the transportation, handling, storage, security, and use of explosives as the IANR, in the IANR's sole discretion, may deem to be necessary, desirable or appropriate. In addition to any conditions, restrictions, or limitations as may be specifically imposed: 1. The Contractor shall provide no less than 48 hours written notice, excluding weekends and holidays, before discharging any explosives. 2. Any explosives loaded in holes, placed or otherwise readied for discharge, they shall be discharged the same day during daylight hours, and at mutually acceptable times. 3. The Contractor, at its own expense, shall take all precautionary measures and construct all temporary shelters necessary to guard against danger of damage, destruction, or interference arising out of or connected with any blasting or any transportation, handling, storage, security, or use of explosives. B. Obstructions to View. Except as otherwise provided herein, the Contractor shall not cause or permit the view along the tracks of the IANR to be obstructed, nor place any combustible material on the crossing area, nor erect any structures thereon except as allowed by the contract documents. C. Excavation. The Contractor shall not excavate from existing slopes nor construct new slopes which are excessive and may create hazards of slides or falling rock, impair, or endanger the clearance between existing or new slopes and the tracks of the IANR. The Contractor shall not perform any work that may disturb the stability of any area that may adversely affect the IANR's tracks or facilities. The Contractor, at its own expense, shall install and maintain adequate shoring and cribbing for all excavation or trenching performed by them in connection with construction, maintenance, or other work. The shoring and cribbing shall be constructed and maintained with materials and in a manner approved by the IANR to withstand all stresses likely to be encountered, including any stresses resulting from vibrations caused by the IANR's operations in the vicinity. SP- XXXXXX. Page 6 of 10 D. Drainage. The Contractor, at its expense, shall provide and maintain suitable facilities for draining the highway and its appurtenances, and shall not suffer or permit drainage water to flow or collect upon property of the IANR so as to adversely affect any of the IANR's operations, equipment or any third parties with permitted facilities on the IANR's ROW. The Contractor, at its own expense, shall provide adequate passageway for the waters of any streams, bodies of water, and drainage facilities (either natural or artificial, and including water from the IANR's culverts and drainage facilities), so that said waters may not, because of any facilities or work of the Contractor, be impeded, obstructed, diverted, or caused to back up, overflow or damage the property of the IANR or any part thereof, or property of others. The Contractor shall not obstruct or interfere with existing ditches or drainage facilities. E. F. Clearances. The Contractor shall provide a minimum vertical clearance of 21.5 feet above top of rails and a minimum lateral clearance of 12.0 feet from centerline of track nearest temporary construction falsework. Proposed changes to the specified minimum clearances shall be submitted to IANR, through the Engineer, at least 30 calendar days in advance of the work. No work shall commence until the Engineer receives concurrence, in writing, from IANR that approval is given and that arrangements have been made for flagging service, as may be necessary. The IANR will have two weeks to respond to the request. Demolition of Existing Structures. The Contractor shall submit demolition plans to the Engineer for review and approval. The Engineer will forward to the IANR as identified in the project agreement. Demolition shall not be undertaken until the Contractor has received the Engineer's written approval of such demolition plans. All such reviews and approvals or rejections will be completed by the Engineer within 45 calendar days of receipt from the Contractor. XXXXXX.09 WALKWAYS. Along the outer side of each exterior track of multiple operated track, and on each side of single operated track, an unobstructed continuous space suitable for IANR's use in walking along trains, extending to a line not less than 12 feet from centerline of track, shall be maintained. Any temporary impediments to walkways and track drainage encroachments or obstructions allowed during work hours while IANR's flagging service is provided shall be removed before the close of each work day. Walkways with railings shall be constructed by Contractor over open excavations when in close proximity of track, and railings shall not be closer than 8.5 feet horizontally from center line of tangent track or 9.5 feet horizontally from centerline of curved track. XXXXXX.10 EXCAVATIONS IN CLOSE PROXIMITY TO IANR FACILITIES. The Contractor shall take special precaution in connection with excavating and shoring. Excavations for construction of footings, piers, columns, walls, or other facilities that require shoring shall comply with the following requirements: OSHA, AREMA, and IANR Guidelines. The Contractor shall contact IANR at least 48 hours prior to commencing work during normal business hours to determine location of fiber optics. If a telecommunications system is buried anywhere on or near IANR property, the Contractor shall coordinate with IANR and the telecommunication company to arrange for relocation or other protection of the system prior to beginning any work on or near IANR property. XXXXXX.11 NO INTERFERENCE WITH IANR'S OPERATION. The Contractor shall not interfere with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of the IANR its lessees, licensees, or others, unless specifically permitted by this specification, or specifically authorized in advance by the IANR. When not in use, the Contractor's machinery and materials shall be kept at least 50 feet from the centerline of IANR's nearest active track, SP- XXXXXX. Page 7 of 10 and there shall be no crossings of IANR's tracks except at existing open public crossings or as provided by agreement. XXXXXX.12 TRAFFIC CONTROL. The Contractor's operations that control traffic across or around IANR facilities shall be coordinated with and approved by the IANR. XXXXXX.13 INDEMNITY. As used in this Article, "IANR" includes other railroad companies using the IANR's property