Bee Branch Creek Restoration Project, Utility Occupancy License with DM&E Railroad Copyright 2014
City of Dubuque Consent Items # 29.
ITEM TITLE: Bee Branch Creek Restoration Project, Utility Occupancy License for the
Installation of Sanitary Sewer and Fiber Conduit
SUMMARY: City Manager recommending approval of the execution of a Utility
Occupancy License Agreement with Dakota, Minnesota & Eastern
Railroad Corporation as part of the Bee Branch Creek Restoration Project.
RESOLUTION Authorizing the Utility Occupancy License Agreement
made and entered into by and between the City of Dubuque, Iowa and
Dakota, Minnesota & Eastern Railroad Corporation, doing business as
Canadian Pacific
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Adopt Resolution(s)
ATTACHMENTS:
Description Type
❑ Bee Branch Creek Utility Occupancy License-MVM Memo City Manager Memo
❑ Staff Memo Staff Memo
❑ Resolution Resolutions
❑ Utility Occupancy License Supporting Documentation
❑ Plans, Sanitary Sewer Supporting Documentation
THE CITY OF Dubuque
UBE I
erica .i
Masterpiece on the Mississippi 2007-2012-2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Bee Branch Creek Restoration Project, Utility Occupancy License for the
Installation of Sanitary Sewer & Fiber Conduit
(CIP #7221654)
DATE: June 29, 2015
City Engineer Gus Psihoyos recommends City Council approval of the execution of a
Utility Occupancy License Agreement with Dakota, Minnesota & Eastern Railroad
Corporation, a corporation doing business as Canadian Pacific, in order to proceed with
the construction of the proposed sanitary sewer and fiber optic conduit under the
railroad tracks at 506 Garfield Avenue as part of the Bee Branch Creek Restoration
project.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Gus Psihoyos, City Engineer
THE CITY OF Dubuque
DUB E Wcy
11
I ►
Masterpiece ort the. Mississippi 2007.2012.21113
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
,A C'
DATE: June 24, 2015
SUBJECT: Bee Branch Creek Restoration project, Utility Occupancy License for the
Installation of Sanitary Sewer & Fiber Conduit
(CIP#7221654)
INTRODUCTION
The purpose of this memorandum is to present for consideration a Utility Occupancy
License (License) between Dakota, Minnesota, & Eastern Railroad Corporation, a
corporation doing business as Canadian Pacific (CP), and the City of Dubuque (City)
that would allow the City to construction a sanitary sewer and fiber optic cable via
trenchless tunneling under the CP tracks at 506 Garfield Avenue as part of the Bee
Branch Creek Restoration Project.
BACKGROUND
On May 18, 2015 the City Council adopted Resolution 176-15 awarding the construction
contract for the Upper Bee Branch Creek— Channel, Streets, & Utilities Project. The
project represents the first of multiple construction contracts associated with the Upper
Bee Branch Creek Restoration Project.
On May 18, 2015 the City Council adopted Resolution 177-15 awarding the construction
contract for the Upper Bee Branch Creek— Structures Project. The project represents
the second of multiple construction contracts associated with the Upper Bee Branch
Creek Restoration Project.
DISCUSSION
The improvements associated with the Upper Bee Branch Creek Restoration Project
are to be constructed through multiple contracts. One such contract involves the
installation of a 36-inch diameter sanitary sewer and fiber optic conduit from the Lower
Bee Branch Creek to the Upper Bee Branch Creek through the Canadian Pacific
railroad tracks at 506 Garfield Avenue. The 60-inch diameter casing pipe that will house
both the sewer and fiber will be installed via a trench less/tunnel i ng method to avoid the
costs associated with providing temporary tracks and other measures that would
otherwise be required to minimize the impacts to the operation of the railroad.
CP typically issues a utility license to install, maintain, and operate utility lines under its
railroad corridor. CP provided a draft Utility Occupancy License (License) that appears
to be commonly used by CP for utility crossings. The proposed license agreement was
subsequently reviewed and edited by the Engineering and Legal Departments to reflect
the specifics of the City's project.
The City continues to work towards a separate easement agreement with CP relating to
the installation of the storm sewer culverts that will pass flow through CP property from
the Upper Bee Branch currently under construction to the Lower Bee Branch which was
completed in 2011.
Executing the License will allow the City to proceed with the bidding and construction of
the 36-inch diameter sanitary sewer and fiber optic conduit from the Lower Bee Branch
Creek to the Upper Bee Branch Creek through the Canadian Pacific railroad tracks at
506 Garfield Avenue.
RECOMMENDATION
I recommend executing the attached Utility Occupancy License agreement with Dakota,
Minnesota, & Eastern Railroad Corporation, a corporation doing business as Canadian
Pacific in order to proceed with the construction the proposed sanitary sewer and fiber
optic conduit under the railroad tracks at 506 Garfield Avenue as part of the Bee Branch
Creek Restoration Project.
BUDGETIMPACT
Per the License, the City would pay CP $11,500.00 for the right to install the sanitary
sewer and fiber optic conduit. In addition, there is a license fee of $4,000.00 for a total
payment from the City of$15,500.00. The payment will be made using funding set aside
in the Fiscal Year 2014 Capital Improvement Program Budget for property and right-of-
way acquisition related to the Bee Branch Creek Restoration Project (CIP#7201654).
REQUESTED ACTION
I respectfully request adoption of the attached resolution authorizing the execution of
the attached Utility Occupancy License agreement with Dakota, Minnesota, & Eastern
Railroad Corporation, a corporation doing business as Canadian Pacific in order to
proceed with the construction the proposed sanitary sewer and fiber optic conduit under
the railroad tracks at 506 Garfield Avenue as part of the Bee Branch Creek Restoration
Project.
Encl.
