HomeMy WebLinkAbout2012-07-26 Resolution� r q 70k
CITY O F IOWA CITY
MEMORANDUM
Date: July 25, 2012
To: Tom Markus, City Manager
From: Ron Knoche, City Engineer 4-
Re: RESOLUTION APPROVING A TRACK CONSTRUCTION AGREEMENT WITH IOWA
INTERSTATE RAILROAD FOR CONSTRUCTION OF TRACK SIDING TO SERVE THE IOWA CITY
INDUSTRIAL CAMPUS — July 26th Special Meeting
Introduction: Rail sidings and spur lines are a part of the infrastructure being provided to the
Iowa City Industrial Campus.
History/Background: At the May 1, 2012 Council meeting, a contract was awarded to Peterson
Contractors, Inc. of Reinbeck, Iowa to construct the railroad sidings and spur lines at the Iowa
City Industrial Campus. This contract did not include the connections to the mainline of the
Iowa Interstate (IAIS) Railroad. IAIS Railroad requires the mainline connections to be installed
by their contractor.
Discussion of Solutions: Staff has negotiated a Track Construction Agreement with IAIS
Railroad. The City will reimburse IAIS Railroad for the costs incurred to install the connections.
IAIS Railroad will take over ownership and maintenance of the sidings after they are
constructed.
A special meeting is required to approve the Track Construction Agreement. This will save the
City $2,500 per day. This would have been charged to the City to keep the IAIS contractor in
the area until the July 31" Council meeting. If the City would not pay the $2,500 per day, the
contractor would leave the area and would not return until November 2012. This would delay
the completion of the Peterson Contractors project.
Financial Impact: The installation of the connections is estimated at $427,122.32. This will be
paid for through General Obligation Bonds and a State Railroad Grant.
Recommendation: Staff recommends approval of the Track Construction Agreement.
IOWA INTERSTATE RAILROAD, LTD.
TRACK CONSTRUCTION AGREEMENT
THIS AGREEMENT, made and entered into this day of July, 2012 /tweenpoints A
INTERSTATE RAILROAD, LTD. (hereinafter called the "Company) and CITY,
(hereinafter called the "Industry").
WITNESSETH:
WHEREAS, the Industry desires the mai tenance and operation of Railroad Sidtrack
spur to serve the Industry and be located i the City of Iowa City, Iowa, as show & B
and C & D (Railroad Siding), and E & F (I ustry Track) as illustrated in Exhibit
WHEREAS, the Company is willing that tl
the Company, and m aintained and operated
NOW THEREFORE, in consideration of the
1. MAINTENANCE. The Industry will be cod
is party of the Industry Track between point:
the final approval of the Company for all asl
track siding will become the property of d
obligations for the track siding following cor
D as shown on Exhibit A. The Industry shall
.lroad Siding shall be cor
the terms and conditions
it is agreed
Ated on the real property of
set forth in this agreement;
the parties as to the following:
ucting Railroad iding on the Company property that
& B and C D as shown on Exhibit A pursuant to
;ts of desig nd construction. Upon completion, the
Company. The Industry will have no maintenance
etion of onstruction between points A & B and C &
r and v the cost for construction.
2. TERM. The term of this agreement begins on t)
until the completion of the railroad track siding or
3. CONSTRUCTION AND SCOPE OF WORK.
points A & B and C & D as shown on Exhibit,
The Industry shall undertake the fo
Taft Ave. next to the Company's
following: construction of railroad
Exhibit A. The construction of th
Work and is consistent with Exhibit
crossing and complete the Railr
reimbursed by the Industry in an
Turnout Installation Costs, attach
entered above and will remain in full affect
ise terminated.
ompany shall own the Railroad Siding between
is located on the right of way of the Company.
llowin work, in d around the area between Compass Dr. and
mainl' a railroad 'n Iowa City, Iowa, the work consists of the
trac siding betty en points A & B and C & D as shown on
e d cribed railroad ack siding is now referred to the Scope of
The Company wi 1 perform work to finish the Compass Drive
o d Siding and con ctions. Said construction costs will be
ount not to exceed the estimate contained on the Compass Drive
as Exhibit "B" and inco orated herein by this reference.
For all work under the Scop of Work or work conduct by the Industry all work, changes,
extensions, installation, reco truction, renewal, and /or rehab- 'tation to the current condition of the
premises, the Industry under ands that, before all work conduc d on the premises, written approval
from the Company is requ' ed for design specifications. In add ion, after all work is conducted on
the premises, all work s subject to final written approval f the Company in meeting the
requirements, standard and design specifications of the Com any at the sole discretion the
Company. Furthe ore, the Industry understands that all sts for repairs, corrections,
reconstruction, con ction, or any other changes to the premises which are necessary to obtain final
approval of the ompany will be at the sole expense of the Industry. The Company requires the
submittal of all plans, specification, designs, drawings, and/or track standards or classifications by the
Industry for all work on premises to the Company befor a work is conducted for prior written
Page 1 of 5
approval/consent by the Company. The Company may enter the premises at any time the Company
desires to inspect the premises.
