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Mines of Spain Lease, IDNR_Temporary, Approval Agreement for Railroad Contract Work AreaMasterpiece on the Mississippi Dubuque bierd All- America City 1 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Temporary and Approval Agreement for Mines of Spain Lease Related to Railroad Contract Work Area DATE: January 27, 2012 Leisure Services Manager Marie Ware is recommending approval of two agreements with the Iowa Department of Natural Resources related to the Mines of Spain and construction work on the railroad bridge on Julien Dubuque Drive. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:sv Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Marie Ware, Leisure Services Manager Maureen Quann, Assistant City Manager Masterpiece on the Mississippi Dubuque had All-America City 'I I' 2007 TO Michael C Van Milligen, City Manager FROM Marie L Ware, Leisure Services Manager DATE January, 24, 2012 SUBJECT Temporary and Approval Agreement for Mines of Spain Lease Related to Railroad Contract Work Area INTROD UCTION The purpose of this memorandum is to request approval of two agreements with the Iowa Department of Natural Resources related to Mines of Spain BACKGROUND Wayne Buckholz contacted me regarding DM & E railroad's contractor Edward Kraemer and Sons Inc The contractor started moving in equipment and supplies to work on the railroad bridge on Julien Dubuque Drive just past the girls softball complex They moved in and did not have any agreement to do so with Mines of Spain or the City They told Wayne that the railroad told them it was ok to do it there Wayne requested they stop until the City and the DNR have an agreement worked out since the land is owned by the City and leased to the State Wayne worked with the DNR legal counsel and I worked with Maureen on the two attached agreements Our original lease with the DNR remains in place and these two agreements allow the DNR to allow the contractor Edward Kraemer and Sons Inc to use a portion of the leased space Wayne has worked with their environmental experts and this site has been ok'd There are two documents that make possible Edward Kraemer and Sons Inc having a work area and parking for their project The Temporary Agreement between the DNR and Edward Kraemer and Sons has been drafted for use of the land during construction Both the DNR attorney and Maureen have drafted, reviewed and are okwith this temporary agreement It is also been approved by the DNR and signed by their Deputy Director An approval agreement between the City and the DNR in which the City approves in writing of the DNR's granting an interest to Kraemer has been drafted and reviewed by all parties Under the original lease between the City and the DNR, the City must approve in writing of any interest in the land granted by the DNR to a third party This approval agreement constitutes our written approval To execute this when the Temporary Agreement between the DNR and Kraemer is in final form (but before it is executed), we attach it as an exhibit to the Approval Agreement so you, the City Manager, know the terms of use you are approving Once the Approval Agreement has been signed by yourself, we will attach the executed Approval Agreement as an exhibit to the Temporary Agreement between the DNR and Kraemer so both parties know the terms of the City's approval Maureen shared that you as the City Manager has the authority to sign leases that are three years or less in length, so she limited the terms of extension that the DNR or Kraemer could request to keep this three years or less (total length) The project is not expected to last that long DISCUSSION What you see has been reviewed by Wayne, DNR attorneys, City attorney's office and myself All of us are comfortable with the terms ACTION TO BE TAKEN I request your signature on the Approval Agreement that then allows Wayne on behalf of the DNR to work with Edward Kraemer and Son's Inc to get their signature and have the transaction complete AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND THE STATE OF IOWA DEPARTMENT OF NATURAL RESOURCES This agreement ( "Agreement "), dated for reference purposes the day of , 2012, is made and entered into by and between the City of Dubuque, Iowa ( "City ") and the State of Iowa through its Department of Natural Resources ( "Department "). Whereas, City and Department are parties to a forty -nine (49) year Cooperative Agreement, originally dated June 6, 1983, and as amended September 17, 2001, between and am ong City, Friends of Mines of Spain and Department covering and owned by City and managed by Department, including The E.B. Lyons Prairie - Woodland Preserve and Nature Interpretative Center and an area known as Rip Row Valley, which consists of approximately seven acres adjacent to and north of the Julien Dubuque