Prepared by Deron Muehring
Cc: Barry Lindahl, City Attorney
Teri Goodmann, Assistant City Manager
Jenny Larson, Budget Director
Steve Brown, Project Manager
Deron Muehring, Civil Engineer II
2
RESOLUTION NO. 222-15
AUTHORIZING THE UTILITY OCCUPANCY LICENSE AGREEMENT MADE AND
ENTERED INTO BY AND BETWEEN THE CITY OF DUBUQUE, IOWA AND
DAKOTA, MINNESOTA & EASTERN RAILROAD CORPORATION, DOING
BUSINESS AS CANADIAN PACIFIC
WHEREAS, City is involved in activities to modify storm water drainage by day -
lighting the Bee Branch Creek ("Bee Branch Project") from 15th Street and Sycamore
Street to 24th Street and Washington Street all within the city; and
WHEREAS, City is relocating the sanitary sewer and installing fiber optic conduit
("the Improvements") as part of the Bee Branch Project; and
WHEREAS, the Improvements are .to be installed through the freight railroad
operating property of Canadian Pacific ("CP"); and
WHEREAS, the City intends to install the Improvements using a trenchless, tunneling
method to minimize the impact to CP's railroad operation; and
WHEREAS, City needs authorization from CP to access and install the
Improvements through CP property; and
WHEREAS, CP is willing to authorize the City to install the Improvements under the
terms outlined in Utility Occupancy License No. 4290301 ("the License"); and
WHEREAS, it is in the City's best interest to execute the License in order to proceed
with the construction of the Improvements associated with the Bee Branch Project;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. That the City Manager is hereby authorized to sign the attached Utility
Occupancy License No. 4290301 and any necessary amendments thereto with Dakota,
Minnesota, & Eastern Railroad Corporation, a corporation doing business as Canadian
Pacific for the purpose of proceeding with the construction of the sanitary sewer and
fiber optics conduit through Canadian Pacific property as part of the Bee Branch Creek
Restoration Project.
Passed, adopted and approved this 6th day of July, 2
Attest:
Keviti S. Firnstahl, CMC,ity Clerk
.44-s-111
Roy D.: fol, Mayor
UTILITY OCCUPANCY LICENSE No. 4290301
THIS LICENSE is made effective 1st day of April, 2015 by and between
1. PARTIES:
DAKOTA, MINNESOTA& EASTERN RAILROAD CORPORATION, doing business as Canadian Pacific
with general offices at
900 Canadian Pacific Plaza,
120 South Sixth Street,
Minneapolis, Minnesota, 55402
hereinafter called "CP,"
and
CITY OF DUBUQUE, a government agency with offices at:
50 W. 131"St.
Dubuque, IA, 52001
hereinafter called "Licensee."
CP hereby grants Licensee a license to install, maintain and operate the following the "Utility Line" under
its railroad corridor property and tracks per specifications and location Sections 2.1 and 2.2 following:
2.1 Specifications
Utility Type: Steel Casing for Sanitary Sewer. Fiber Optic Cable, and Electric
Cable
Dimensions: 60 inch Steel Casing outside diameter;36 inch Sanitary Sewer
Installation: installed via trenchless tunneling at a depth of 22 feet
Ancillary Items None
2.2 Location
LabLon, 42.513285/-90.663163
PLSS: NE 1/4 Sec. 24-Twp. 89N - Rge. 2E, 5th P.M.
City, County& State: Dubuque, Dubuque County, Iowa
Milepost, Subdivision Railroad Milepost 44.52 on the Marquette Subdivision (BE#IA 04)
as shown upon Exhibit A attached hereto and made a part hereof (the "Property")
2.3 Fee:
The fee for the rights granted pursuant to this License is $11,500.00 together with other
expenses as more particularly set forth in Section 4 and its subparts.
2.4. Grant of License:
This license is granted subject to all the terms and conditions set forth below and apply to the
existence of the Utility Line on the Property and to all Work and activities upon the Property
that may be performed by Licensee through its employees, agents, and contractors. For the
purposes of this License, the actions and omissions of such employees, agents, and
contractors shall be deemed the actions and omissions of Licensee.
License No. 4290301:Sanitary Sewer&Fiber crossing Page 1 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
2.5 Inclusion of Appendices, Exhibits, Safety Rules/Procedures
The following items shall be a part of this License agreement:
• Exhibits A.1, A.2, and A.3
• Applications or other materials submitted by the Licensee relative to this Utility Line
• Safety rules and procedures provide by CP to this license, irrespective of whether said
items were provided prior or subsequent to the execution of this License.
2.6. Work, License To Be Available At Work Site:
A. "Work," shall mean any activity conducted by Licensee relative to the installation,
maintenance, repair, replacement, relocation, servicing, or removal of the Utility Line
involving entry onto the Property.
B. "Work Site" shall mean the general location of License's activities relative to Work.
Licensee shall keep a copy of this License at the Work site and shall make it available
upon demand by any employee or agent of CP.
3. EFFECTIVE DATE, TERM, TERMINATION
3.1. Effective Date:
The "Effective Date" of this License for documentation purposes shall be April 1, 2015.
Notwithstanding the Effective Date, the rights to granted to Licensee pursuant to this License
shall be effective at the later of the Effective Date, or the date on that this License has been
signed by both parties.
3.2 Term:
This License shall continue in effect until terminated by any of the provisions contained herein.
3.3. Termination
A. By Licensee
This License may be terminated by the Licensee at any time upon Thirty (30) days
advance written notice by Licensee to CP and fulfillment of all of Licensee's applicable
obligations to restore the Property, remove the Utility Line and payment of any required
amounts.
B. By CP:
This License may be terminated by CP in the following circumstances:
i. Breach by Licensee:
If the Licensee shall at any time fail to perform or comply with any provision or fail
to pay, or default on any payment required by this License, and such default or
breach continues for a period of thirty (30) days after written notice thereof by CP
to the Licensee, then CP may terminate this License upon written notice to
Licensee, to be effective no less than 30 days from said to allow time for Licensee
to discontinue its use of the Utility Line and to complete its applicable obligations
for removal of the Utility and restoration of the Property.
ii. Railroad Maintenance or Safety.