at or near the location of the Contractor's work and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from the following: • Injury to or death of persons whomsoever (including the IANR's officers, agents, and employees, the Contractor's officers, agents, and employees, as well as any other person); and • Damage to or loss or destruction of property whatsoever (including Contractor property, damage to the roadbed, tracks, equipment, or other property of the IANR, or property in its care or custody). The Contractor shall indemnify, hold harmless, and defend to the extent allowed by law the IANR from any loss which is due to or arises from any cause and is associated in whole or in part with the work, a breach of the contract or the failure to observe the health and safety provisions herein, or any activity or omission arising out of performance or nonperformance; except when caused by the sole negligence of the IANR, or except to the extent caused by the gross negligence or willful misconduct of the IANR. XX0XXX.14 MAINTENANCE OF IANR FACILITIES. The Contractor shall maintain all ditches and drainage structures free of silt or other obstructions which may result from its operations, promptly repair eroded areas within IANR's ROW, and repair any other damage to IANR property, or its tenants; at no additional cost to the IANR. XXXXXX.15 COMMUNICATIONS AND SIGNAL LINES. If required, IANR will rearrange its communications and signal lines, grade crossing warning devices, train signals and tracks, and facilities that are in use and maintained by IANR's forces in connection with its operation at the expense of the Contracting Authority. This work will be performed by the IANR and it is not a part of the contract. XXXXXX.16 FIBER OPTIC CABLE SYSTEMS. Fiber optic cable systems may be buried on the IANR's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. The Contractor shall contact the IANR to determine if fiber optic cable is buried anywhere on the IANR's Crossing Area to be used by the Contractor. If ii is, the Contractor shall telephone the telecommunications company involved, arrange for a cable locator, and make arrangements for relocation or other protection of the fiber optic cable prior to beginning any work on the IANR's Crossing Area. In addition to the liability terms elsewhere in this specification, the Contractor shall indemnify and hold harmless the IANR against and from all cost, liability, and expense whatsoever (including, without limitation, attorney's fees, court costs, and expenses) arising out of or in any way contributed to by any act or omission of the Contractor, agents, or employees, that causes or contributes to (1) any damage to or destruction of any telecommunications system on IANR's property, and (2) any injury to or death of any person employed by or on behalf of any telecommunications company, its contractor, agents, or employees, on IANR's property in the crossing area. The Contractor shall not have or seek recourse against IANR for any claim or cause of action for alleged loss of profits, revenue, loss of service, or other consequential damage to a telecommunication company using IANR's property or a customer or user of services of the fiber optic cable on IANR's property. SP- XXXXXX. Page 8 of 10 XXXXXX.17 COOPERATION. The IANR will cooperate with the Contractor so that work may be conducted in an efficient manner, and will cooperate with the Contractor in enabling use of IANR's ROW in performing the work. XXXXXX.18 WAIVER OF BREACH. The waiver by the IANR of the breach of any condition, covenant, or specification herein contained to be kept, observed and performed by the Contractor shall in no way impair the right of the IANR to avail itself of any subsequent breach thereof. XXXXXX.19 RAILROAD FLAGGING. A. Flagging and Notification. The Contractor shall notify the IANR and Engineer at least 15 working days in advance of the commencement of work and at least ten working days in advance of proposed performance of any work by the Contractor in which any person or equipment will be within 25 feet of any track, or near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within 25 feet of any track. This notice shall include the following: • Project Number • Contractor's name • Date flagging is needed • Location of flagging services to be provided • Duration of flagging No work shall be performed, and no person, equipment, machinery, tools, materials, vehicles, or things shall be located, operated, placed, or stored within 25 feet of any of IANR's track at any time, for any reason, unless and until a railroad flagger is provided to watch for trains. B. Upon receipt of such 10 day notice, the IANR will determine and inform the Contractor whether a flagger need be present and whether the Contractor need implement any special protective or safety measures. If flagging or other special protective or safety measures are performed by the IANR, such services will be provided at Contractor's expense with the understanding that if the IANR provides any flagging or other services, the Contractor shall not be relieved of any of its responsibilities or liabilities set forth herein. The Contractor shall pay the IANR all charges connected with such services within 30 calendar days after presentation of a bill. Work performed without proper flagging services, when required, will be subject to a $5,000 per day price adjustment. The Contractor shall provide the IANR a minimum of 2 working days notice prior to the completion of work for which the flagging services were requested. Flagger Rate of Pay. (a) Company 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 Contractor, who shall promptly pay to Iowa Northern Railway Company 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 SP- XXXXXX. Page 9 of 10 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. The current rates for a flagger are: 1) $1,000/day for an 8 hour day. 2) Overtime rate shall be $187.50/hour after 8 hours worked (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 Contractor shall pay on the basis of the new rates and charges. (d) Reimbursement to Iowa Northern Railway Company 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 10 days in advance of commencing work upon the Licensed Property. Reimbursement to the IANR. Reimbursement to the IANR, by the Contractor, shall cover the full 8 hour day during which any flagger is furnished, unless