Monument at the Mines of Spain Recreation Area (collectively, "Land "). Whereas, the Cooperative Agreement states Department will not assign or transfer any interest in Land, including, but not limited to, contracts to third parties for custody, management or operation of Land, without the prior written approval of City. VVhereas, Department wistes to allow the DM & E Railroad's Contractor, Edward Kraemer and Sons Inc. ( "Contractor ") temporary use of land in Rip Row Valley for parking, access and storage of construction equipment and materials in connection with the replacement of a railroad bridge passing over Catfish Creek in Rip Row Valley. Whereas, City approves of this permission granted by Department to Contractor for the temporary use of land in Rip Row Valley. NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. Pursuant to City's authority under the Cooperative Agreement, City approves Department's grant of permission to Contractor for the temporary use of land in Rip Row Valley under the terms and conditions set forth in the TEMPORARY AGREEMENT FOR CONSTRUCTION PARKING, ACCESS AND STORAGE BETWEEN THE STATE OF IOWA THROUGH ITS DEPARTMENT OF NATURAL RESOURCES AND EDWARD KRAEMER AND SONS INC., attached as Exhibit A. 2. City's approval of temporary use of land will remain in effect for one (1) year from the date of execution of the TEMPORARY AGREEMENT FOR CONSTRUCTION PARKING, ACCESS AND STORAGE BETWEEN THE STATE OF IOWA THROUGH ITS DEPARTMENT OF NATURAL RESOURCES AND EDWARD KRAEMER AND 011712 SONS INC. If Contractor or Department request an extension of such agreement, Department must obtain approval from City of such an extension. 3. City's approval of Department's grant of permission is only temporary and does not constitute an easement. CITY OF DUBUQUE, IOWA By: Michael C. an Milligen City Manager STATE OF IOWA DEPARTMENT OF NATURAL RESOURCES By: Chuck Gipp Deputy Director Iowa Department of Natural Resources 2 Prepared by Todd Rozendaal, Iowa Department of Natural Resources, 502 E 9th St, Des Moines, Iowa 50319 TEMPORARY AGREEMENT FOR CONSTRUCTION PARKING, ACCESS AND STORAGE BETWEEN THE STATE OF IOWA THROUGH ITS DEPARTMENT OF NATURAL RESOURCES AND EDWARD KRAEMER AND SONS, INC. THIS AGREEMENT ( "Agreement ") is made between the State of Iowa acting through the Department of Natural Resources ( "Department ") and Edward Kraemer and Sons, Inc. ( "Contractor ") to establish the terms and conditions by which Department will grant use to Contractor of land managed and leased by Department from the City of Dubuque, Iowa ( "City "). WHEREAS Contractor has requested that Department grant permission to use the land for parking, access and storage of construction equipment and materials in connection with the replacement of a railroad bridge passing over Catfish Creek in an area known as Rip Row Valley. WHEREAS Contractor recognizes that the grant of permission is only temporary and does not constitute an easement. THEREFORE, Department hereby grants Contractor permission to use the land, subject to the following terms and conditions: SECTION 1. USE OF LAND. 1.1. Contractor shall be allowed access through the NE 1/4 of Section 6, Township 88 North, Range 3 East of the 5th P.M., Dubuque County, Iowa, as shown in red on the attached Exhibit A. 1.2. Contractor shall be allowed to store equipment and materials on a 75' x 75' area behind the "Do Not Enter" sign as shown in yellow on the attached Exhibit A. Contractor will install a temporary gated fence around this storage area for the protection of Contractor's materials and equipment and surrounding wildlife areas and archeological sites. This fencing must be approved by a representative of Department, and such approval will not be unreasonably withheld. 1.3. Contractor shall be allowed to park up to six (6) vehicles in the six (6) parking spaces shown in blue on the attached Exhibit A. Contractor, and its officers, agents and employees, shall- not park any vehicles in the remaining parking spaces facing the river, along the roadway, or in the grass. 1.4. Contractor will use the land described in Sections 1.1, 1.2 and 1.3 above ( "Land ") only for parking, access and storage of construction equipment and materials in connection with the railroad bridge replacement. The Land will not be used in connection with any other project or for any other purposes. 