CP may terminate this License to be effective Sixty (60) days after written notice to
Licensee in the event that CP determines that the Utility Line poses a safety risk to
railroad maintenance or safety or will interfere with railroad needs. In this event,
CP shall use reasonable efforts to identify a replacement location for Licensee's
Utility Line but in the event that no such replacement location is decided upon,
Licensee shall discontinue use of the Utility Line and complete its applicable
obligations for removal of the Utility Line and restoration of the Property prior to
expiration of said 60 day period.
License No. 4290301:Sanitary Sewer&Fiber crossing Page 2 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
C. Effect of Termination:
Termination of this License shall mean that the Licensee shall no longer have the right to
occupy or use CP's property for the Utility Line and that CP shall have the right to seek
the removal of the Utility Line from its Property and pursue any and all remedies
available to it pursuant to this License or at law. Termination of this Licensee shall not
prejudice the rights of CP. Notice of Termination by either Party shall not terminate
Licensee's liabilities or responsibilities under this License for Utility Line, nor payment of
rent, fees, costs or damages so long as the Licensee's responsibility and obligations for
the Utility Line remain unfulfilled.
4. PAYMENTS
4.1. License Fee.
In consideration of the permissions herein granted, the Licensee shall pay to CP with its
execution of this License the sum of$4,000.00, the "License Fee."
4.2. Utilities.
Licensee shall assume and timely pay for any gas, electrical, telephone, computer, sewer,
water, storm water, waste or trash removal or any other service or commodity connected with
the Work, collectively "Utility Service." If any Utility Service fee is in common with CP or
other parties, Licensee shall be liable for its proportionate share of any such Utility Service
Fee and upon receipt of a bill therefor, promptly pay CP or such other party for its share. It
shall be a default in the terms of this lease if it can be shown that Licensee has not made such
payments within 30 days if due to CP, or within 60 days if payable to any other party.
4.3. Mechanics' And Materialmen's Liens:
If any mechanics' or materialmen's lien, or similar lien, is asserted against the Property, or any
other property of CP, as a consequence of the Work, Licensee shall immediately satisfy,
defend, or obtain the release of such lien, all at Licensee's expense, and Licensee shall
indemnify and defend CP against any Claims arising out of or connected with such lien.
4.4. Additional Charges.
Licensee shall within 30 days of receipt of a bill therefor, pay to CP costs for flagging, track
changes or damage, or other such charges as may be provided by this License or that CP
may reasonably impose in connection with Licensee's Work.
4.5. Due Dates; Penalties; Other Charges
4.5.1. Due Dates
Any item, submission or payment required to be made shall be deemed timely made if
received by the other party on or before the specified due date, or prior to expiration of
the applicable period for compliance, submission or payment.
4.5.2. Late Fees
In addition to any amounts payable by Licensee to CP, Licensee shall pay CP a late fee
for any payment not timely made by Licensee. The late fee shall be at the rate for
overdue accounts set by CP's Accounting Department that is in effect at the time that
any such payment is due. Said late fee shall initially be an amount equal to 1% of the
invoice amount per month.
4.5.3. Fines& Service Fees
In addition to any other amounts payable by Licensee to CP, Licensee shall pay CP for
any bank fines or service incurred by it in connection with the handling, non-payment,
return or currency conversion incurred by CP in connection with processing of any
payment made by Licensee to CP.
License No. 4290301:Sanitary Sewer&Fiber crossing Page 3 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
4.6. Work At No Cost To CP:
The Work completed by Licensee shall be performed at no cost to CP.
5. CONTACT, NOTICES, ETC.
5.1. Contact Persons; Communications:
Communications pursuant to this License shall be directed to the contact persons designated
in Appendix 1 or their designees. Either party may change its contact person, or the
address(es), telephone number, or fax number for the contact person, by notice to the other
party.
5.2. Notices:
Except as otherwise provided in this License, all notices pursuant to this License shall be in
writing and shall be effective upon delivery to the address or fax number of the contact person
for the party to whom notice is being given. If notice is given by fax, the notice shall not be
deemed effective until received in legible form.
5.3. Notification Prior To Beginning Work:
Licensee must notify CPS Engineering contact person (Stated on Appendix 1) by telephone at
least FIVE (5) working days prior to beginning any separate phase of the Work, and again
promptly after such phase of the Work has been completed, "Working Days" do not include
Saturdays, Sundays and Holidays observed by CP.
6. PERMITTED & PROHIBITED USES; RIGHTS OF CP
6.1. Permitted Uses:
6.1.1. The Work.
The use of Property by Licensee shall be limited to the completion of the Work set forth
in Section 2.6., or such other kind of activities as may be approved by CP in writing.
6.1.2. Government Authorities.
Licensee may permit governmental authorities with jurisdiction over the Work to enter
the Property for the purpose of inspecting or monitoring the Work. Whenever possible,
Licensee shall advise CP (by telephone or other means calculated to bring the matter to
CPS immediate attention) prior to permitting such governmental authorities to enter the
Property for such purposes. The actions and omissions of such governmental
authorities while on the Property for such inspections and monitoring shall be deemed
the actions and omissions of Licensee. Licensee is not authorized to permit
governmental authorities to enter the Property for any other purpose.
6.2. Prohibited Uses and Activities.
The Licensee shall not use, occupy or permit the Property to be used for any purpose, activity
or improvement except as provided in this License or as may be approved of in writing by CP.
