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RAILROAD CROSSING AND CONSTRUCTION AGREEMENT I I 430061 THIS RAILROAD CROSSING AND AGREEMENT made and entered into in duplicate as of the d261 ·Ď day of btc;;i;;;:iv.LA!:J , 1997 (hereinafter "Agreement"), by and between Palouse River & Coulee City Railroad, Inc., a Washington corporation (hereinafter "Railroad"), and the City of Moscow, Idaho, a municipal corporation of the State of Idaho (hereinafter "City"). WHEREAS, the City proposes to construct an improvement of a portion of the Railroad right-of-way adjacent to the western edge of Perimeter Drive right-of-way and such improvement includes the construction of a Bicycle and Pedestrian Trail on the right of-way of the Railroad, located in the Southeast Quarter of the Southeast Quarter of Section 12, Latah County, as shown on Exhibit A, attached hereto and made a part hereof (hereinafter "Premises"); and WHEREAS, the improvement, as used in this Agreement, refers to work on the Railroad right-of-way as shown in City of Moscow, Latah County, Idaho, Plans, Specifications and Proposal for Palouse Trail 1997, Project No. 115-97 (hereinafter "Project"), and involving living property of the Railroad constructed in accordance with such Project as approved by the Railroad and such Project when approved is made a part of this Agreement by reference thereto; and WHEREAS, the City and Railroad desire to set forth in this Agreement their mutual understanding and agreements relating to the construction, maintenance and costs of said Project and the changes made necessary in connection therewith; NOW, THEREFORE, the City and Railroad agree as follows: ARTICLE I In consideration of covenants and conditions to be fulfilled by the City as hereinafter set forth, RAILROAD AGREES: 1. For the sum of Seven Thousand Five Hundred Dollars and No Cents ,500.00) to give and grant and hereby does give and grant to the City, its agents and contractors, an easement on Railroad's right-of-way of approximately 3,000 square feet, as shown outlined and highlighted in red on Exhibit A, which easement shall also he separately filed with Latah County, Idaho, and the right to enter, locate, construct, use and maintain Premises as approved by the Railroad, the Railroad reserving, however, to Railroad, its successors, assigns, tenants or lessees, the right to construct, operate and maintain along or across said Premises, such tracks, pipelines, communications lines, signal lines, electric lines and such other facilities as Railroad, its successors, assigns, AGREEMENT Page I 97-40 ---PAGE BREAK--- 430061. tenants, or lessees may from time to time find necessary or convenient, as will not unreasonably interfere with the use of the Premises or Project. ARTICLE II In consideration of the covenant and conditions to be fulfilled by Railroad and the City as herein set forth, CITY AGREES: I, To furnish or cause to be furnished pursuant to the Project plans and specifications all labor, materials, tools and equipment to construct the Project. 2. To require its contractor, in respect to its work performed upon, over or under the Premises, to provide Railroad Protective Liability Insurance in the amounts of $2,000,000 per occurrence with an aggregate limit of $6,000,000 applying separately to each annual period during construction of the Project and as set out in this Agreement at Article II.2.B. AGREEMENT A. Construction of the Project shall not commence on the Premises until: B. I, Railroad receives a copy of the City's contract with the City's contractor of the Project; and 2. Certificate of the City's contractor's public liability and property damage insurance covering the Project construction period has been furnished to Railroad; and 3. Original copy of Railroad Protective Liability Insurance policy in the benefit of the Railroad in the amount set out at Agreement II.2. is furnished to Railroad; and 4. Railroad has advised the City, in writing, that limits form and substance of the City's and contractor's insurance policies as set out in Agreement II.2. and its sub-parts are satisfactory to Railroad. The contractor's insurance policies referred to herein at Agreement II.2.A., sub-parts 2 and 3, shall be kept in full force and effect by the contractor during the performance of said construction upon and adjacent to the Premises throughout the duration of construction of the Project and thereafter until contractor removes all tools and equipment from the Premises and cleans up the Premises to the satisfaction of Railroad. Page 2 ---PAGE BREAK--- 430061 3. To require all construction on said Project to be performed in a manner that will not endanger the safety of the Railroad or unduly interfere with the operation thereof. If. in the reasonable opinion of the Railroad, the operation of the contractor is endangering the safety of the Railroad's operation, Railroad may immediately order the termination of further work on the Premises without liability on the Railroad's part until such dangerous condition has been corrected. 