4. INDEPENDENT CONTRACTOR. Nothing contained in this agreement, or an document signed in
connection this agreement, shall be construed to create an employer - employ a relationship or joint
venture relationship between the Company and the Industry. The Industry, is an independent entity
and neither it nor its employees are employees of IRIS or any of its subsidi ies or affiliates.
LIENS. The Industry a ees to require that its contractor's provide /lien waivers for any and all
employees who work on t Company property. The Industry furt r agrees to waive any right to
assert a lien against the Co any. The Industry shall further ' emnify and hold the Company
harmless against liens asserted third parties as a consequence ofAhe work under this agreement.
6. COMPETENT WORK. The Ind try will perform all work .)6 a competent fashion in accordance
with applicable standards of the ra' road industry. All sere' es are subject to final approval by a
representative of the Company.
7. WARRANTIES. The Industry will mall no
Company without the Company' prior wr ei
INSURANCE. The Industry agrees to obtain
effect during the term of this agreement, a poll
damages, costs and expenses resulting from or
death) to any person and/or loss, damage or de
of or incidental to this agreement (and the actii
$10,000,000.00 per incident and $21,000,000.1
property damage with no railroad exclusions,
injury exclusions. The insurance shall inclu e
and shall be endorsed to provide that the In us
in this agreement and shall further provid thal
to the Company in the event of cancellat' n or
contain any exclusion for dam
and policy endorsement/rider
furnished to the Company upo
days advance written notice sh
modification of this policy. D
the Company's acceptance is
obligations under this agreeme
available insurance policies co
tender to the party and insurer
statement or declaration in any
as a secondary or excess to so
to determine primary insurer
consent
its o
V of
the
thi
warranties, or commitments binding the
cost and expense and keep in full force and
surance insuring the Industry against all
ig in connection with bodily injury (including
ion of any property resulting from, growing out
on the premises) with limits of not less than
aggregate for death or injury to each person and
pany employee exclusions, and no work related
pany as a named insured or additional insured
[a] ssume the contractual obligations as set forth
(3 ) days advance written notice shall be given
ficat n of this policy. The insurance shall not
rty. A certificate of insurance
dditional insured shall be
further provide that thirty (30)
nt of cancellation or
rider required by this section and
or modify the Industry's
scretion to choose between any
have the sole discretion to
will not be governed by any
laiming/exerting/stating status
mnanv has the sole discretion
age occu mg on or near rai oad prope
naming a Company as an i ured or a
n exec ion of this agreement nd shall
all be iven to the Company in he eve
Dc of certificate and endors ent/
not i tended to or shall not limit, fect,
nt. The Company will have the so a di
v ing an event or occurrence and ' 11
f r available coverage. The Compa
above described insurance policy /ies
e other insurance policy /ies and the
and secondary /excess insurer /s for any
rty
or event.
9. FUTURE INDUSTRY TRACKS. For all future industry tracks or any ther type of railroad track
built onto or connected to he railroad track siding between points A & and C & D as shown on
Exhibit A or the industry pur track (or any future extension) between p ints E & F as shown on
Exhibit A, for all future acks an Industry Track Agreement must be entered into with the Company
for the operation and maintenance of all future tracks before the Company agrees to or makes the
connection to the industry spur track or provide rail service to any future track on the industry spur
track.
Page 2 of 5
10. OBSTRUCTIONS, CLEARANCES, AND SAFETY MEASURES. The Industry or any of its
contractors or subcontractors shall not place any materials at any time on or near the main railroad
line of the Company as to foul the mainline risking an incident or collision w' h a train of the
Company. In addition, the industry shall be rFdustry rise for all costs for flagging or ther items for the
operational safety of the railroad and for the and its contractors to co uct the work under
this agreement.
11. GENERAL INDEMNITY CLAUSE. The ndustry agrees to indemni and hold harmless the
Company for loss, damage, injury, or death (i cluding attorney fees, exp and consulting expenses,
and all other litigation expenses) to persons property for any an/al claims relating to or arising
from the construction of the Railroad Siding c nsidered under this ment regardless of the cause
and including any acts or omissions of the Co pany, its employees, nts.