Specifically:
6.2.1. Advertising
Licensee shall not permit any advertisements or signs upon the Property,
6.2.2. Use of Hazardous Substances
Licensee shall not, without prior written disclosure to and approval by CP, Use or
authorize the Use of any Hazardous Substance on the Property, including installation of
any above or underground storage tanks, subject thereto, the Licensee shall arrange at
its own cost for the lawful transportation and off-site disposal of any and all Hazardous
Substances that it shall Use or generate,
License No. 4290301:Sanitary Sewer&Fiber crossing Page 4 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
6.2.3. Use of Premises for waste treatment or as storage or disposal facility
Licensee shall not cause or allow the Property or any of CPS adjacent property to
become a hazardous waste treatment, storage or disposal facility within the meaning of,
or to otherwise bring any such property within the ambit of the Resource Conservation
and Recovery Act, 42 U.S.C. §6901 et seq. or any similar state statute or local
ordinance, or
6.2.4. Subleasing is prohibited.
Licensee shall not sublease the Property or the permissions or rights herein granted in
any manner or form.
6.3. Reservations and Rights of CP:
6.3.1. Railroad Activities Take Priority over Work
All Work by Licensee shall always and all times be subordinate to the needs of CP in
connection with the operation and movement of railroad trains and equipment, and the
repair of railroad track, structures, communications and appurtenances thereto.
6.3.2. Reservation of prior and future uses not inconsistent with Licensee's activities.
The rights herein granted to Licensee are subject to the rights granted in all other
licenses, permits and easements for tracks, roads, walkways, poles, wires, pipelines,
sewers, billboards and other improvements that exist or may be placed upon, across,
above or underneath the Property by CP, or its employees, agents, licensees, grantees,
representatives or invitees. Further, CP reserves unto itself the right to place (or to give
others the right to place) additional tracks, roads, walkways, poles, wires, pipelines,
sewers and billboards upon, across, above or underneath the Property in any manner
that does not unreasonably interfere with Licensee's Utility Line.
6.3.3. Monitoring
CP may elect to be present during the conduct of the Work and to monitor same. The
cost of such monitoring shall be charged to Licensee.
7. COVENANTS, CONDUCT& RESPONSIBILITIES
7.1 Definitions
7.1.1 "Claim" or "Claims" means any and all liabilities, suits, claims, counterclaims, causes of
action, demands, penalties, debts, obligations, promises, acts, fines, judgments,
damages, consequential damages, losses, costs, and expenses of every kind (including
without limitation any attorney's fees, consultants' fees, response costs, remedial action
costs, cleanup costs and expenses which may be related to any Claims),
7.1.2 "Environmental Law" or "Environmental Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §
9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.,
the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., the Clean Water Act,
33 U.S.C. '§1321 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq., all as amended from time to time,
and any other federal, state, local or other governmental statute, regulation, rule, law,
ordinance, order or decree dealing with the protection of human health, safety, natural
resources or the environment now existing or hereafter enacted,
7.1.3 "Hazardous Substance" or "Hazardous Substances" means any pollutant,
contaminant, hazardous substance or waste, solid waste, petroleum product, distillate,
or fraction, radioactive material, chemical known to cause cancer or reproductive toxicity,
License No. 4290301:Sanitary Sewer&Fiber crossing Page 5 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
polychlorinated biphenyl or any other chemical, substance or material listed or identified
in or regulated by any Environmental Law,
7.1.4 "Release" or "Released" means any actual or threatened spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or spreading of any Hazardous Substance into the environment, as
"environment" is defined in CERCLA,
7.1.5 "Response" or "Respond" means action taken in compliance with Environmental Laws
to correct, remove, remediate, cleanup, prevent, mitigate, monitor, evaluate, investigate,
assess or abate the Release of a Hazardous Substance,
7.1.6 "Use" means to manage, generate, manufacture, process, treat, store, use, re-use,
refine, recycle, reclaim, blend or burn for energy recovery, incinerate, accumulate
speculatively, transport, transfer, dispose of, or abandon.
7.2 Investigation; Compliance with Laws; Safety Requirements.
7.2.1 Tenants and Licensees in possession of Property.
Before entering the Property, Licensee shall secure the consent of all persons or entities
who are using or occupying any portion of the Property. CP will cooperate with Licensee
to obtain consent from any such person or entity who unreasonably withholds consent.
7.2.2 Underground Utilities And Structures:
a. Licensee shall be responsible for determining the location of all underground
utilities (electric lines, telephone lines, gas lines, steam lines, sewer lines, water
lines, fiber optic cables, pipes, wires, and the like) and underground structures.
b. Licensee shall call CP ONE CALL at 1-888-625-8702 a minimum of 5 Working
Days prior to commencing any excavation or boring on the Property.
C. CP will cooperate with Licensee to identify the location of underground utilities and
structures known to CP, but such cooperation shall not relieve Licensee from its
primary responsibility to determine the locations of such utilities and structures.
7.2.3 Permits And Licenses;Compliance With Laws:
Licensee shall secure, at no expense to CP, any permits or licenses required in
connection with the Work and shall comply with all laws applicable to the Work and the
use and operation of the Utility Line, including (but not limited to) any laws, standards,
regulations, and permit requirements relating to environmental pollution or contamination
or to occupational health and safety. Licensee shall indemnify and defend CP against
any and all Claims arising out of or connected with the violation of any law by Licensee
while on or about the Property.
7.2.4 Compliance With CP Safety Requirements; Licensee's obligation to ensure
possession of a copy of CP Safety Rules
a. While on the Property, Licensee shall comply with the safety requirements of CP,
as such requirements may be amended from time to time during the duration of the
Work, all at no expense to CP. CPS safety requirements are set forth in a
document titled "MINIMUM SAFETY REQUIREMENTS FOR CONTRACTORS
WORKING ON RAILWAY PROPERTY" and in CP 's current safety handbook,
"CP Safety Rules." Typically a copy of CP Safety Rules are provided with the
Licensee's initial application for the Utility Line. Additional or updated copies of
CP Safety Rules can be obtained in electronic form by contacting CP's
License No. 4290301:Sanitary Sewer&Fiber crossing Page 6 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
Engineering contact set forth in Appendix 1. Licensee agrees that it has a copy of
CP Safety Rules and agrees that
IT IS LICENSEE'S RESPONSIBILITY TO OBTAIN THE MOST UP-TO-DATE
VERSION OF CP SAFETY RULES
and ensure that any person performing any of the Work for or on behalf of
Licensee shall comply with the CP Safety Rules.