1.5. While using the Land, Contractor agrees that: 1) Contractor will not damage the Land; 2) Contractor will not interfere with Department's use of the Land; 3) Contractor will at all times comply with all state, federal and local rules and regulations; and 4) Contractor will not remove any trees, vegetation, or other natural features without the written consent of Department and City. 1.6. Contractor will install temporary fencing on the common property line at the northwest and southwest corners by the railroad bridge to protect the surrounding archeological sites and wildlife areas. Such fencing must be approved by a representative of Department, and such approval will not be unreasonably withheld. SECTION 2. CITY APPROVAL. Pursuant to Department's Cooperative Agreement with City to lease the Land, Department may not assign or transfer any interest in the Land, including agreements with third parties for custody, management or operation of the Land, without the prior written approval of City. City's agreement with Department granting such approval is attached hereto as Exhibit B. SECTION 3. CONTRACTOR'S EQUIPMENT. 3.1. If Department requires Contractor to relocate its equipment to other locations on the Land, Contractor must complete the relocation of its equipment within thirty (30) days after receipt of written notice from Department. The relocation will be at the Department's expense and such expense must be approved by the Department. 3.2. Contractor's equipment and materials used in connection with the railroad bridge replacement are Contractor's personal property and will never be considered fixtures to the Land. Upon termination of the Agreement, Contractor's equipment will remain Contractor's personal property and must be removed by Contractor in accordance with Section 6.3 of this Agreement. SECTION 4. ACCESS TO LAND. 4.1. Contractor will have 24- hour /7 -day access to the Land by reasonable means designated by Department for access and storage of construction equipment and materials in connection with the railroad bridge replacement. 4.2. Upon twenty -four (24) hours prior written notice to Contractor, and with an escort provided by Contractor, Department and /or City will be allowed access to Contractor's equipment at reasonable times to examine and inspect the same for safety reasons or to ensure that Contractor's obligations under this Agreement are being met. 2 SECTION 5. TERM. This Agreement will be effective as of the date of execution by all parties hereto and will expire one (1) year after the effective date. Contractor may request to extend the term of this Agreement by no more than two (2) additional years, in writing to Department and City. Such a request may be made within thirty (30) days of the expiration of this Agreement. The decision to extend the Agreement, and the length of such an extension, so long as the extension is not greater than two (2) additional years, will be at the discretion of Department and subject to City's approval. SECTION 6. TERMINATION. 6.1. Department may terminate this Agreement at any time upon thirty (30) days written notice to Contractor and City, if in the judgment of the Department or City, continued use of the Land would interfere with Department's proper management of the Land or materially alter, damage or destroy the Land. However, this Agreement will not be unreasonably terminated. 6.2. Contractor may terminate this Agreement at any time upon thirty (30) days written notice to Department and City. 6.3. In the event of termination or upon the expiration of the Agreement, Contractor will have thirty (30) days to remove Contractor's equipment from the Land and restore the Land to the condition of the Land at the time Contractor first entered upon the Land. SECTION 7. INDEMNIFICATION AND INSURANCE. 7.1. Contractor agrees to hold harmless and indemnify the state of Iowa, and its officers, agents and employees, Department, and its officers, agents and employees, and City, and its officers, agents and employees, against any and all claims, actions, demands, losses, liabilities or legal expenses that may arise on account of injury to any person or damage to any property occurring in connection with the use of the Land permitted in Section 1 of this Agreement. This indemnification clause will include, but is not limited to, any liability or obligation of Department and /or City arising out of any claim by Contractor or any person, firm, subcontractor or corporation providing services for Contractor in connection with the use of the Land permitted in Section 1 of this Agreement with Contractor's permission in connection with same. Accordingly, Contractor accepts the Land in its "as is" condition for all purposes including, but not limited to, the use of the Land permitted in Section 1 of this Agreement. 7.2. At all times during the Agreement, Contractor must comply with the insurance requirements set forth in Insurance Schedule A, attached as Exhibit B. Contractor must name Department and City as additional insureds. Such insurance will provide coverage against the indemnity provision set forth above. Contractor must deliver a certificate of insurance to Department and City before entering upon the land. SECTION 8. SUBCONTRACTORS. Contractor must receive prior approval from the Department and City of any subcontractor, person, firm or corporation hired by Contractor to provide services in connection with the construction project described in this Agreement. Such prior approval will not be unreasonably denied. SECTION 9. MECHANIC'S LIENS. Neither Contractor nor anyone claiming by, through or under Contractor will have the right to file or place any mechanic's lien or other lien of any kind or character whatsoever upon the land or any building or improvement located thereon. 