Signed Contract_Canadian Pacific Railroad Agreement for Bee Branch RR Culverts Copyrighted
August 7, 2017
City of Dubuque Consent Items # 28.
ITEM TITLE: Signed Contracts
SUMMARY: Area Residential Care, Inc. for vocational Services;
Canadian Pacific Railroad Amendment to Service
Agreement for Bee Branch Creek Railroad Culverts; Four
Mounds Foundation for use of City-owned building at 1101
Central Avenue; Iowa Department of Health Memorandum
of Understanding for surveillance of mosquito-borne
diseases in Iowa.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File
ATTACHMENTS:
Description Type
ARC Vocation Services Agreement Supporting Documentation
Candadian Pacific Railroad Culverts Amendment Supporting Documentation
Four Mounds Foundation Agreement Supporting Documentation
Iowa Department of Health MOU Supporting Documentation
THE CITY OF DubuqueDUB EE�
All-America City
Masterpiece on the Mississippi 11111.1
2007-2012.2019•2017
TO: Michael C. Van Milligen, City Manager
FROM: Gus Psihoyos, City Engineer
i
SUBJECT: Bee Branch Railroad Culverts, Amendment to Service Agreement with
Canadian Pacific Railway
CIP#2642690, PROJECT#1X0004
DATE: July 26, 2017
h
INTRODUCTION
The purpose of this memorandum is to amend the Service Agreement between the City
of Dubuque and Canadian Pacific Railway.
BACKGROUND
In September of 2012, the City entered into a non-binding Memorandum of
Understanding with Dakota, Minnesota, & Eastern Railroad Corporation, doing business
as Canadian Pacific (CP). The MOU outlined that the City of Dubuque would "reimburse
the Railroad for all reasonable and necessary actual costs and expenses incurred by
the Railroad that are in any way related to the planning, design, and/or construction of i
the (City's Project through the Railroad's property) including, without limitation, any
costs or expenses related to engineering, surveying, drawing, negotiation, review, track C
work, monitoring well abandonment, flagman protection costs, design of new train
control signals, equipment, supplies, insurance, personnel, and incidental services
associated with the items hereinabove specified."
f
In September of 2012, the City Council adopted Resolution 262-12 authorizing the City
Manager to enter into a Service Agreement with CP and any necessary amendments
thereto with the CP for the purpose of advancing the design of the City's drainage
E
improvements through the CP's railroad property.
In March of 2015, the City and CP executed the First Amendment to the Service
Agreement, setting a maximum reimbursable expense limit of $50,000 and establishing
that the agreement would expire on December 31, 2015 unless extended by mutual
agreement.
DISCUSSION
Because the Service Agreement will expire unless extended by mutual agreement, the
City's Legal Department worked with Canadian Pacific to draft the Second Amendment
to the Service Agreement attached hereto. Per the proposed amendment, the
agreement will expire on December 31, 2018.
6
ACTION TO BE TAKEN
I respectfully request execution of the attached Second Amendment to the Service
Agreement with Dakota, Minnesota, & Eastern Railroad Corporation, doing business as
Canadian Pacific.
Prepared by Deron Muehring
cc: Crenna Brumwell, City Attorney
Barry Lindahl, Senior Counsel
Steve Brown, Project Manager
Deron Muehring, Civil Engineer
n
I�
AMENDED AND SUBSTITUTED
SERVICE AGREEMENT
This Amended and Substituted Service Agreement ("Service Agreement") made
and entered into by and between the City of Dubuque, Iowa ("City"), and Dakota,
Minnesota& Eastern Railroad Corporation, doing business as Canadian Pacific ("CP").