7.3 Work In Close Proximity To Railroad Operations; Drainage:
7.3.1 Interference With Railroad Operations:
Licensee shall keep CP fully apprised of its proposed activities on the Property so as to
prevent any interference with the operations of CPS trains or equipment (or trains or
equipment of others) operating on or near the Property.
7.3.2 Clearance;
No work shall be done or any equipment or other obstruction placed over or within 25
feet laterally of the centerline of any track without advance notification to CP prior to
performing such work or placing such equipment or obstruction.
7.3.3 Flagging:
Licensee must make arrangements with CP for such flagging or watchman service as
CP deems necessary for the protection of railroad traffic. All such flagging and
watchman service shall be provided by CP at Licensee's expense. The fact that CP
provides such service shall not relieve Licensee from any liability under this License.
CPS labor and material additives are subject to change without notice to Licensee, and
CP shall be reimbursed based upon its labor and material additives actually in effect as
of the date of such service.
7.3.4 Certain Work Close To Track Not Permitted; Lateral Support:
a. Unless otherwise agreed to in writing by CP, excavations, borings, wells, pits, test
holes, probe sites, and the like shall not be located closer than 25 feet from the
centerline of the nearest railroad track on or adjacent to the Property nor shall it
take or allow any action upon the Property that would materially impair the lateral
or subadjacent support of adjacent lands or railroad tracks.,
b. Unless otherwise agreed to in writing by CP, drilling and excavating equipment and
related equipment shall not be located closer than 25 feet from the nearest rail of
any such track,
C. In the event that CP permits excavations, borings, wells, pits, test holes, probe
sites, or the like in close proximity to tracks, embankments or other features
providing lateral or subadjacent support to land or tracks, then notwithstanding
anything to the contrary in this license, Licensee shall be responsible for designing
and constructing at no cost to CP any measure that is required to prevent the
collapse, erosion or impairment to said land or tracks.
License No. 4290301:Sanitary Sewer&Fiber crossing Page 7 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
7.3.5. Storm Water
Licensee shall not, without the advance written approval of CP, make any changes to
the Property that would either increase the historic flow rate of storm water from the
Property or create an impediment to the historic flow of storm water to the Property.
Unless otherwise agreed in writing, Between CP and the Licensee it is understood and
agreed that Licensee shall at Licensee's cost and expense be liable to CP for the
construction, maintenance, repair and replacement upon the real property or other land
not belonging to Grantor such storm sewer lines, manholes, mains, rip rap, boulders,
wing walls, ditches and related
7.3.6. Fencing
If deemed necessary and prudent to the safety of railroad operations, employees and
the public, the Licensee shall, at no cost to CP, construct and maintain during any Work
the fencing of a quality and in the locations that CP may direct. Following completion of
the Work, the Licensee shall remove the fencing, remove any post footings or concrete,
and fill and tamp any post holes with clean fill material.
7.4 Conduct
7.4.1. Property clean, safe and free from nuisances
During any Work the Licensee shall not permit the existence of any nuisance upon the
Property and shall at all times keep the Property in a proper, clean, safe and sanitary
condition, and free from accumulations of waste materials, debris or refuse.
7.4.2. Release of Hazardous Substances:
The Licensee shall not cause or allow the Release or threat of Release of any
Hazardous Substance on, to, or from the Property.
7.4.3. Response Actions
The Licensee shall promptly take all necessary action in Response to any Release or
Use of a Hazardous Substance at the Property caused by, or attributable to, any act or
omission of the Licensee (or the Licensee's employees, agents, representatives or
invitees) that could:
a. give rise to any Claim under any Environmental Law,
b. cause a public health or workplace hazard, or
C. create a nuisance.
7.5. Required Notices/Disclosures
7.5.1 Transportation and Disposal Contracts
The Licensee shall, upon written request by CP, provide CP with copies of transportation
and disposal contracts and manifests for Hazardous Waste, any permits issued under
any Environmental Laws, and any other documents demonstrating that the Licensee has
complied with all Environmental Laws relating to the Property
7.5.2 Releases or Suspected Releases
The Licensee shall promptly notify CP of any actual or suspected Release of any
Hazardous Substance on, to, or from the Property, regardless of the cause of the
Release.
7.5.3. Notices, summons citations, etc.
The Licensee shall promptly provide CP with copies of all summons, citations, directives,
information inquiries or requests, notices of potential responsibility, notices of violation or
deficiency, orders or decrees, claims, causes of action, complaints, investigations,
judgments, letters, notices of environmental liens or Response actions in progress, and
other communications, written or oral, actual or threatened, from the United States
License No. 4290301:Sanitary Sewer&Fiber crossing Page 8 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
Environmental Protection Agency, the United States Occupational Safety and Health
Administration, or other federal, state or local agency or authority, or any other entity or
individual, concerning:
a. any Release of a Hazardous Substance on, to or from the Property,
b. the imposition of any lien on the Property, or
C. any alleged violation of or responsibility under any Environmental Law relating to
the Property.
7.5.4. Other Reports
Licensee shall, at CP's option, provide CP, at no cost to CP, a copy of any other report,
summary or written test results, collectively "Report," pertaining to the Work. If any such
Report is to be filed or made available to any governmental agency acting in a regulatory
capacity, then Licensee shall also give CP a reasonable time (not less than 5 Working
Days) to review and comment on a draft of such Report and when preparing any such
final Report pertaining to the Work, Licensee or its contractor shall give due
consideration to CPS comments with respect to the draft of that Report. Licensee will
promptly provide CP with a copy of any final Report.