4. In the event the City shall for any reason cancel or terminate its Project and abandon the Project, or in the event the contractor shall stop work thereon for a period of sixty ( 60) consecutive calendar days, other than for seasonal suspensions as authorized by the City, for reason over which the contractor has control, and the City has not prepared to relet or resume work under the contract with the contractor, the Railroad shall have the right to restore the Premises and/or the adjacent Railroad property to the condition existing prior to commencement of work on said Project. The City agrees to reimburse Railroad for all expenses incurred by Railroad for such restoration by Railroad under this provision. 5. To make any and all arrangements with the Railroad and others that may be necessary for the location and relocation of wire lines, pipelines, and other facilities not owned by the Railroad, provided, however, that the Railroad shall make or cause to be made such changes and rearrangements in its fences, communication lines, signal lines, signals and other facilities as may be necessary, and make or cause to be made such changes and rearrangements in the wire lines, pipelines, or other facilities of its tenants or lessees as may be necessary on account of the construction of the improvements, to the extent that the Railroad has the right and authority to do so. At any time following construction of the Project, Railroad shall locate, relocate or cause to be located or relocated such lines or other facilities in the easement described herein, Railroad shall either bear the costs for such location or relocation or shall reimburse City for any damage such location or relocation causes to City property. 6. To prepare or approve all detail plans for the Project, which plans shall be submitted for review and approval by the duly designated representative of the Railroad. 7. To maintain and repair the completed improvement without cost or expense to the Railroad and in a manner satisfactory to the Federal Highway Administration, United States Department of Transportation, or other authorized representatives. ARTICLE III CITY AND RAILROAD MUTUALLY AGREE: I. The City shall prepare all specifications, including special provisions, for the Project, the Premises and adjacent property of the Railroad, which specifications shall be submitted to the Railroad for its approval. All construction and work done by the AGREEMENT Page 3 ---PAGE BREAK--- 43006:1 parties to this Agreement shall be in accordance with the approved plans and specifications of the Project. 2. That all work contemplated in this Agreement shall be mutually scheduled and coordinated, commenced and completed without undue delay. All work shall be performed in a good workmanlike manner. 3. This Agreement shall be binding upon and inure to the benefit of the Railroad, its successors and assigns, and upon and to the successors and assigns of the City. 4. Nothing in this Agreement shall preclude the Railroad from becoming the subcontractor of the City's contractor on the Project. In the event that the Railroad becomes a subcontractor on the Project, this Agreement, and particularly the provisions of this Agreement regarding provision of insurance in Article II.2., may be adjusted accordingly by the Parties. ARTICLE IV SPECIAL INDEMNITY PROVISION The City assumes the risk of and shall indemnify and hold harmless the Railroad and other railroad companies which use the Premises, their officers, agents and employees, against and from any and all loss, damages, claims, demands, actions, causes of action, costs, attorney fees, fines, penalties and expenses of whatsoever nature, hereinafter "Loss," which may result from: injury to or death of persons whomsoever (including officers, agents, and employees of the Railroad and the City, as well as other persons): loss or damage to tracks, equipment, or other property of or in the custody of the Railroad and such other Railroad companies, as well as other property: or the City's failure to comply with any federal, state, or local laws, regulation, or enactment, when such Loss is due to or arises in connection with or as a result of: the construction of the Project; any work arising out of construction by the City or contractor of the City on or in connection with the Project; the use of said Premises by the City or the officers, agents, employees, patrons or invitees of the City, or by any other person; regardless of whether such Loss is caused solely or contributed to in part by the negligence of the Railroad, its officers, agents, or employees. AGREEMENT Page 4 ---PAGE BREAK--- 430061 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in duplicate the day and year first above written. ATTEST: CITY OF MOSCOW, IDAHO By: Paul C. Agidius, Mayor PALOUSE RIVER & COULEE CITY RAILROAD, INC. ACKNOWLEDGMENTS On this 13 day of September, 1997, before me, a Notary Public in and for said State, appeared Pat Bodey, known to me to be the person named above and acknowledged that he executed the foregoing Railroad Crossing and Construction Agreement in his duly authorized capacity as General Manager of Palouse River & Coulee City Railroad, Inc. Agr.eC!Uet)ts\PaJouse Trail Crossing\sr AGREEMENT Notary Public for th" State of Washington Residing at l$x Mv commission expires aT 'I /leon ' ) Page 5 ---PAGE BREAK--- . , a :ą 'it C) e ·S . I /bw"r f1o S:llr't3 ArtN Rva:>eu.