3 SECTION 10. ASSIGNMENT. This Agreement may not be assigned without the prior written approval of Department and City. Such written approval will not be unreasonably withheld. SECTION 11. FORCE MAJEURE. In the event that either party hereto is delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, unavailability or excessive price of fuel, power failure, riots, insurrection, war, terrorist activities, chemical explosions, hazardous conditions, fire, weather or acts of God, or by reason of any other cause beyond the exclusive and reasonable control of the party delayed in performing work or doing acts required under the terms of this Agreement, then performance of any such act shall be extended for a period equivalent to the period of such delay. SECTION 12. MISCELLANEOUS. 12.1. The parties hereto understand and agree that this Agreement represents their entire Agreement and that there are no verbal additions to this Agreement, and that all amendments and additions or changes to this Agreement must be in writing and agreed to by both parties. Such modifications may not be made without approval of City, and such approval will not be unreasonably withheld. 12.2. All covenants, conditions and provisions of this Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 12.3. This Agreement is governed by the laws of the State of Iowa and venue for any action with respect to this Agreement will be in Dubuque County, Iowa. 12.4. If any term of this Agreement is found to be void or invalid, such invalidity will not affect the remaining terms of this Agreement, which will continue in full force and effect. 12.5. All Riders and Exhibits annexed hereto form material parts of this Agreement. 12.6. All notices and correspondence related to this Agreement must be sent to the following: Department: Contractor: City: Chuck Gipp Deputy Director Iowa Department of Natural Resources 502 East 9th Street Des Moines, IA 50319 Jesse Proffitt, Project Manager Edward Kraemer and Sons, Inc. Address Michael Van Milligen City Manager 50 West 13th Street Dubuque, IA 52001 -4845 Marie Ware Leisure Services Manager 2200 Bunker Hill Road Dubuque, IA 52001 4 Date: 143 rat i Chuck Gipp, Deputy Directo Date: Jesse Proffitt, Project Manager Edward Kraemer and Sons, inc. Q H I w EXHIBIT C City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers) Insurance Schedule A 1. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to contract inception and at the end of the contract if the term of contract is longer than 60 days. Each Certificate shall be prepared on the most current ACORD form approved by the Iowa Department of Insurance or an equivalent. 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each Certificate shall be furnished to the contracting department of the City of Dubuque. 4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 5. All required endorsements to various policies shall be attached to Certificate of insurance. 6. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the ISO form. 7. Provider shall be required to carry the minimum coverage /limits, or greater if required by law or other legal agreement, in Exhibit I. Page 1 of 3 Schedule A, August, 2011.Doc 9 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers) Insurance Schedule A (continued) Exhibit I A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products- Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Omit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit." c) Include endorsement indicating that coverage is primary and non - contributory. d) Include endorsement to preserve Governmental Immunity. (Sample attached). e) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. using ISO form CG 20 10. Ongoing operations. B) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Coverage A Coverage B Statutory —State of Iowa Employers Liability Each Accident $100,000 Each Employee- Disease $100,000 Policy Limit - Disease $500,000 a) Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. Page 2 of 3 Schedule A, August, 2011.Doc 10 City of Dubuque Insurance Requirements for Tenants and Lessees of City Property or Vendors (Suppliers, Service Providers) Preservation of Governmental Immunities Endorsement 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non - Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPRCIMEN Page 3 of 3 Schedule A, August, 2011.Doc 11