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HomeMy WebLinkAboutHydrite Chemical - Easemenet Agreement-12/16/2013CITY OF WATERLOO Council Communication City Council Meeting: December 16, 2013 Prepared: December 9, 2013 Dept. Head Signature: Eric Thorson PE, City Engineer # of Attachments: SUBJECT: EASEMENT AGREEMENT HYDRITE CHEMICAL CO. Submitted by: amie Knutson P.E. Associate En ineer Recommended City Council Action: Staff has reviewed this agreement and recommends Council approve this document and authorizes Mayor to sign and enter into said agreement. Summary Statement The Easement Premises is intended for use as a railroad spur and railroad crossing. The Easement Premises shall not be used for any other purpose without the prior written consent of Grantor. It is the intention of the parties that Grantee shall assume all responsibility for the construction, repair, maintenance, operation and removal of the Rail Facilities in connection with the Easement granted hereunder, and that Grantor shall have no liability relating to the Rail Facilities or the Easement. This agreement is available in the City Clerk's office if you wish to review it in its entirety. Expenditure Required Source of Funds N/A Policy Issue N/A Alternative N/A Background Information Prepared by Christopher S. Wendland, P.Q. Box 596, Waterloo, IA 50704. Phone (319) 234-5701 Return to preparer after recording. EASEMENT AGREEMENT This Easement Agreement (the "Agreement") is entered into as of jCQ /42E9/ 3 by and between the City of Waterloo, Iowa ("Grantor") and Hydrite Chemical Co. ("Grantee"). 1. Grant of Easements. In consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor does hereby grant and convey unto Grantee, its employees, contractors, and agents, and Grantee does hereby accept, an easement (the "Easement") in, upon, over, across, and beneath the real estate (the "Easement Premises") depicted on the plans and diagrams attached hereto as Exhibit "A," which is situated upon real estate locally known as assessor parcel no. 8913-10-176-007 and legally described as set forth on Exhibit "B" attached hereto. In connection with activities for construction, repair, maintenance, and removal of the rail bed and rail spur facilities (collectively, the "Rail Facilities"), Grantor does further grant to Grantee, its employees, contractors and agents, a temporary easement in, upon, over, across, and beneath such areas of Grantor's property as adjoin the Easement Premises and as may be reasonably necessary for such activities (the "Temporary Easement Premises"). The parties acknowledge that only a limited portion of the Rail Facilities will occupy the Easement Premises. 2. Purpose. The Easement Premises is intended for use as a railroad spur and railroad crossing. The Easement Premises shall not be used for any other purpose without the prior written consent of Grantor. It is the intention of the parties that Grantee shall assume all responsibility for the construction, repair, maintenance, operation and removal of the Rail Facilities in connection with the Easement granted hereunder, and that Grantor shall have no liability relating to the Rail Facilities or the Easement. 3. Grantor Duties. Grantor shall deliver possession of the Easement Premises to Grantee, "as is, where is," without any representation or warranty as to the condition of the Easement Premises or the suitability of same for the Rail Facilities or any related purposes. Grantor shall have no duty to prepare the Easement Premises in any way for Grantee's use. Following transfer of possession of the Easement Premises, Grantor shall have no further duty or obligation with respect to the Easement Premises. 4. Easement Conditions. Grantee agrees that its acceptance of the Easement and the Easement Premises is subject to each and all of the following terms, conditions, covenants, and restrictions, which are covenants running with the land: a. Grantee will construct, maintain, repair, operate, and remove the Rail Facilities on the Easement Premises in accordance with all federal, state, and local laws and regulations, and a standard of reasonable care. Grantee agrees that its rights of use with respect to the Easement Premises and Temporary Easement Premises are not exclusive, and Grantee acknowledges that the Easement Premises and the Temporary Easement Premises shall retain their character as a road available for public use at all times. b. Grantor is under no obligation whatsoever to maintain the Easement Premises or the Temporary Easement Premises in any particular state or condition. c. Grantee shall solely bear all responsibility, cost, and expense for design, construction, repair, maintenance, operation, removal, and any other work relating in any way to the Easement, the Easement Premises, and the Rail Facilities, including but not limited to special snow -removal requirements for operation of the Rail Facilities and maintenance of insurance covering the Rail Facilities and related improvements on the Easement Premises and any activities of Grantee, the railroad, or the employees, contractors, or agents of either of them. Notwithstanding the foregoing, the design of all improvements is subject to advance review and approval of Grantor. Upon removal of the Rail Facilities and related improvements, Grantee shall restore the condition of the Easement Premises with like materials and construction as compared to the adjoining road, subject to advance review of plans and approval of same by Grantor. d. Grantee shall operate the Rail Facilities so that the Easement Premises or Temporary Easement Premises are not closed to traffic for more than ten (10) minutes in any one-hour period, except as permitted by Iowa Code § 327G.32(1). e. Grantee shall not knowingly cause or permit any Hazardous Substance (defined below) to be brought upon, kept, or used in or about the Easement Premises or the Temporary Easement Premises in violation of applicable law by its employees, contractors, or