12. ENVIRONMENTAL. The Industry during nstruction shall of cause or permit any Hazardous
Substance to be used, stored, generated or isposed of (a) n the Industry Track, (b) within the
clearance requirements established under this greement, or within one hundred (100) feet of the
Company's connecting mainline track by t e Industry d the Industry's agents, employees,
contractors, subcontractors or invitees, or any elated per ns or entities. Any permitted storage of
Hazardous Substances shall be in compliance ith all a licable laws, ordinances, rules, regulations
and requirements of all governmental autho 'ties a the various departments. If Hazardous
Substances are used, stored, generated, or dispo ed o on or in the Industry Track or right -of -way as
permitted above, or if Hazardous Substances are se , stored, generated, or disposed of on, in or from
the Industry Track or right -of -way in violation o cal, state, or federal law, or if the Industry Track
or right -of -way or surrounding, adjacent or nearb property becomes contaminated in any manner for
which the Industry are legally liable, the Ind shall indemnify, defend and hold harmless the
Company from any and all claims, damages, in s, judgments, penalties, costs, liabilities, or losses
(including, without limitation, any and all sum paid for settlement of claims, attorneys' fees,
consultant, and expert fees) arising during o after a term of this agreement and arising as a result of
that use, storage, generation, disposal conta ination by the Industry. This indemnification
includes, without limitation, any and all osts incu d because of any investigation of contamination
or violation of local, state or federal aw, or any leanup, removal, or restoration mandated by a
federal, state or local government or gency thereof. As used herein, "Hazardous Substance" means
any substance that is toxic, ignitable, reactive or corr sive and that is regulated by any local, state or
federal government or agency the#eof. " Hazardou Substance" includes any and all material or
substances that are defined as "hlLardous waste ", pu suant to state, federal, or local governmental
law. "Hazardous Substance" ncludes but is not estricted to asbestos, polychlorobipehenyls
( "PCBs "), and petroleum. NotyVithstanding any of the oregoing, Scoular shall not be responsible or
liable for any Hazardous Substaance used, stored, generat d or disposed of as set forth in (a) -(c) above
by IAIS or its agents, empl4ees, contractors, subcontr tors or invitees, or any related persons or
entities of IAIS, or by any p4rty that is not a Scoular Rela d Party or that is existing on or before the
date of this agreement.
13. TERMINATION. The ompany shall have the right, at its tion, to terminate this agreement at any
time if any of the to s of this agreement have not been met, at the sole determination of the
Company, by the Ind stry and the Industry will be responsi \thisa costs for the restoration of the
property as the Comp y deems appropriate and necessary.
14. OWNERSHIP A CONSTRUCTION. The Industry in deration of good and valuable
consideration, the eceipt is acknowledged by the execution of reement, does convey, subject to
the terms, conditions, reservations, and exceptions of this agreement, to the Company ALL OF the
Page 3 of 5
Industry's PERSONAL PROPERTY and FIXTURES (Personal Propery I and Fixtures), described as
being all improvements affixed or installed, located on the premises be een points A & B and C &
D as shown on Exhibit A, including and together with all impr ements, tenements, fixtures,
appurtenances on the premises, improv ments affixed or installed, uch as rail and other railroad
tracks or other track materials, industr' 1 sidings, bridges and culve , right -of -way fences, buildings,
passages, sewer rights, trackage, sign 1 and communication equip ent, flowers, shrubs, crops, trees,
timber and other emblements now or ater located on the premis s or under or above or any part or
parcel of the premises, and all right , titles, interests, and a urtenances in any way belonging,
relating, or appertaining to the Persona Property and Fixtures r any part of it, or which shall in any
belong, relate, or be appurtenant to the Personal Property an Fixtures; and it being understood that
the enumeration of any specific articles f property shall in o way exclude or be held to exclude any
items of property not specifically menti ed. All of the pr erty described in this agreement, whether
affixed or annexed or not (except where therwise descri d in this agreement) and all right conveyed
and transferred are intended so to be as a nit and it is u erstood, agreed, and declared to form a part
and parcel of the Personal Property and 'xtures to th premises and to be appropriated to the use of
the Personal Property and Fixtures.
15. ASSIGNMENT. The Industry shall not a
written consent of the Company. Subject
upon the respective parties, and their res
assigns.
16. PERFORMANCE. In the event any of the
out or performed prior to the date of execu of
nevertheless be of the same force and effe as
such performance.
GIs agreement or any interest therein, without the
above limitation, this agreement shall be binding
heirs, executors, administrators, successors, and
or provisions of this agreement have been carried
is understood and agreed that this agreement shall
ugh same had been executed by the parties prior to
17. FORCE MAJEURE. The Company s ll not be o ligated to operate on the Industry Track if it shall
be prevented or hindered from doing y acts of Go public authority, strikes, riots, labor disputes, or
any cause beyond its control.