WITNESSETH:
WHEREAS, City is involved in activities to modify storm water drainage by day
lighting the Bee Branch Creek ("Bee Branch Project") from 15'11 Street and Sycamore Street
to 24'11 Street and Washington Street all within the City;
WHEREAS, City is completing design engineering of the Bee Branch Project(the
"Design Engineering");
WHEREAS,the proposed Bee Branch Project,including improvements proposed by
the City through CP's property("Proposed Improvements"), is part of phase 7 of the multi-
phase BeeBranchFlood Mitigation Project. The Proposed Improvements are to be
constructed between the downstream Lower Bee Branch Creek, in place since 201 t, and the
upstream Upper Bee Branch Creek, currently tinder construction;
WHEREAS,the Proposed Improvements include the construction of six (6)8-foot
diameter steel culverts with inlet and outlet headwalls,(defined herein as the "Steel Culverts")
next to the e9f§ting Canadian Pacific dual box culverts(defined herein as"CP Culverts")that
have been in place for several decades. The purpose of the Steel Culverts is to provide for the
free flow of storm water through Canadian Pacific's right-of-way;
WHEREAS,the Proposed Improvements also include the construction of five (5) 12-
foot by l0-foot reinforced concrete box culverts(defined herein as the"Box Culverts")to
provide for the free flow of water from the Upper Bee Branch Creek north of Garfield Avenue
through.CP's property at 506 Garfield Avenue to a proposed reinforced concrete transition
structure (defined herein as the "Transition Structure")that will allow for the flow to
"transition" from the Box Culverts to the Steel Culverts and CP Culverts; and
WHEREAS, the Proposed Improvements also include the construction of a headwall
structure at the downstream end of the Steel Culverts and CP Culverts where the water will
flow into the Lower Bee Branch.
WHEREAS, the freight railroad operating property and freight rail operations of CP
will be impacted by the Bee Branch Project;
WHEREAS, the City needs access to CP's property and records,and input from CP
for Design Engineering and ultimately requires CP's written approval of the Design
Engineering plans;
WHEREAS, CP is willing to cooperate with City's Design Engineering work,
provided that CP is -hilly reimbursed for such services and City is agreeable to proceeding on
that basis;
WHEREAS, City and CP have signed a Memorandum of Understanding dated
September 7, 2012 concerning their mutual roles and objectives for the Bee Branch Project;
WHEREAS,the scope of work for the City's proposed construction on CP's property as
identified in the Memorandum of Understanding has changed; Il
WHEREAS,City and CP executed a Service Agreement on or about October 4, 2012
and a First Amendment to Service Agreement on or about March 12,2015;
WHEREAS,the City has paid CP $100,499.56 for Reimbursable Expenses for Services
(as such terms are defined below)incurred as of December 30,2014;
WHEREAS,the Service Agreement expired on December 31,2015;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
SECTION 1. The Parties shall perform the following services. The term"Services"
means all services the Parties are required to provide under this Set-vice Agreement for Design
Engineering. The Services specifically exclude the transfer of real property rights,
construction, operation and maintenance in connection with implementation of the Bee
Branch Project.
(I) SERVICES BY CITY. City shall furnish or cause to be furnished,at its
sole expense, all the Services required to perform and complete:
a. All required Design Engineering for the Bee Branch Project, other than
that described in paragraph(11) below;,and
b. Incidental services necessary to complete the items hereinabove specified.
(11) SERVICES BY CP. CP shall furnish or cause to be furnished, at the request
and expense of City,the following services required for City to perform and
complete the Design Engineering:
a. Physical access to CP property through the issuance of a release or right
of entry agreement as appropriate based on the scope of City's work.;
b. Flagging protection as required for any work pursuant to this
Agreement, including without limitation in Support Of Survey or
geotechnical work;
c. Access to property and engineering records;
d. CP minimum engineering design requirements for freight rail
infrastructure and other technical guidance;
e. Review of Design Engineering plans excluding review of structure plans
and calculations;
f. Incidental services, including supervisory and legal expenses,
necessary to complete the items hereinabove specified.
CP will make its best effort to provide the Services, as they are requested by City, in a
timely manner.