7.6. CP's right to Participate in Response Actions
Following receipt of any notice, order, claim, investigation, information request, letter,
summons, citation, directive, or other communication identified in 7.5.3, Licensee shall notify
CP of and permit CP to participate in any and all investigations, telephone conferences,
settlement discussions, remediation plans and all other interactions, direct or indirect, with
governmental or regulatory officials, and Licensee shall take all action necessary to ensure
that any indemnification, release, waiver, covenant not to sue, or hold harmless agreement
benefiting Licensee and arising out of such activities, whether from a governmental or
regulatory entity or from a private entity, also benefits CP to at least the same extent as
Licensee.
7.7. Restoration of Property;
Upon completion of the Work or termination of this License, whichever occurs first, Licensee
shall remove any debris resulting therefrom and shall restore the Property to as close as
reasonably possible to the condition it was in prior to the commencement of the Work (or such
other condition as is satisfactory to CP ). All excavations are to be backfilled and tamped. All
borings shall be backfilled with grout. Drill cuttings shall not be used as backfill. Licensee
shall dispose of all drill cuttings, soil and sediment samples, purge water, dewatering effluent,
and water samples and all excess excavation material in a manner acceptable to CP and in
accordance with all applicable laws, all at no expense to CP.
8. LIABILITY
8.1. Damage To Tracks, Facilities, And Equipment:
If any tracks, facilities, or equipment owned, used, or maintained by CP are damaged in
connection with the Work, CP shall repair (or arrange for the repair of) such damage and
Licensee shall pay the full cost of such repair within 30 days after CP shall tender a bill
therefor.
8.2. Assumption Of Risk:
Licensee is fully aware of the dangers of working on and about railroad property and railroad
operations and knowingly and willingly assumes the risk of harm (e.g., injury to or death of
persons and damage to or destruction of property) that may occur while on and about the
Property. Without in any way limiting the scope of the preceding sentence, Licensee
assumes the risk that the Utility Line and any Work or appurtenances thereto on the Property
may be disturbed, damaged, or destroyed by CP or third persons, and except where arising
License No. 4290301:Sanitary Sewer&Fiber crossing Page 9 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
from the intentional malicious conduct of CP or its employees, agents, or invitees, Licensee
shall not make any claim against CP on account of same, even if such disturbance, damage,
or destruction arises from the negligence of CP or its employees, agents, or invitees.
Licensee assumes full responsibility for protecting its installations and personal property from
theft and vandalism while such installations and personal property are on the Property.
8.3. Indemnity:
As used in this License, "Indemnified Parties" means the following businesses and their
officers, directors, employees, and agents: Soo Line Railroad Company, Delaware and
Hudson Railroad Corporation, Inc., Dakota, Minnesota and Easter Railroad Corporation ,Soo
Line Corporation, Canadian Pacific Railway Company, Wyoming Dakota Railroad Properties,
Inc., any company doing business as Canadian Pacific Railway, and any railway company or
contractor operating trains or rail equipment upon railway tracks in close proximity to the
Property or the Utility Line, together with the parent companies, subsidiaries, and affiliated
companies of all of the foregoing.
To the maximum extent permitted by applicable law, Licensee shall indemnify and defend the
Indemnified Parties (as defined below) against all claims, demands, actions, suits, judgments,
losses, damages (including, but not limited to, lost profits and other actual, compensatory,
direct, consequential, punitive, and exemplary damages), expenses, penalties, fines,
sanctions, court costs, litigation costs, and attorneys' fees (collectively, Claims) arising out of
or relating to any destruction of (or damage to) any property or natural resource, any injury to
(or death of) any person, or any environmental pollution or contamination whatsoever, where
such destruction, damage, injury, death, pollution, or contamination actually or allegedly
arises in whole or in part from the presence of the Utility Line on the Property or any Work
connected therewith, or any action or omission of Licensee while on or about the Property
pursuant to this License, or the exercise by Licensee of the rights and permissions granted by
this License.
9. INSURANCE.
Prior to commence of any Work, Licensee shall procure and maintain in effect (or shall cause its
contractor to procure and maintain in effect), the insurance coverages set forth in Appendix 2. The
insurance coverage obtained pursuant to License and its appendices shall in no manner restrict or
limit the liabilities assumed by Licensee under this License.
10. ENTIRE LICENSE
10.1. Survival Of Indemnity Provisions:
The indemnification provisions of this License shall survive its expiration or termination.
10.2. Mere License:
The permissions encompassed by this License are a mere license to use the Property for the
Utility Line and does not create any estate or interest in Licensee in the Property.
10.3. No Warranty Of Title:
CP does not warrant that it has good title to the Property.
10.4. Assignment; Binding Effect:
This License may not be assigned by Licensee without the advance written consent of CP.
Subject to the preceding sentence, this License shall be binding upon, and inure to the
benefit of, the parties' respective successors and assigns.
License No. 4290301:Sanitary Sewer&Fiber crossing Page 10 of 11 Dakota, Minnesota&Eastern Railroad Corporation
Dubuque, Dubuque County, IA City Of Dubuque Licensee
Form 302.07/13.std
10.5. Governing Law:
This License shall be construed and interpreted in accordance with the laws of the state of
Iowa, without reference to the choice of law rules of that state.
10.6. Entire License:
This License is the full, complete, and entire License of the parties with respect to the
subjects hereof, and any and all prior writings, representations, and negotiations with respect
to those subjects are superseded by this License.
10.7. Headings:
The headings used in this License are provided solely as a convenient means of reference.
They are not intended to, and do not, limit or expand the purpose or effect of the paragraphs
to which they are appended. The headings shall not be used to construe or interpret this
License.