18.
of and be binding upon (i) the
limitation, the Company and thyLompany's successors
is the owner of the Industry Tifack and lines of railroad
and (iii) the person, firm, p nership, or corporation
designated by the Company r future owner of the lines
sole operator designated to conduct freight operations
Track.
(ii) the
D. This agreement shall inure to the benefit
and assigns of the parties, including without
and assigns, in recognition that the Company
mediately adjacent to the Industry Track,
er than the Company that may be duly
Alailroad and Industry Track as the one (1)
ov r the lines of railroad and the Industry
19. WAIVER. The Compare 's failure to invoke any right, conditi n, or covenant in this agreement shall
not be deemed to imply or constitute a waiver of any right, co dition or covenant and the Industry
may not rely on such f lure.
20. ENFORECEABILI If any provision of this agreement is held by a court of competent
jurisdiction to be a nforceable, the remainder of the agreement sha 1 remain in full force and effect
and shall in no way be impaired.
21. GOVERNING L W AND PERFORMANCE. This agreement shall be erformed by the Industry in
the City of Iowa City, Johnson County, Iowa. Governing Law, Severabili This agreement shall be
governed by the 1 , s of the State of Iowa. A legal determination that one o more clauses are invalid
Page 4 of 5
or unenforceable shall not affect the validity or enforceability of any other provision. In the event the
Industry is non - resident of the State of Iowa, said performance of this agreement shall be deemed as
doing business in Iowa, shall be deemed to constitute the appointment of the Secretary of State of
Iowa to be said non - resident's true and lawful attorney upon whom may be served process under
Section 617.3 Code of Iowa (2011) and any process or original notice served under said statute shall
be of the same legal force and effect as of served personally upon the Industry within the State of
Iowa. The parties intend this agreement to be executed in, and interpreted, construed and enforced in
accordance with the laws of the State of Iowa. (24) Observance of Applicab 6 Law. The Industry will
be required to observe and comply with all provisions of federal an state constitutions, laws,
regulations and judicial ord pertaining to nondiscrimination and eq 1 employment opportunity.
All applicable laws, ordinan es, and the rules and regulations of all uthorities having jurisdiction
over construction of the
pro t shall apply to the AGREEMENT thro ghout.
22. LEGAL FEES. In case of any action, claim or any proceeding i which a dispute arises concerning
this agreement, each party shall ay their own attorney's fees anpr expenses.
23. ENTIRE AGREEMENT. This a reerr.
the complete and exclusive expres ion
and contemporaneous negotiations d
this agreement are expressly merge i
agreement, neither party has relied up r
other party except for those expressly
parties that all applicable terms, in pai
remain in full affect after the expiration
IN WITNESS WHEREOF, the
day and year above stated.
Approved by
City Attorney's Office
lent constitutes the al agreement between the parties. It is
of the parties' fi agre ment on the matters contained. All prior
agreements be en the parties on the matters contained in
nto and superseded by this agreement. In entering into this
i any statemeny representation, warranty, nor agreement of the
.ontained in is agreement. It is the expressed intent of the
licular the/ransfer of personal property and all indemnities,
car terminAtion of this agreement.
er,6to have caused this agreement to be executed as of the
WA INTERSTATE RAILROAD, LTD.
By
Title
CITY OF OWA CITY
By: Matthew .Hayek, Mayor
ATTEST:
Marian arr, City Clerk
Page 5 of 5
W
Prepared by: Eric Goers, Assistant City Attorney, 410 E. Washington St., Iowa City, IA 52240. (319) 356 -5030
RESOLUTION NO. 12 -342
RESOLUTION APPROVING A TRACK CONSTRUCTION AGREEMENT WITH IOWA
INTERSTATE RAILROAD FOR CONSTRUCTION OF TRACK SIDING TO SERVE THE IOWA
CITY INDUSTRIAL CAMPUS.
WHEREAS, track siding is to be constructed at the Iowa City Industrial Campus to serve future
industries locating there; and
WHEREAS, staff has negotiated a Track Construction Agreement with Iowa Interstate Railroad to
allow for construction of the siding on Iowa Interstate right -of -way; and
WHEREAS, the Iowa Interstate surfacing gang is scheduled to leave the area at the end of this
week, not to return until November, 2012; and
WHEREAS, in order to better market the Iowa City Industrial Campus, staff would like to
complete the siding now, instead of sometime in November, 2012; and
WHEREAS, it is in the interest of the City of Iowa City to enter into said Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA
CITY, IOWA, THAT:
The Mayor is hereby authorized to sign and the City Clerk to attest the attached Track
Construction Agreement between the City of Iowa City, Iowa and Iowa Interstate Railroad.