The Parties agree the Reimbursable Expenses for the CP Services set forth above
incurred after December 30,2014 shall not exceed$50,000, unless this Agreement is
.otherwise amended. Reimbursement for the Services and Reimbursable Expenses will be on
the basis of actual cost of the Services and Reimbursable Expenses to CP.
CP may perform the Services through the use of its own forces, CP's preferred
service providers, or other providers satisfactory to CP. All Services will be performed in
accordance with CP standards. CP must approve the design of all improvements to be
constructed on CP property. -
The Parties acknowledge the above-stated $50,000 limit for the Reimbursable
Expenses is based on incomplete information as to the level of effort required of CP and
subject to change,through an amendment to this Agreement. Further, at City's request, this
Agreement may be amended to include CP review of structure plans and calculations and
other additional services. Unless this Agreement is otherwise amended, CP shall have no
obligation to provide additional Services after the above-stated$50,000 limit for
Reimbursable Expenses is reached.
SECTION 2. CP shall be entitled to payment for the actual reasonable and necessary
costs of CP Services("Reimbursable Expense-."), subject to the above-stated $50,000 limit.
SECTION 3. In the event that delays or difficulties arise which in the opinion of City
render it impracticable to proceed with the Project,then at any time City may serve formal
notice of cancellation upon CP and this Agreement shall thereupon become null and void,
except City shall reimburse CP for all actual reasonable and necessary costs incurred by CP
prior to notice of cancellation or which are unavoidable by CP after notice of cancellation
has been received.
SECTION 4. GENERAL PROVISIONS.
(1) FORCE MAJEURE. The obligations of City and CP Linder this Agreement,
other than payment, shall be subject to force majeure (which shall include
strikes, riots, floods,accidents,Acts of God, and other causes or
circumstances beyond the reasonable control of the Party claiming such force
majeure as an excuse for non-performance), but only as long as, and to the
extent that, such force majeure shall prevent performance of the obligations.
(II) ASSIGNMENT. Neither City nor CP may assign or in any manner transfer
either in whole or in part this Agreement or any right or privilege granted tort
hereunder, nor permit any person or persons, company or companies to share
in any such rights or privileges without the prior written consent of the Parties
hereto. This Agreement shall be binding upon and inure to the benefit of, and
shall be enforceable by,the Parties hereto and their respective successors and
permitted assigns.
NOTICE. All notices or other communications required or permitted hereunder shall
be in writing and shall be delivered in person, by a scanned official letter and
transmitted electronically or by express mail or courier, or certified or registered mail,
return receipt requested,postage prepaid,to the persons specified herein as entitled to
receive such notice,or to their duly authorized representative,unless notice of a
change of address is given pursuant to the provisions of this Section. Notices shall be
addressed as follows:
To CP:
Dakota, Minnesota& Eastern Railroad Corporation
Suite 900
Canadian Pacific Plaza
120 South 6th Street
Minneapolis, MN 55402
Attn: Curt Whelan
To City:
City of Dubuque
Engineering Department
50 W 13th Street
Dubuque, IA 52001
Attn: Steve Brown
Subject to proof of earlier delivery or receipt, any such notice, demand,
request, consent or approval shall be conclusively deemed to have been given
or made on the day upon which same is delivered or, if sent by prepaid
registered mail, on the fifth business day following the date of mailing or, if
transmitted by electronic means, on the second business day following
acknowledged transmission, as the case may be. Any party may, at any time,
give notice to the others of any change of address or electronic address.
WAIVER. No delay or omission on the part of a Party hereto in the exercise
of any right or remedy hereunder shall operate as a waiver thereof,nor shall
any single or partial exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy.
(IV) NOT FOR THE BENEFIT OF OTHERS. This Agreement and each and
every provision hereof is for the exclusive benefit of the Parties hereto and
their permitted assigns and not for the benefit of any other person.
(VI) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with Iowa law. Iowa law shall apply for all purposes,
regardless of the venue for the dispute, including without limitation,
jurisdiction, venue, conflicts of law, and choice of law.