they can be assigned to other IANR work during a portion of such day. Reimbursement will not be required for the portion of the day during which the flagger is engaged in other IANR work. Reimbursement will also be required for any day not actually worked by said flagger following assignment to work on the project for which the IANR is required to pay the flagger and which could not reasonably be avoided by the IANR by assignment of such flagger to other work, even though the Contractor may not be working during such time. In the event the Contractor fails to reimburse the IANR, the Contracting Authority will reimburse the IANR within 30 calendar days of the Contractor defaulting on the payment (default is defined as non-payment within 30 calendar days of final billing by the IANR to the Contractor). Failure of the Contractor to reimburse the IANR may result in a reduction or suspension of the Contractors bidding qualifications according to Article 1102.03 of the Standard Specifications. Documentation and Reimbursement to the Contractor. The Contractor shall initially pay IANR invoices for all flagging costs in conjunction with railroad flaggers when any of the conditions identified in Article SP-XXXXXX.04, warrant a flagger. The Contracting Authority will reimburse the Contractor for any daily cost that exceeds $1,000.00 per day for the cost of flagger services provided by the IANR. The Contracting Authority will reimburse the Contractor 100% of the total cost of flagger services, as deemed necessary by the IANR, that does not meet any of the conditions identified in Article SP-XXXXXX.04, unless the flagger's presence on the project was a result of the Contractor's communication, or lack of communication, with the IANR. The Contracting Authority will reimburse the Contractor following completion of all work necessitating flagging operations by the IANR and receipt of documentation verifying the IANR invoices have been paid. For each day that railroad flaggers have been provided, the Contractor shall document daily the conditions on the project site that warrant the flagger. The Contractor shall submit the daily records to the Engineer each week. The Engineer will review the daily logs and promptly notify the Contractor if any information in the daily log is believed to be incorrect. The Contractor shall forward copies of the invoices received from the IANR for flaggers and a summary of the flagging costs incurred that exceed the Contactors' requirements described in Article SP-XXXXXX.04, to the Engineer with a request for payment for the additional railroad flagger costs. The Engineer will review the Contractor's daily logs against the IANR's invoice and make payment for the eligible costs in accordance with Article 1109.03, of the Standard Specifications. SP- XXXXXX. Page 10 of 10 The Contractor shall be responsible to the IANR for all flagging costs. Flagging costs for subcontracted work shall be the responsibility of the Contractor. Reimbursement from subcontractors to the Contractor shall be the sole responsibility of the Contractor. The Contractor shall forward, to the Engineer, copies of payments made to the IANR for flagging costs. XXXXXX.20 TEMPORARY CROSSINGS. At other than established public road crossings, the Contractor shall not move any equipment or materials across the IANR's tracks until written permission has been obtained from the IANR. If the Contractor requires a temporary railroad crossing the Contractor shall arrange for the crossing installation at a mutually acceptable location at the Contractor's expense to include all IANR costs of installation, maintenance, removal, and track restoration. The temporary crossing shall be gated and locked at all times when not required for use by the Contractor. Flagging will always be required during use of a temporary crossing. The billing, Contractor payment provisions, and final Contractor payment requirements for crossing costs except flagging are to be covered as agreed to in a separate agreement between the Contractor and IANR. Prior notice of need for a temporary crossing needs to allow for IANR site review, cost estimating, securing material, and work crew scheduling and will vary. The Contractor should contact the IANR prior to making a bid when a temporary crossing is required. XXXXXX.21 LIMITATION OF RIGHTS GRANTED. The Contract, any Temporary Easement, and Permanent Easement are all subject to the prior and continuing right and obligation of the IANR to use and maintain its property, not inconsistent with highway purposes, including the right and power of the IANR to construct, maintain, repair, renew, use, operate, change, modify, or relocate IANR tracks, roadways, signal, communication, fiber optics, or other wirelines, be freely done at any time or times by the IANR, not inconsistent with highway purposes and at IANR's sole cost and expense. The Contract, Temporary Construction Easement, and Permanent Easement, whether recorded or unrecorded, are subject to all outstanding rights (including those in favor of licensees and lessees of the IANR's property, and others) and the right of the IANR to renew and extend the same, and is made without covenant of title or for quiet enjoyment. XXXXXX.22 MECHANICS' LIENS. The Contractor shall not permit or suffer any mechanic's or material supplier's liens of any kind or nature to be enforced against any property of the IANR for any work performed. The Contractor shall indemnify and hold harmless the IANR from and against any liens, claims, demands, costs, or expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. It is understood that this specification may be recorded in the county in which the work is to be performed and such recording shall serve as public notice that no Contractor, subcontractor, or material supplier shall file any notice of a mechanic's or material supplier's lien or permit or suffer any mechanic's lien or material supplier's lien on the property of the IANR to the extent permitted by law. XXXXXX.23 METHOD OF MEASUREMENT AND BASIS OF PAYMENT. Railroad Protective Liability Insurance for Iowa Northern Railway Company shall be paid for as a Lump Sum bid item. The Contractor will be paid the Lump Sum bid item price within 30 calendar days after receipt of a signed contract, provided that all necessary certificates of insurance have been submitted to the Department per Article SP- XXXXXX.05.