Passed and approved this 26th day of July 12012,
kti
MAYOR
Approved by
ATTEST: ?L ,- a�i..z l
CITY bLERK
City Attorney's Office
It was moved by Dickens and seconded by Mims the Resolution be
adopted, and upon roll call there were:
AYES: NAYS: ABSENT:
x Champion
x Dickens
x Dobyns
x Hayek
x Mims
x Payne
x Throgmorton
IOWA INTERSTATE RAILROAD, LTD.
TRACK CONSTRUCTION AGREEMENT
THIS AGREEMENT, made and entered into this 26 day of July, 2012 by and between IOWA
INTERSTATE RAILROAD, LTD. (hereinafter called the "Company) and CITY OF IOWA CITY,
(hereinafter called the "Industry").
WITNESSETH:
WHEREAS, the Industry desires the maintenance and operation of Railroad Siding and an industry track
spur to serve the Industry and be located in the City of Iowa City, Iowa, as shown between points A & B
and C & D (Railroad Siding), and E & F (Industry Track) as illustrated in Exhibit A; and
WHEREAS, the Company is willing that the Railroad Siding shall be constructed on the real property of
the Company, and maintained and operated upon the terms and conditions as set forth in this agreement;
NOW THEREFORE, in consideration of the premises, it is agreed between the parties as to the following:
1. MAINTENANCE. The Industry will be constructing Railroad Siding on the Company property
between points A & B and C & D as shown on Exhibit A pursuant to the final approval of the
Company for all aspects of design and construction. Upon completion, the track siding will become
the property of the Company. The Industry will have no maintenance obligations for the track siding
following completion of construction between points A & B and C & D as shown on Exhibit A. The
Industry shall bear and pay the cost for construction.
2. TERM. The term of this agreement begins on the date entered above and will remain in full affect
until the completion of the railroad track siding or otherwise terminated.
3. CONSTRUCTION AND SCOPE OF WORK. The Company shall own the Railroad Siding between
points A & B and C & D as shown on Exhibit A that is located on the right of way of the Company.
The Industry shall undertake the following work, in and around the area between Compass Dr. and
Taft Ave. next to the Company's mainline railroad in Iowa City, Iowa, the work consists of the
following: construction of railroad track siding between points A & B and C & D as shown on
Exhibit A. The construction of the described railroad track siding is now referred to the Scope of
Work and is consistent with Exhibit A. No connection from the constructed Railroad Siding to any
industry track will be constructed under the scope of work under this agreement. The Industry will
install the Railroad Siding, and the Company will perform work to complete the connections. Said
construction costs will be reimbursed by the Industry in an amount not to exceed the estimate
contained on the Compass Drive Turnout Installation Costs, attached as Exhibit "B" and incorporated
herein by this reference.
For all work under the Scope of Work or work conducted by the Industry all work, changes,
extensions, installation, reconstruction, renewal, and /or rehabilitation to the current condition of the
premises, the Industry understands that, before all work conducted on the premises, written approval
from the Company is required for design specifications. In addition, after all work is conducted on
the premises, all work is subject to final written approval of the Company in meeting the
requirements, standards, and design specifications of the Company at the sole discretion the
Company. Furthermore, the Industry understands that all costs for repairs, corrections,
reconstruction, construction, or any other changes to the premises which are necessary to obtain final
approval of the Company will be at the sole expense of the Industry. The Company requires the
Page l of 5
submittal of all plans, specification, designs, drawings, and/or track standards or classifications by the
Industry for all work on premises to the Company before work is conducted for prior written
approval /consent by the Company. The Company may enter the premises at any time the Company
desires to inspect the premises.
4. INDEPENDENT CONTRACTOR. Nothing contained in this agreement, or any document signed in
connection this agreement, shall be construed to create an employer - employee relationship or joint
venture relationship between the Company and the Industry. The Industry is an independent entity
and neither it nor its employees are employees of IAIS or any of its subsidiaries or affiliates.
5. LIENS. The Industry agrees to require that its contractor's provide lien waivers for any and all
employees who work on the Company property. The Industry further agrees to waive any right to
assert a lien against the Company. The Industry shall further indemnify and hold the Company
harmless against liens asserted by third parties as a consequence of the work under this agreement.
6. COMPETENT WORK. The Industry will perform all work in a competent fashion in accordance
with applicable standards of the railroad industry. All services are subject to final approval by a
representative of the Company.