(VII) CONFIDENTIALITY. All books, manuals, drawings, computer software,
other documentation and know-how provided or made available to the City or
its representatives pursuant to this Agreement("Confidential Information") is
confidential and proprietary,and shall remain the property of CP at all times.
City is licensed to use such books, manuals, drawings, computer software and
other documentation and know-how as will be supplied to City solely as
necessary for the Services. City's right and its obligations hereunder shall be
in force irrespective of whether such books, manuals, drawings, documents
and computer software and know-how have been made by or are the property
of CP itself or external consultants, or subcontractors. In no circumstances
shall City use or permit others to use any of the books, manuals, drawings,
computer software and other documentation or know-how provided pursuant
to this Agreement for any purpose other than for the Services. City shall not
provide any Confidential Information to third Parties other than as required by
law, or make any alterations in any Confidential Information without the prior
written consent of CP. City has advised CP that it is subject to certain public
disclosure requirements pursuant to applicable public records laws. In the
event that City receives a request with which it must comply pursuant to such
public disclosure requirements for any Confidential Information, it shall
promptly advise CP. The provisions of this Section 4(VII) shall survive the
expiration or termination of this Agreement for any reason.
Limitations. In protecting confidential and proprietary information,a Patty
will use the same reasonable steps that it takes to protect its own confidential
and proprietary infonnation. The obligations set forth above in this Section
will not apply to information that is or comes into the public domain through
no violation of this or any other agreement;that was known to the party from
sources other than activities pursuant to this Agreement;that is rightfully
received from any third party who is Linder no contractual obligation to keep
such information confidential: that is developed independently by the Patty
receiving the information without reference to such information,provided that
it is developed by persons working for the party who have not had access to
such information; or that a Party is required by a court of competent
jurisdiction to disclose.
Exception. CP agrees that City may furnish a copy of this Agreement and any
exhibits and attachments thereto to other parties, agencies or the federal
government involved in financing on behalf of the Bee Branch Project, subject
to the execution of a confidentiality undertaking substantially in a form as
attached hereto as Exhibit A.
(VIII) TERM. This Agreement automatically will expire on December 3)1. 2018,
1. 2018,
unless extended bv in utual agreement ofthe parties or terminated earlier
Linder the terms of this Agreement.
(IX) This Agreement Constitutes the entire agreement between the Parties. No
waiver, consent, modification, or change of terms of this agreement shall bind
either Party unless in writing and signed by both Parties. Such waiver,
modification, or change, if made. shall be effective only in the specific
instance and for the Specific Purpose given. There are no understandings.
agreements. or representations. oral or written, not specified herein regarding
this A(Ireement.
(X) Notwithstanding anything in this Agreement that may be construed to the
contrary,the approval of any Design Engineering plans,the terms of any
release or right of entry agreement, the provision of Confidential information
or other records, the scope of any inspection or testing of CP property,the
transfer of any real property rights,and the construction of the Proposed
Improvements or any other improvements on CP property shall all remain in
CP's sole discretion, including the right to disapprove of arly of the foregoing.
(XI) Notwithstanding anything in this Agreement that may be construed to the
contrary, the City reserves all rights to proceed in accordance with the Iowa
Utilities Board's ("IUB") rules to obtain authorization to commence
construction of the Proposed Improvements without the acquisition of any
easements. CP reserves all rights under federal and state law and in any
applicable administrative or judicial forum to oppose any attempt by the City
to proceed under IUB rules or to seek authorization to commence construction
of the Proposed Improvements without the acquisition of any easements,
IN WITNESS WHEREOF, the parties hereto have caused this Aoreement to be
executed in dilplicate COLInterparts, each of'which shall be considered as anoriklinal by
their CILIIY authorized officials as of the dates below indicated..