agents. If Grantee breaches such obligation, or if contamination of the Easement Premises or Temporary Easement Premises from Hazardous Substances is caused or contributed to by the acts or omissions of Grantee, its officers, directors, employees, contractors, or agents (a "Breaching Party") or otherwise occurs for which the Breaching Party is legally liable, then the Grantee shall indemnify, defend, and hold Grantor harmless as provided in paragraph 4(0 below. Without limiting the foregoing, if the presence of any Hazardous Substance caused or permitted by the Breaching Party results in any contamination of the Easement Premises or the Temporary Easement Premises, Grantee shall promptly notify Grantor 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 Grantee shall first obtain Grantor's approval of any such action. For purposes of this Agreement, "Hazardous Substances" 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, 2 the Hazardous Materials Transportation Act, as amended, the Resource Conservation Recovery Act, as amended, and/or the regulations promulgated pursuant thereto. f. Grantee shall defend, indemnify and hold Grantor harmless from and against any and all claims, demands, causes of action, costs, expenses, or liabilities of any type or nature whatsoever, including but not limited to reasonable attorneys' fees and expenses, (each of the foregoing is a "Claim") arising from or in connection with the Rail Facilities, Grantee's use or occupation of the Easement Premises or the Temporary Easement Premises, or the activities of Grantee, its directors, officers, shareholders, employees, contractors, or agents, in, upon or about the Easement Premises or Temporary Easement Premises. Grantee further agrees to reimburse Grantor for any costs or expenses, including but not limited to court costs and reasonable attorneys' fees, which Grantor may incur in investigating, handling, or litigating any Claim. 5. Term of Easement; Termination. The Easement shall commence on the date of this Agreement and shall continue in force and effect for so long as the Rail Facilities are in use. For its term, the Easement shall run with the land for the benefit of Grantee, its successors in interest and future owners of its real property abutting the Easement Premises. If Grantee abandons the Rail Facilities or fails to use them for a period of twelve (12) months or more, then at Grantor's option Grantor may terminate this Agreement, and thereby terminate the Easement and all of Grantee's related rights of use in and to the Easement Premises and Temporary Easement Premises. Abandonment shall be presumed if Grantee has not filed with the office of the City Engineer a notice of continued use within sixty (60) days after Grantor's written request for same. Grantee's continued use shall be established upon filing of such notice, without regard to whether Grantee has in fact continued to use the Rail Facilities. Grantor shall deliver to Grantee a written notice of Grantor's intent to terminate this Agreement and permit Grantee a period of sixty (60) days from the date of delivery of the notice in which to provide written notice to Grantor of non -abandonment, and absent such action by Grantee, Grantor may file in the public land records of Black Hawk County, Iowa, a notice of termination hereof. Following termination, Grantor may remove the Rail Facilities and retain or dispose of same without incurring any liability to Grantee for damages, compensation, or otherwise. 6. Notices. Any notices hereunder shall be in writing and shall be delivered via certified mail, postage prepaid, and addressed as follows, unless a party later provides notice of an address change in the manner set forth in this Section: If to Grantor: City of Waterloo, Iowa Attn: City Engineer 715 Mulberry Street Waterloo, IA 50703 With a copy to: City of Waterloo, Iowa Attn: City Attorney 715 Mulberry Street Waterloo, IA 50703 3 If to Grantee: Hydrite Chemical Co. Attn: Legal Department 300 N. Patrick Blvd. Brookfield, WI 53045 Nothing contained herein shall prevent other forms of notice if actually received by the addressee. Notice shall be deemed given on the date of mailing if done by certified mail, or otherwise on the date actual notice is received. 7. Survival. The indemnity provisions of this Agreement shall survive the termination of this Agreement. 8. Miscellaneous Provisions. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors, assigns, and future property owners. This Agreement is the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior understandings or agreements relating to the subject matter hereof, whether oral or written, and this Agreement may not be modified except by the mutual written agreement of both parties. Time is of the essence. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Easement Agreement by their duly authorized representatives as of the date first set forth above. HYDRITE CHEMICAL CO. CITY OF WATERLOO, IOWA By: Mark D. Laehn Title: Vice President — Legal, Risk & Treasury AAP • By Hydrite Legal Dept. By: .�j - 2- 4''3 4 By: Attes Ernest G. Clark, Mayor Are 9-a Suzy Sc . es, City Clerk STATE OF WISCONSIN ) ss. WAUKESHA COUNTY This record was acknowledged before me on December 2, 2013, by Mark D. Laehn as Vice President — Legal, Risk & Treasury of Hydrite Chemical Co. Notary Public STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) This record was acknowledged before me on t1QCeof.i'et 1412013, by Ernest G. Clark and Suzy Schares as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa. nne Kobliska COMMISSION NO. 763995 MY COMMISSION EXPIRES otary Public /664244_, i EXHIBIT "A" See plans and diagrams attached hereto. l V1{103.1 v Y~{•Y Y•Y-Y 1 PROPOSED CROSSING PLAN 8 A 0 z C x 0 3 i 0 •>- ea 1 52 gO h 1,11 U d 0 z D 6 JT/:S a L4 W 3 PJI gr 5$54 ssii EXHIBIT "B" Unplatted Waterloo East, part of the NW ''A of Section 10, Township 89 North, Range 13 West of the 5th P.M., in Black Hawk County, Iowa, as described in 560 LD 287.