WARRANTIES. The Industry will make no representations, warranties, or commitments binding the
Company without the Company' prior written consent
INSURANCE. The Industry agrees to obtain at its own cost and expense and keep in full force and
effect during the term of this agreement, a policy of insurance insuring the Industry against all
damages, costs and expenses resulting from or arising in connection with bodily injury (including
death) to any person and/or loss, damage or destruction of any property resulting from, growing out
of or incidental to this agreement (and the activities on the premises) with limits of not less than
$10,000,000.00 per incident and $21,000,000.00 in aggregate for death or injury to each person and
property damage with no railroad exclusions, no Company employee exclusions, and no work related
injury exclusions. The insurance shall include the Company as a named insured or additional insured
and shall be endorsed to provide that the Industry shall assume the contractual obligations as set forth
in this agreement and shall further provide that thirty (30) days advance written notice shall be given
to the Company in the event of cancellation or modification of this policy. The insurance shall not
contain any exclusion for damage occurring on or near railroad property. A certificate of insurance
and policy endorsement/rider naming the Company as an insured or additional insured shall be
furnished to the Company upon execution of this agreement and shall further provide that thirty (30)
days advance written notice shall be given to the Company in the event of cancellation or
modification of this policy. Delivery of certificate and endorsement/rider required by this section and
the Company's acceptance is not intended to or shall not limit, affect, or modify the Industry's
obligations under this agreement. The Company will have the sole discretion to choose between any
available insurance policies covering an event or occurrence and will have the sole discretion to
tender to the party and insurer for available coverage. The Company will not be governed by any
statement or declaration in any above described insurance policy /ies claiming/exerting /stating status
as a secondary or excess to some other insurance policy /ies and the Company has the sole discretion
to detennine primary insurer /s and secondary/excess insurer /s for any occurrence or event.
9. FUTURE INDUSTRY TRACKS. For all future industry tracks or any other type of railroad track
built onto or connected to the railroad track siding between points A & B and C & D as shown on
Exhibit A or the industry spur track (or any future extension) between points E & F as shown on
Exhibit A, for all future tracks an Industry Track Agreement must be entered into with the Company
for the operation and maintenance of all future tracks before the Company agrees to or makes the
Page 2 of 5
connection to the industry spur track or provide rail service to any future track on the industry spur
track.
10. OBSTRUCTIONS CLEARANCES, AND SAFETY MEASURES. The Industry or any of its
contractors or subcontractors shall not place any materials at any time on or near the main railroad
line of the Company as to foul the mainline risking an incident or collision with a train of the
Company. In addition, the industry shall be response for all costs for flagging or other items for the
operational safety of the railroad and for the Industry and its contractors to conduct the work under
this agreement.
11. GENERAL INDEMNITY CLAUSE. The Industry agrees to indemnify and hold harmless the
Company for loss, damage, injury, or death (including attorney fees, expert and consulting expenses,
and all other litigation expenses) to persons or property for any and all claims relating to or arising
from the construction of the Railroad Siding considered under this agreement regardless of the cause
and including any acts or omissions of the Company, its employees, or agents.
12. ENVIRONMENTAL. The Industry during construction shall not cause or pennit any Hazardous
Substance to be used, stored, generated or disposed of (a) on the Industry Track, (b) within the
clearance requirements established under this agreement, or (c) within one hundred (100) feet of the
Company's connecting mainline track by the Industry and the Industry's agents, employees,
contractors, subcontractors or invitees, or any related persons or entities. Any permitted storage of
Hazardous Substances shall be in compliance with all applicable laws, ordinances, rules, regulations
and requirements of all governmental authorities and the various departments. If Hazardous
Substances are used, stored, generated, or disposed of on or in the Industry Track or right -of -way as
permitted above, or if Hazardous Substances are used, stored, generated, or disposed of on, in or from
the Industry Track or right -of -way in violation of local, state, or federal law, or if the Industry Track
or right -of -way or surrounding, adjacent or nearby property becomes contaminated in any manner for
which the Industry are legally liable, the Industry shall indemnify, defend and hold harmless the
Company from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses
(including, without limitation, any and all sums paid for settlement of claims, attorneys' fees,
consultant, and expert fees) arising during or after the term of this agreement and arising as a result of
that use, storage, generation, disposal or contamination by the Industry. This indemnification
includes, without limitation, any and all costs incurred because of any investigation of contamination
or violation of local, state or federal law, or any cleanup, removal, or restoration mandated by a
federal, state or local government or agency thereof. As used herein, "Hazardous Substance" means
any substance that is toxic, ignitable, reactive or corrosive and that is regulated by any local, state or
federal government or agency thereof. "Hazardous Substance" includes any and all material or
substances that are defined as "hazardous waste ", pursuant to state, federal, or local governmental
law. "Hazardous Substance" includes but is not restricted to asbestos, polychlorobipehenyls
( "PCBs "), and petroleum. Notwithstanding any of the foregoing, Scoular shall not be responsible or
liable for any Hazardous Substance used, stored, generated or disposed of as set forth in (a) -(c) above
by IAIS or its agents, employees, contractors, subcontractors or invitees, or any related persons or
entities of IAIS, or by any party that is not a Scoular Related Party or that is existing on or before the
date of this agreement.