'm4
Executedthis2l davof ?017
DAKOTA- Ir INNE'SOTA & EASTERN
RAILROAD CORPORATION
dba Canadian Pacific
Atte
By:
ExeCUted thi'alrclay of 2017
CITY OF DUBUQUE, IOWA
Attest:
By:
EXHIBIT A
CONFIDENTIAL UNDERTAKING
am an employee of for
whom I am performing due diligence concerning the potential financing for the City of
Dubuque, Iowa('"City") for planning, additions and improvements necessary to establish the
Bee Branch Project(the "Project"). I agree to be bound by the following conditions.
I. I understand and agree, as a condition precedent to my reviewing the
Service Agreement "Agreement") between the City and Dakota, Minnesota& Eastern
Railroad Corporation dba Canadian Pacific ("CP"),that I will take all necessary steps to assure
that said Agreement and any exhibits or attachments are kept on a confidential basis by me and
my employer, and that under no circumstances will I permit access to, or share said
information with, directly or indirectly, any other person or entity,
2. My review of the Agreement will be done solely for due diligence purposes. I
agree not to use or to permit the use of any information therein or to use or to permit the use of
any methodologies or techniques disclosed or information learned as a result of receiving such
data or information, for any purpose other than evaluation of the aforementioned financing of
the Project. I agree that any information I review will not be used for any competitive purpose
visa-vis CP or any other person or entity.
3. I understand and agree that money damages would not be a sufficient remedy for
breach of this Undertaking and that CP shall be entitled to specific performance and injunctive
and/or other equitable relief as a remedy for any such breach. I further agree to waive any
requirement far the securing or posting of any bond in connection with such remedy. Such
remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking, but shall
be in addition to all remedies available at law or equity.
Signed
Date
01368272-1\1 0422-17i
AMENDED AND SUBSTITUTED
SERVICE AGREEMENT
This Amended and Substituted Service Agreement ("Service Agreement") made
and entered into by and between the City of Dubuque, Iowa ("City"), and Dakota,
Minnesota&Eastern Railroad Corporation, doing business as Canadian Pacific ("CP").
WITNESSETH:
WHEREAS, City is involved in activities to modify storm water drainage by day
lighting the .Bee Branch Creek ("Bee Branch Project") from 15`x` Street and Sycamore Street
to 24t" Street and Washington Street all within the City;
WHEREAS, City is completing design engineering of the Bee Branch Project(the
"Design Engineering");
WHEREAS,the proposed Bee Branch Project, including improvements proposed by
the City through CP's property("Proposed Improvements"), is pail of phase 7 of the multi-
phase Bee Branch Flood Mitigation Project. The Proposed Improvements are to be
constructed between the downstream Lower Bee Branch Creek, in place since 2011, and the
upstream Upper Bee Branch Creek, currently tinder construction;
WHEREAS,the Proposed Improvements include the construction of six (6)8-foot
diameter steel culverts with inlet and outlet headwalls(defined herein as the"Steel Culverts")
next to the existing Canadian Pacific dual box culverts(defined herein as'*CP Culverts") that
have been in place for several decades. The purpose of the Steel Culverts is to provide for the
free flow of storm water through Canadian Pacific's right-of-way;
WHEREAS,the Proposed Improvements also include the construction of five (5) 12-
foot by 10-foot reinforced concrete box culverts (defined herein as the"Box Culverts")to
provide for the free flow of water from the Upper Bee Branch Creek north of Garfield Avenue
through CP's property at 506 Garfield Avenue to a proposed reinforced concrete transition
structure (defined herein as the"Transition Structure") that will allow for the flow to
"transition" from the Box Culverts to the Steel Culverts and CP Culverts; and
WHEREAS,the Proposed Improvements also include the construction of a headwall
structure at the downstream end of the Steel Culverts and CP Culverts where the water will
flow into the Lower Bee Branch.
