Quiet Zone Installation Agreement

Transcription

1 Quiet Zone Installation Agreement THIS QUIET ZONE INSTALLATION AGREEMENT is made effective this 3rd day of August, 2009, by and between WatersEdge Land Company, L.L.C. ( WatersEdge ) and the City of Overland Park, Kansas ( City ). Whereas, WatersEdge desires to develop a residential project on 159 th Street, east of Mission Road ( Development ); and Whereas, adjacent to the Development, a railroad crossing is located at the Union Pacific Railroad Milepost (DOT Number K) ( Crossing ); and Whereas, in connection with the Development, WatersEdge desires that the area at and around the Crossing become a quiet zone for the Union Pacific Railroad ( Railroad ); and Whereas, the Railroad has agreed to install a quiet zone at the Crossing; however, that installation will require the reconstruction and widening of the existing 159 th Street at-grade public road crossing ( Project ). NOW THEREFORE, the City agrees to cooperate with WatersEdge in the construction of the Project subject to the following terms and conditions: 1. The Railroad may require the City to reimburse the Railroad for the Railroad s expenses for all costs including, but in no way limited to, actual costs of preliminary and final engineering review, construction inspection, procurement of materials, equipment rental, manpower and deliveries to the job site and all of the normal and customary additives (which shall include direct and indirect overhead costs) associated therewith for the Project. The Railroad has estimated the cost of the Railroad s expenses for this Project at Eighty Five Thousand Four Hundred Ninety Four and Zero One Hundredths Dollars ($85,494.00). Concurrent with the execution of this Agreement, WatersEdge shall provide the City with an irrevocable letter of credit ( Letter of Credit ) in the amount of One Hundred and Twenty-Five Percent of the estimated cost or One Hundred Six Thousand Eight Hundred Sixty Seven and Fifty One Hundredths Dollars ($106,867.50). The Letter of Credit shall be released by the City upon final completion of the Project and upon written notification by the Railroad that all costs for the Project have been fully paid. The parties agree that WatersEdge will pay the Railroad directly for the Railroad s expenses. If the Railroad refuses to accept payment from WatersEdge, WatersEdge will pay the City the amount of the invoice and the City will then pay the Railroad. Notwithstanding anything in this Agreement to the contrary, WatersEdge shall reimburse the City for any and all costs incurred by the City associated with the Project within thirty (30) days of presentation of an invoice by the City to WatersEdge. 1

2 If WatersEdge fails to reimburse the City or the Railroad for costs associated with the Project within thirty (30) days of presentation of an invoice by the City to WatersEdge, the City may draw upon the Letter of Credit to pay Project costs. 2. WatersEdge will construct the Project in full accordance with the law and with the terms and conditions of the New Public Road Crossing Developer s Agreement (UPRR Folder No.: ) executed by the City, WatersEdge and the Railroad, which is dated August 3, 2009 and is incorporated by reference herein. WatersEdge shall obtain all necessary permits from the City including but not necessarily limited to the public improvement permit and shall provide the performance and maintenance bonds required. The construction of the Project will be paid in full by WatersEdge and the City will bear no cost associated therewith. 3. WatersEdge will defend, indemnify and save the City harmless from and against any and all claims, costs, expenses, liabilities of whatsoever kind or nature, including attorney s fees, associated with the acts or omissions of WatersEdge, it s employees, contractors or subcontractors in connection with the construction of this Project or with any claims, costs, expenses, liabilities of whatsoever kind or nature, including attorney s fees, arising out of the City s agreement to cooperate with WatersEdge relative to the Project. 4. WatersEdge shall maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Agreement as set forth below. A. Coverages and minimum limits are: 1. Commercial General Liability: [ISO occurrence form or its equivalent] $1,000,000 per occurrence and $2,000,000 annual aggregate limits including products - completed operations. 2. Business Auto Coverage: (Owned, hired and non-owned autos) $1,000,000 per occurrence limit. 3. Workers Compensation and Employers Liability: Workers compensation limits as required by the statutes of the state of Kansas and employers liability limits of $100,000/$500,000/$100, Coverage Limits. Coverage limits for General and Auto Liability exposures may be met by a combination of primary and umbrella policy limits. 2