13. TERMINATION. The Company shall have the right, at its option, to terminate this agreement at any
time if any of the terms of this agreement have not been met, at the sole determination of the
Company, by the Industry and the Industry will be responsible for costs for the restoration of the
property as the Company deems appropriate and necessary.
Page 3 of 5
14. OWNERSHIP AND CONSTRUCTION. The Industry in consideration of good and valuable
consideration, the receipt is acknowledged by the execution of this agreement, does convey, subject to
the terms, conditions, reservations, and exceptions of this agreement, to the Company ALL OF the
Industry's PERSONAL PROPERTY and FIXTURES (Personal Property and Fixtures), described as
being all improvements affixed or installed, located on the premises between points A & B and C &
D as shown on Exhibit A, including and together with all improvements, tenements, fixtures,
appurtenances on the premises, improvements affixed or installed, such as rail and other railroad
tracks or other track materials, industrial sidings, bridges and culverts, right -of -way fences, buildings,
passages, sewer rights, trackage, signal and communication equipment, flowers, shrubs, crops, trees,
timber and other emblements now or later located on the premises or under or above or any part or
parcel of the premises, and all rights, titles, interests, and appurtenances in any way belonging,
relating, or appertaining to the Personal Property and Fixtures or any part of it, or which shall in any
belong, relate, or be appurtenant to the Personal Property and Fixtures; and it being understood that
the enumeration of any specific articles of property shall in no way exclude or be held to exclude any
items of property not specifically mentioned. All of the property described in this agreement, whether
affixed or annexed or not (except where otherwise described in this agreement) and all right conveyed
and transferred are intended so to be as a unit and it is understood, agreed, and declared to form a part
and parcel of the Personal Property and Fixtures to the premises and to be appropriated to the use of
the Personal Property and Fixtures.
15. ASSIGNMENT. The Industry shall not assign this agreement or any interest therein, without the
written consent of the Company. Subject to the above limitation, this agreement shall be binding
upon the respective parties, and their respective heirs, executors, administrators, successors, and
assigns.
16. PERFORMANCE. In the event any of the terms or provisions of this agreement have been carried
out or performed prior to the date of execution, it is understood and agreed that this agreement shall
nevertheless be of the same force and effect as though same had been executed by the parties prior to
such performance.
17. FORCE MAJEURE. The Company shall not be obligated to operate on the Industry Track if it shall
be prevented or hindered from doing by acts of God, public authority, strikes, riots, labor disputes, or
any cause beyond its control.
18. INTEREST OF IOWA INTERSTATE RAILROAD, LTD. This agreement shall inure to the benefit
of and be binding upon (i) the parties, (ii) the successors and assigns of the parties, including without
limitation, the Company and the Company's successors and assigns, in recognition that the Company
is the owner of the Industry Track and lines of railroad immediately adjacent to the Industry Track,
and (iii) the person, firm, partnership, or corporation other than the Company that may be duly
designated by the Company or future owner of the lines of railroad and Industry Track as the one (1)
sole operator designated to conduct freight operations over the lines of railroad and the Industry
Track.
19. WAIVER. The Company's failure to invoke any right, condition, or covenant in this agreement shall
not be deemed to imply or constitute a waiver of any right, condition or covenant and the Industry
may not rely on such failure.
20. ENFORECEABILITY. If any provision of this agreement is held by a court of competent
jurisdiction to be unenforceable, the remainder of the agreement shall remain in full force and effect
and shall in no way be impaired.
Page 4 of 5
21. GOVERNING LAW AND PERFORMANCE. This agreement shall be performed by the Industry in
the City of Iowa City, Johnson County, Iowa. Governing Law, Severability. This agreement shall be
governed by the laws of the State of Iowa. A legal determination that one or more clauses are invalid
or unenforceable shall not affect the validity or enforceability of any other provision. In the event the
Industry is non - resident of the State of Iowa, said performance of this agreement shall be deemed as
doing business in Iowa, shall be deemed to constitute the appointment of the Secretary of State of
Iowa to be said non- resident's true and lawful attorney upon whom may be served process under
Section 617.3 Code of Iowa (2011) and any process or original notice served under said statute shall
be of the same legal force and effect as of served personally upon the Industry within the State of
Iowa. The parties intend this agreement to be executed in, and interpreted, construed and enforced in
accordance with the laws of the State of Iowa. (24) Observance of Applicable Law. The Industry will
be required to observe and comply with all provisions of federal and state constitutions, laws,
regulations and judicial orders pertaining to nondiscrimination and equal employment opportunity.