. WHEREAS,the freight railroad operating property and freight rail operations of CP
will be impacted by the Bee Branch Project;
WHEREAS,the City needs access to CP's property and records, and input from CP
for Design Engineering and ultimately requires CP's written approval of the Design
Engineering plans;
WHEREAS, CP is willing to cooperate with City's Design Engineering work,
provided that CP is fully reimbursed for such services and City is agreeable to proceeding on
that basis;
WHEREAS, City and CP have signed a Memorandum of Understanding dated
September 7, 2012 concerning their mutual roles and objectives for the Bee Branch Project;
WHEREAS,the scope of work for the City's proposed construction on CP's property as
identified in the Memorandum of Understanding has changed;
WHEREAS, City and CP executed a Service Agreement on or about October 4,2012
and a First Amendment to Service Agreement on or about March 12, 2015;
WHEREAS,the City has paid CP $100,499.56 for Reimbursable Expenses for Services
(as such terms are defined below)incurred as of December 30,2014;
WHEREAS,the Service Agreement expired on December 31, 2015;
NOW,TI-IEREFORE, in consideration of the premises and of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
SECTION 1. The Parties shall perform the following services. The term"Services"
means all services the Parties are required to provide under this Service Agreement for Design
Engineering. The Services specifically exclude the transfer of real property rights,
construction, operation and maintenance in connection with implementation of the Bee
Branch Project.
(1) SERVICES BY CITY. City shall furnish or cause to be furnished,at its
sole expense, all the Services required to perform and complete:
a. All required Design Engineering for the Bee Branch Project, other than
that described in paragraph(11) below; and
b. Incidental services necessary to complete the items hereinabove specified.
(11) SERVICES BY CP. CP shall ffirnish or cause to be furnished, at the request
and expense of City,the following services required for City to perform and
complete the Design Engineering:
a. Physical access to CP property through the issuance of a release or right
of entry agreement as appropriate based on the scope of City's work;
b. Flagging protection as required for any work pursuant to this
Agreement, including without limitation in support of survey or
geotechnical work;
c. Access to property and engineering records;
d. CP minimum engineering design requirements for freight rail
infrastructure and other technical guidance;
e. Review of Design Engineering plans excluding review of structure plans
and calculations;
f. Incidental services, including supervisory and legal expenses,
necessary to complete the items hereinabove specified.
CP will make its best effort to provide the Services, as they are requested by City, in a
timely manner.
The Parties agree the Reimbursable Expenses for the CP Services set forth.above
incurred after December 30,2014 shall not exceed$50,000, unless this Agreement is
otherwise amended..Reimbursement for the Services and Reimbursable Expenses will be on
the basis of actual cost of the Services and Reimbursable Expenses to CP.
CP may perform the Services through the use of its own forces, CPs preferred
service providers, or other providers satisfactory to CP. All Services will be performed in
ii
accordance with ,CP standards. CP must approve the design of all improvements to be
constructed on CP property.
. The Pat-ties acknowledge the above-stated $50,000 limit for the Reimbursable
Expenses is based on incomplete information as to the level of effort required of CP and
subject to change,through an amendment to this Agreement, Further, at City's request, this
Agreement may be amended to include CP review of structure plans and calculations and
other additional services. Unless this Agreement is otherwise amended,CP shall have no
obligation to provide additional Services after the above-stated$50,000 limit for
Reimbursable Expenses is reached.
SECTION 2. CP shall be entitled to payment for the actual reasonable and necessary
costs of CP Services("Reimbursable Expenses"),subject to the above-stated $50,000 limit.
SECTION 3. In the event that delays or difficulties arise which in the opinion of City
render it impracticable to proceed with the Project,then at any time City may serve formal
notice of cancellation upon CP and this Agreement shall thereupon become null and void,
except City shall reimburse CP for all actual reasonable and necessary costs incurred by CP
prior to notice of cancellation or which are unavoidable by CP after notice of cancellation
has been received.
SECTION 4. GENERAL PROVISIONS.