3 5. Exposure Limits: The above are minimum acceptable coverage limits and do not infer or place a limit on the liability of WatersEdge nor has the City assessed the risk that may be applicable to WatersEdge. WatersEdge shall assess its own risks and if it deems appropriate and/or prudent maintain higher limits and/or broader coverages. WatersEdge s insurance shall be primary and any insurance or self-insurance maintained by the City shall be excess and not contribute with the coverage maintained by WatersEdge. B. Additional Insured. The City shall be listed by ISO endorsement or its equivalent as an additional insured during the Agreement. Any and all coverage available to the named insured is applicable to the additional insured. C. Verification of Coverage. 1. A certificate of insurance accompanied by an additional insured ISO form endorsement (CG 20 10; and CG 20 37) or equivalent effecting the coverage required by the City. 2. The insurance coverages are to be provided by an insured authorized to write business in Kansas with a Best s rating of at least A-: VII. 3. Any self-insurance or self-insured retentions must be specified on the certificate of insurance. Any and all deductibles or selfinsurance in the above described coverages shall be the responsibility and at the sole risk of the WatersEdge. The City may require written guarantees for payment procedures of self-insured losses and related investigations, claims administration and cost of defense. 4. The commercial general liability policy shall not contain an endorsement excluding contractual or completed operations liability. 5. Any coverage provided by a Claims-Made form policy must contain a three year tail option, extended reporting period, or must be maintained for three years post contract. D. Cancellation. Each insurance policy required by this clause shall not be suspended, voided, or canceled by either party; except after thirty (30) days' written notice has been given to the City. 3

4 E. Subcontractors. All coverages for subcontractors shall be subject to all of the requirements stated herein. 5. WatersEdge shall insert the following paragraphs as special provisions of the contracts with the Contractor chosen to do any work related to this Agreement: A. The Contractor shall defend, indemnify and save the City of Overland Park, Kansas, harmless from and against all liability for damages, costs and expenses including attorney fees arising out of any claim, suit, action or otherwise for injuries and/or damages sustained to persons or property by reasons of the acts or omissions of the Contractor, or its subcontractors, agents or employees in the performance of its contract. B. The City of Overland Park, Kansas, shall be named as additional insured on all policies of insurance issued to the Contractor and required by the terms of the Contractor s agreement with the City of Overland Park, Kansas. 6. WatersEdge agrees that in the course of its performance under this Agreement: A. WatersEdge shall observe the provisions of the Kansas Act Against Discrimination (K.S.A et seq.) and shall not discriminate against any person in the performance of work under the present contract because of race, religion, color, sex, national origin, ancestry or age; B. In all solicitations or advertisements for employees, the contractor shall include the phrase, "equal opportunity employer," or a similar phrase to be approved by the Kansas Human Rights Commission ( Commission ); C. If WatersEdge fails to comply with the manner in which WatersEdge reports to the Commission in accordance with the provisions of K.S.A and amendments thereto, WatersEdge shall be deemed to have breached the present contract and it may be canceled, terminated or suspended, in whole or in part, by the City; D. If WatersEdge is found guilty of a violation of the Kansas Act Against Discrimination under a decision or order of the Commission which has become final, WatersEdge shall be deemed to have breached the present Agreement and it may be canceled, terminated or suspended, in whole or in part, by the City; and E. WatersEdge shall include the provisions of paragraphs (A) through (D) above in every subcontract or purchase order so that such provisions will be binding upon such subcontractor or vendor. 4

5 . WatersEdge further agrees that WatersEdge shall abide by the Kansas Age Discrimination In Employment Act (K.S.A et seq.) and the applicable provision of the Americans With Disabilities Act (42 U.S.C et seq.) as well as all other federal, state and local laws, ordinances and regulations applicable to this Project and to furnish any certification required by any federal, state or local laws, ordinances and regulations applicable to this project and to furnish any certification required by any federal, state or local governmental agency in connection therewith. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their authorized officials on the day and year first above written. The City of Overland Park, Kansas Carl Gerlach, Mayor ATTEST: Marian Cook, City Clerk Approved as to Form Tammy M. Owens Senior Assistant City Attorney WatersEdge Land Company, LLC By: Title: 5

6 STATE OF ) ) SS. COUNTY OF ) LIMITED LIABILITY COMPANY ACKNOWLEDGEMENT BE IT REMEMBERED, That on this day of August, 2009, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came, member of WatersEdge Land Company, a Limited Liability Company duly formed under the provisions of the State of Kansas Limited Liability Company Act, who is personally known to me to be such member and who is personally known to me to be the same person who executed as such member the foregoing instrument on behalf of said company, and such person duly acknowledged the execution of same to be the act and deed of said company. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. My Appointment Expires Notary Public 6

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