10.8. Ownership Of Installations:
As between CP and Licensee, and unless CP agrees in writing to assume ownership thereof,
any Utility Line placed on the Property pursuant to this License shall be and remain the
property of Licensee, and Licensee shall be responsible for the proper maintenance and
closure thereof;
10.9. Singular And Plural:
As used in this License, the singular form of a word includes the plural form of that word, and
vice versa, and this License shall be deemed to include such changes to the accompanying
verbiage as may be necessary to conform to the change from singular to plural, or vice versa.
10.10. Duplicate Copies & Counterparts.
This License may be executed in counterparts, which together shall constitute one and the
same document. The parties may execute more than one copy of this License, each of which
shall constitute an original.
11. SIGNATURES.
THE PARTIES HERETO have executed this License as evidence of their agreement to the terms herein.
By
Its
Date
CITY OF DUBUQUE
City Manager
717//
License No. 4290301: Sanitary Sewer & Fiber crossing
Dubuque, Dubuque County, IA
Form 302.07/13.std
DAKOTA, MINNESOTA & EASTERN
RAILROAD CORPORATION
doing business as Canadian Pacific
By
Its Director Real Estate & Facility Mgmt- U.S.
Date
�-,o -/5
Page 11 of 11 Dakota, Minnesota & Eastern Railroad Corporation
City Of Dubuque Licensee
CANADIAN PACIFIC
LICENSE NO. 4309001 APPENDIX 1 CONTACTS
1. RAILROAD CONTACTS:
A. Real Estate: Processing of Permit, rental payments
Address Contact Info
Phone: 612 904-6143
Canadian Pacific Fax 612 904-6147
Real Estate US—Utility Permits Email: Real Estate - US c r.ca
900 Canadian Pacific Plaza
120 South Sixth Street
Minneapolis, Minnesota 55402
B. Risk Management: Submittal of Insurance Coverage Renewals.
Address
Canadian Pacific
Risk Management Department
7550 Ogdendale Road
Calgary, Alberta T2C 4X9
C. Engineering: Application, Review of Technical Specifications
Address Contact Info
Canadian Pacific Name: Curt Whelan
900 Canadian Pacific Plaza Title Director- Projects
120 South Sixth Street Phone: 612 904-5904
Minneapolis, MN 55402 Fax 612 904-5917
Email: Curt Whelan c r.ca
D. Scheduling of Flagging:
The following must be contact no less than 5 Working Days (excludes Saturday, Sunday and holidays
observed by CP) prior to date on that Work is to be performed.
Otis Goodman, contact info in Section B.
E. Utility Locates
CP: CP Call-Before-You-Dig 1-866-291-0741: Must be called no less than 5 Working
Days (excludes Saturday, Sunday and holidays observed by CP) prior to date on that
Work is to be performed.
Local: The Licensee must also contact the local Call-Before-You-Dig service
The national number for utility locating is 8-1-1.
In Iowa, the utility locating service is called Iowa One Call and, in addition to dialing 8-1-
1, call be reached at 1-800- 292-8989 or at www.iowaonecall.com.
CP does not guarantee the accuracy of the foregoing information. The License is
ultimately responsible for contacting and complying with local utility locating
requirements and determining the proper contacts or manner of doing so.
LICENSE NO. 4309001 APPENDIX 1 CONTACTS
2. LICENSEE CONTACTS:
A. Licensee Information
THIS IS THE NAME TO BE SHOWN IN THE LICENSE AGREEMENT.
Licensee: City of Dubuque
Type of Entity: Municipal Corporation State of Formation: Iowa
Mailing Address: 50 W. 13 In Street
Dubuque, IA, 52001
Delivery
Address:
f different
Billing Address
(if different)
Telephone No. 563-589-4110 Web Site: www.cityofdubuque.org
B. Licensee Contact
THIS IS THE INDIVIDUAL TO WHOM CP SHOULD SEND DOCUMENTS AND OTHER
CORRESPONDENCE IN CONNECTION WITH THE LICENSE.
Name: Michael C. Van Milligen Address.
Company: City of Dubuque Write "Same" if same as above
Title: City Manager Same
Office Number: (563) 589-4110
Fax Number 563-589-4149
Mobile Number:
Email: ctymgr@cityofdubuque.org
C Construction Contact
THIS IS THE INDIVIDUAL TO WHOM CP SHOULD INTERACT IN CONNECTION WITH ANY
WORK WITH THE UTILITY LINE
Name: Deron Muehring Address.
Company: City of Dubuque
Title: Civil Engineer II Same
Office Number: 563-589-4276
Fax Number: 563-589-4205
Mobile Number: 563-599-3117
Email: dmuehrin@dubuque.org
LICENSE NO. 4309001 APPENDIX 1 CONTACTS
D. Additional Contact
Optional information if needed.
Contact for:
Name: Address.
Company:
Title:
Office Number:
Fax Number:
Mobile Number:
Email:
E. Emergency Contact:
In the event that there is an emergency affecting the Utility Line, is there an additional contact that
CP could attempt to reach?
Name: Steve Sampson-Brown
Office Number: 563-589-4272
Mobile Number: 563-599-9498
mail: sbrown@cityofdubuque.org
Insurance Requirements
1. General Insurance Requirements.
The following requirements apply to all insurance coverages required by the License.
1.1. Insurance is a prerequisite for the Work: Licensee shall not enter the Property until all of
the required policies have been approved in writing by CP.
1.2 Evidence of Insurance. No less than Five (5) Working Days before Licensee or its
contactor enters the Property or commences any Work, CP must receive and approve the
certificates of insurance evidencing the insurance coverages set forth in this Appendix 2.