(1) FORCE MAJEURE. The obligations of City and CP under this Agreement,
other than payment, shall be subject to force majeure (which shall include
strikes, riots, floods, accidents,Acts of God, and other causes or
circumstances beyond the reasonable control of the Party claiming such force
majeure as an excuse for non-performance), but only as long as, and to the
extent that, such force majeure shall prevent performance of the obligations,
(11) ASSIGNMENT, Neither City nor CP may assign or in any manner transfer
either in whole or in part this Agreement or any right or privilege granted to it
hereunder, nor permit any person or persons, company or companies to share
in any such rights or privileges without the prior written consent of the Parties
hereto. This Agreement shall be binding upon and inure to the benefit of, and
shall be enforceable by, the Parties hereto and their respective successors and
permitted assigns.
NOTICE. All notices or other communications required or permitted hereunder shall
be in writing and shall be delivered in person, by a scanned official letter and
transmitted electronically or by express mail or courier, or certified or registered mail,
return receipt requested,postage prepaid,to the persons specified herein as entitled to
receive such notice,or to their duly authorized representative, unless notice of a
change of address is given pursuant to the provisions of this Section. Notices shall be
addressed as follows:
To CP:
Dakota, Minnesota&Eastern Railroad Corporation
Suite 900
Canadian Pacific Plaza
120 South 6th Street
Minneapolis, MN 55402
Attn: Curt Whelan
To City:
City of Dubuque
Engineering Department
50 W 13th Street
Dubuque, IA 52001
Attn: Steve Brown
Subject to proof of earlier delivery or receipt, any such notice, demand,
request, consent or approval shall be conclusively deemed to have been given
or made on the day upon which same is delivered or, if sent by prepaid
registered mail, on the fifth business day following the date of mailing or, if
0 "n
transmitted by electronic means, on the second business day following
acknowledged transmission, as the case may be. Any party may, at any time,
give notice to the others of any change of address or electronic address.
(111) WAIVER. No delay or omission on the part of a Party hereto in the exercise
of any right or remedy hereunder shall operate as a waiver thereof nor shall
any single or partial exercise of any right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy.
(IV) NOT FOR THE BENEFIT OF OTHERS. This Agreement and each and
every provision hereof is for the exclusive benefit of the Parties hereto and
their permitted assigns and not for the benefit of any other person.
(VI) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with Iowa law. Iowa law shall apply for all purposes,
regardless of the venue for the dispute, including without limitation,
jurisdiction, venue, conflicts of law, and choice of law.
(VU) CONFIDENTIALITY. All books, manuals, drawings, computer software,
other documentation and know-how provided or made available to the City or
its representatives pursuant to this Agreement("Confidential Information") is
confidential and proprietary, and shall remain the property of CP at all times.
City is licensed to use Such books,manuals, drawings, computer soffivare and
other documentation and know-how as will be supplied to City solely as
necessary for the Services. City's right and its obligations hereunder shall be
in force irrespective of whether such books, manuals, drawings, documents
and computer software and know-how have been made by or are the property
of CP itself or external consultants, or subcontractors. In no circumstances
shall City use or permit others to use any of the books, manuals, drawings,
computer software and other documentation or know-how provided pursuant
to this Agreement for any purpose other than for the Services. City shall not
provide any Confidential.Information to third Parties other than as required by
law, or make any alterations in any Confidential Information without the prior
written consent of CP. City has advised CP that it is subject to certain public
disclosure requirements pursuant to applicable public records laws. In the
event that City receives a request with which it must comply pursuant to such
public disclosure requirements for any Confidential Information, it shall
promptly advise CP. The provisions of this Section 4(VII)shall survive the
expiration or termination of this Agreement for any reason.