All applicable laws, ordinances, and the rules and regulations of all authorities having jurisdiction
over construction of the project shall apply to the AGREEMENT throughout.
22. LEGAL FEES. In case of any action, claim or any proceeding in which a dispute arises concerning
this agreement, each party shall pay their own attorney's fees and expenses.
23. ENTIRE AGREEMENT. This agreement constitutes the final agreement between the parties. It is
the complete and exclusive expression of the parties' agreement on the matters contained. All prior
and contemporaneous negotiations and agreements between the parties on the matters contained in
this agreement are expressly merged into and superseded by this agreement. In entering into this
agreement, neither party has relied upon any statement, representation, warranty, nor agreement of the
other party except for those expressly contained in this agreement. It is the expressed intent of the
parties that all applicable terms, in particular the transfer of personal property and all indemnities,
remain in full affect after the expiration or termination of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the
day and year above stated.
Approved by
City Attorney's Office
IOWA INTERSTATE ILROAD, LTD.
By
Title
CITY OF IOWA CITY
1�4�
By: Matthew J. Hayek, Mayor
ATTEST: Lt�� iC 1-Lf�
Marian-Karr, ty Clerk
Page 5 of 5
12322 +17 C/L
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12316 +07 Spur Track
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12295 +91 East Switch
12293 +91 East Switch � T
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COMPASS DRIVE TURNOUT INSTALLATION COSTS
AFE: 1387
COUNTY: Johnson
MILE POST: 233
FRA NO.: n/a
STATE ID NO.:
NAME: Mainline Indust
Turnouts
CITY: Iowa Cit
MATERIAL
UNIT
TOTAL
ITEM
QTY.
UNIT
COST
COST
TURNOUT #11 PANELIZED
4
T.F.
$69,502.08
$278,008.32
BALLAST
640
TON
$32.00
$20,480.00
115# Rail New
0
L.F.
$32.00
$0.00
FIELD WELDS
0
EACH
$115.00
$0.00
CROSS TIES (7x9x10')
0
EACH
$80.15
$0.00
14" TIE PLATES
0
EACH
$8.75
$0.00
TRACK SPIKES
0
KEGS
$150.00
$0.00
BALLAST
0
TON
$27.50
$0.00
ANCHORS
1,000
EACH
$2.00
$2,000.00
6" CMP
0
L.F.
$6.00
$0.00
SUBTOTAL:
$300,488.32
MATL HANDLING AND STORAGE:
5.00%
$15,024.42
MATERIAL TOTAL:
$315,512.74
LABOR
HOURLY
TOTAL
CLASSIFICATION
RATE
DAYS
HOURS
COST
FOREMAN
$22.4300
8
64.00
$1,435.52
TRACKMAN
$18.4800
4
32.00
$591.36
MACHINE OPERATOR
$20.8300
0
0.00
$0.00
WELDER
$22.4300
0
0.00
$0.00
ROADMASTER
$27.3000
4
32.00
$873.60
SUBTOTAL:
$2,900.48
ADDITIVE RATE:
76.25%
$2,211.62
SUBTOTAL:
$5,112.10
PER DIEM
LODGING
DAYS
EMPLOYEE EXPENSES & LODGING
$25.00
$50.00
0
$0.00
TOTAL LABOR COSTS:
$5,112.10
OUTSIDE SERVICES
UNIT
TOTAL
ITEM
QTY.
UNIT
COST
COST
CONTRACT SURFACING
6.00
DAY
$2,500.00
$15,000.00
UNLOAD TURNOUTS
1.00
LS
$825.00
$825.00
FIELD WELDS CONTRACTOR
72.00
Ea
$550.00
$39,600.00
CONTRACT TURNOUT INSTALL
12.00
DAY
$1,750.00
$21,000.00
EXCAVATING CONTRACTOR
4.00
LS
$2,500.00
$10,000.00
EQUIPMENT & O.S. TOTAL:
$86,425.00
MATERIAL TOTAL:
$315,512.74
TOTAL LABOR COSTS:
$5,112.10
MATERIAL & LABOR SUBTOTAL:
$320,624.83
EQUIPMENT COSTS:
0.00% (OF LAB. & MAT.)
$0.00
OUTSIDE SERVICES TOTAL:
$86,425.00
SUBTOTAL:
$407,049.83
CONTINGENCIES:
5.00%
$20,352.49
PROJECT SUBTOTAL:
$427,402.32
SCRAP CREDIT:
4.00
N.T.
70.00
- $280.00
PROJECT TOTAL:
$427,122.32
EXHIBIT
a