1.3 Thirty Day Notice of Cancellation. All policies shall be endorsed to require that CP be given
not less than 30 days written notice in advance of cancellation or termination of the policy or of
any change or amendment to the policy that restricts or reduces coverage. Notices shall be
sent to the addresses set forth in Appendix 1 for the Real Estate Department and also the
Risk Management Department.
1.4 Except for Automobile and Workers Compensation policies, each policy of insurance shall
include the following endorsement upon the certificate, or within the binder, policy or other
contractual evidence signed by the insurer and in form acceptable to CP:
"It is agreed that the policy or policies of insurance evidenced by this certificate
covers the liability assumed by the insured in connection with work pursuant to the
License Agr. 4290301 dated 1st day of April, 2015 by and between City of Dubuque
and Soo Line Railroad Company encompassing a Sanitary Sewer pipeline crossing
at Dubuque, Dubuque County, IA, including work upon railroad property, within
railroad right of way and in close proximity operating railroad tracks."
1.5 Cross Liability (severability of interest endorsements) Except for automobile coverage, all
policies, shall be endorsed with a cross liability (severability of interest) endorsement in
substantially the following form:
'This policy shall insure each person, firm, or corporation hereunder in the same manner
and to the same extent as if a separate policy had been issued to each, but the inclusion
herein of more than one insured shall not operate to increase the limits of the insurance
company's liabilities."
1.6 Additional Insureds: Waiver of Subrogration. The policy shall be endorsed to add the following
as additional insureds:
Soo Line Railroad Company, Soo Line Corporation and Canadian Pacific Railway Company,
(collectively, the Protected Parties). The policy shall also be endorsed to waive subrogation
rights against the Protected Parties.
1.7 Coverage amounts subject to increase. The Parties agree that Utility Lines can have a long
useful life and that the insurance coverage limits initially set forth in this License may not be
adequate during entire life of the Utility Line. Accordingly, the insurance coverages set forth
herein shall be subject to change relative change in CP standards. The License shall not be
required to comply with increased coverage limits until CP provides the Licensee with 90 days
advance written notice of a change in coverage limits, or following notice by CP in connection
with any Work by the Licensee that requires flagging.
1.8 Renewals. Evidence of renewal of insurance coverage should be sent to the Risk
Management contact information set for in Appendix 1.
1.9 Copies of Policies. CP reserves the right to demand a certified copy of any required policy,
and Licensee or its contractor shall provide such copy within 10 Working Days (excludes
Saturdays, Sundays and holidays observed by CP) after CP shall give notice to Licensee
demanding such copy.
1.10 Insurers to be acceptable to CP. All of the required policies shall be issued by insurers
acceptable to CP and shall be acceptable to CP in both form and substance
1.11 Policies obtained by Contractors and Sub-contractors. If any comprehensive general liability
and automobile policies are procured by Licensee's contractor, Licensee shall be added as an
additional insured party under such policies. If the contractor uses a subcontractor, the
contractor shall provide the required policies and shall, in addition, either require the
subcontractor to provide insurance equivalent to that described herein or obtain endorsements
to the contractor's policies naming the subcontractor as an additional insured party. If a
subcontractor uses a sub-subcontractor, the sub-subcontractor shall either provide insurance
equivalent to that required of the subcontractor or shall be named as an additional insured
party on the contractor's or subcontractor's policies.
1.12 Lapse in insurance coverage. In the event any required policy lapses, CP shall have the
option of immediately suspending Work or use of the Utility Line. Additionally, any lapse in
required insurance shall be deemed a breach of the License and grounds for termination as
provided in the License.
1.13 Insurance does not limit liability. The insurance coverage obtained pursuant to section 9 and
its sub-sections shall in no manner restrict or limit the liabilities assumed by Licensee under
this License.
2. Required Insurance Policies and Limits of Coverage.
Licensee shall obtain and maintain in full force and effect the following policies of insurance:
2.1. Comprehensive General Liability Insurance— Normal Operation of Utility Line:
So long as the Utility remains in place pursuant to this License in the status of normal
operation, Licensee shall obtain Comprehensive general liability insurance with a policy limit
of not less than $2,000,000 per occurrence and $5,000,000 aggregate for bodily injury, death,
and damage to or destruction of property (including the loss of use thereof).
The policy will include those policy extensions commonly referred to as broad form completed
operations, contractor's protective, collapse, and underground damage. The policy shall by
its wording or by endorsement insure those liabilities and obligations which this License
contemplates will be assumed by Licensee, including liabilities and obligations to indemnify
the Indemnified Parties (defined in Section 8.3).
2.2 Comprehensive General Liability Insurance— Periods of Work:
Not Applicable.
2.3 Automobile Liability and Property Damage Insurance:
During any period in that Work is to be performed on the Utility Line, Licensee or its
contractor performing the Work, shall obtain Automobile liability and property damage
insurance in an amount not less than $2,000,000, personal injury and property damage
combined, covering the ownership, use, and operation of any motor vehicles and trailers
licensed for use on public highways which are owned, leased, or controlled by Licensee or its
contractor and used in connection with the Work
2.4 Workers Compensation Insurance:
During any period in that Work is to be performed on the Utility Line, Licensee or its
contractor performing the Work, shall obtain Workers compensation insurance that meets the
requirements of Iowa state law.
2.5 Railroad Protective Liability Insurance:
During any period in that Work is to be performed on the Utility Line, Licensee or its
contractor performing the Work, shall obtain Railroad protective liability insurance
(occurrence form), in the name of Soo Line Railroad Company and Canadian Pacific Railway
Company, with limits of no less than $2,000,000 per occurrence and $6,000,000 aggregate
for personal injury and property damage.
2.6 Environmental Pollution Impairment Liability Insurance:
Not Applicable.
16..01
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4. CONSTRUCTION EQUIPMENT AND MATERIALS SHALL NOT CROSS THE
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5. CONTRACTOR SHALL STOCKPILE TRENCHLESS EXCAVATION
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