Limitations. In protecting confidential and proprietary information,a Party
will use the same reasonable steps that it takes to protect its own confidential
and proprietary information. The obligations set forth above in this Section
will not apply to information that is or comes into the public domain through
no violation of this or any other agreement;that was known to the party from
sources other than activities pursuant to this Agreement; that is rightfully
received from any third party who is Linder no contractual obligation to keep
such information confidential; that is developed independently by the Party
receiving the information without reference to such information, provided that
it is developed by persons working for the party who have not had access to
such information; or that a Party is required by a court of competent
jurisdiction to disclose.
Exception. CP agrees that City may furnish a copy of this Agreement and any
exhibits and attachments thereto to other parties, agencies or the federal
government involved in financing on behalf of the Bee Branch Project, subject
to the execution of a confidentiality undertaking substantially in a form as
attached hereto as Exhibit A.
(VIII) TERM. This Agreement automatically will expire on December 311. �O 18.
unless extended by mutual aorreement of the parties or terminated earlier
under the terms of this Agreement.
(IX) This Agreement Constitutes the entire agreement between the Parties. No
waiver, consent, modification, or change of terms of this agreement shall bind
either Party unless in writing and signed by both Parties. Such waiver,
modification, or change, if made, shall be effective only in the specific
instance and for the specific purpose given. There are no understandings,
agreements, or representations, oral or written. not specified herein regarding,
this Agreement.
(X) Notwithstanding anything in this Agreement that may be construed to the
contrary,the approval of any Design Engineering plans,the terms of any
release or right of entry agreement,the provision of Confidential information
or other records,the scope of any inspection or testing of CP property,the
transfer of any real property rights,and the construction of the Proposed
Improvements or any other improvements on CP property shall all remain in
CP's sole discretion,including the right to disapprove of any of the foregoing.
(XI) Notwithstanding anything in this Agreement that may be construed to the
contrary, the City reserves all rights to proceed in accordance with the Iowa
Utilities Board's ("IUB")rules to obtain authorization to commence
construction of the Proposed Improvements without the acquisition of any
easements. CP reserves all rights under federal and state law and in any
applicable administrative or judicial forum to oppose any attempt by the City
to proceed under IUB rules or to seek authorization to commence construction
of the Proposed Improvements without the acquisition of any easements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
Z7
executed in duplicate counterparts, each of which shall be considered as an original by
their duly authorized officials as of the dates below indicated.
Executed.this 26�ay o f 017
DAKOTA, MINNESOTA & EASTERN
RAILROAD CORPORATION
dba Canadian Pacific
Atte 'f
By:
P
Executed thiam— lay o 2017
CITY OF DUBUQUE, IOWA
Attest:
-Z V z By:
EXHIBIT A
CONFIDENTIAL UNDERTAKING
am an employee of for
whom I am performing due diligence concerning the potential financing for the City of
Dubuque, Iowa("City") for planning, additions and improvements necessary to establish the
Bee Branch Project(the "Project"). I agree to be bound by the following conditions.
I I understand and agree, as a condition precedent to my reviewing the
Service Agreement("Agreement") between the City and Dakota,Minnesota& Eastern
Railroad Corporation dba Canadian Pacific ("CP"),that I will take all necessary steps to assure
that said Agreement and any exhibits or attachments are kept on a confidential basis by me and
my employer, and.that under no circumstances will I permit access to, or share said
information with,directly or indirectly, any other person or entity.
2. My review of the Agreement will be done solely for due diligence purposes. I
agree not to use or to permit the use of any information therein or to use or to permit the use of
any methodologies or techniques disclosed or information learned as a result of receiving such
data or information, for any purpose other than evaluation of the aforementioned financing of
the Project. I agree that any information I review will not be used for any competitive purpose
vis-&vis CP or any other person or entity,
3. 1 understand and agree that money damages would not be a sufficient remedy for
breach of this Undertaking and that CP shall be entitled to specific performance and injunctive
and/or other equitable relief as a remedy for any such breach. I further agree to waive any
requirement for the securing or posting of any bond in connection with such remedy. Such
remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking, but shall
be in addition to all remedies available at law or equity.
Signed
Date
01368272-1\10422-175