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HomeMy WebLinkAbout24. 21-490SEPTEMBER 28, 2021 21-490 RESOLUTION (CARRIED___5-0____LOST_______LAID OVER_______WITHDRAWN_______) PURPOSE: APPROVE AGREEMENT WITH WISCONSIN & SOUTHERN RAILROAD LLC & WATCO TRANSLOADING LLC FOR THE CONSTRUCTION AND OPERATION WITHIN A RAILROAD EASEMENT IN THE SOUTHWEST INDUSTRIAL PARK INITIATED BY: CITY ADMINISTRATION WHEREAS, the City is the owner of property currently being developed as the Southwest Industrial Park; and WHEREAS, the Southwest Industrial Park includes railroad easements, the rights of which the City can assign or delegate for the construction, maintenance, and operation of lead track, rail spurs, and related facilities to meet the goal of providing reliable, cost effective, safe, and efficient railroad freight service over and through the railroad easements as well as nearby property; and WHEREAS, Wisconsin & Southern Railroad LLC and Watco Transloading LLC desire to accept the assignment of rights described, per the attached, for the purpose of enhancing their existing business. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that an agreement with Wisconsin & Southern Railroad LLC and Watco Transloading LLC for the construction and operation of a railroad easement in the Southwest Industrial Park is hereby approved, per the attached, and that proper City officials are hereby authorized and directed to deliver the agreement in substantially the same form as attached hereto, any changes in the execution copy being deemed approved by their respective signatures, and said City officials are authorized and directed to take those steps necessary to implement the terms and conditions of the agreement. TO: Honorable Mayor and Members of the Common Council FROM: Kelly Nieforth, Community Development Director DATE: September 23, 2021 RE: Approve Agreement with Wisconsin & Southern Railroad LLC and Watco Transloading LLC for the Construction and Operation within a Railroad Easement in the Southwest Industrial Park BACKGROUND The City created a railroad easement in the Southwest Industrial Park to ensure there is access to the Wisconsin and Southern Railroad LLC (WSOR) mainline from city-owned parcels that will be sold to private companies. The City can delegate or assign the rights of easements included in the Southwest Industrial Park to allow for the construction, maintenance, and operation of lead track, rail spurs, and related facilities to meet the goal of providing reliable, cost effective, safe, and efficient railroad freight service. Wisconsin & Southern Railroad LLC and Watco Transloading LLC desire to accept the assignment of said easement rights for the purpose of enhancing their existing business. Wisconsin & Southern Railroad LLC owns and operates the nearby principal railroad track to which the newly developed Southwest Industrial Park will be connected. Watco Transloading LLC leases an adjacent transload facility and may expand its business footprint within the park. ANALYSIS The agreement requires that a lead track, spurs, and all related rail facilities are constructed, developed, and maintained within the railroad easement by Wisconsin & Southern Railroad LLC and Watco Transloading LLC. FISCAL IMPACT Wisconsin & Southern Railroad LLC and Watco Transloading LLC will undertake and complete construction, development, and maintenance of the track at no cost to the City. The City will not be required to contribute financially to the construction, development, maintenance, and operation of rail service. RECOMMENDATION Common Council approves the agreement with Wisconsin & Southern Railroad LLC and Watco Transloading LLC for the construction and operation of a railroad easement in the Southwest Industrial Park. Respectfully Submitted, Approved: Kelly Nieforth Mark A. Rohloff Community Development Director City Manager CONSTRUCTION AND OPERATING AGREEMENT BY AND BETWEEN CITY OF OSHKOSH AND WISCONSIN & SOUTHERN RAILROAD, L.L.C., SOUTHWEST INDUSTRIAL PARK September 22, 2021 1 September 22, 2021 CONSTRUCTION AND OPERATING AGREEMENT This Agreement made and entered into this __________day of ______________, 2021 by and between City of Oshkosh, a Municipal Corporation, having its principal office at 215 Church Avenue, Oshkosh, Wisconsin, 54901, (Municipality) and Wisconsin & Southern Railroad, L.L.C., a railroad company organized and existing under the laws of the State of Wisconsin and fully empowered to act as a railroad company in Wisconsin, having its principal office at 315 W. 3rd Street, Pittsburg, KS, 66762 (Railroad or Operator). RECITALS 1. The Municipality is the owner of real property within its municipal boundaries that is currently being developed as the Southwest Industrial Park. The infrastructure being developed by the Municipality includes rail service to meet the freight shipping needs of industries within the SW Industrial Park; 2. The SW Industrial Park includes Railroad Easements allowing the development and operation of railroad functions that are held by the Municipality. These easement rights held by the Municipality allow it to assign or delegate those railroad development and operation functions. The Municipality is not in the business of developing and operating railroad services and therefore desires to assign or delegate these functions to the Operator in such a manner to allow the Operator to construct, maintain, and operate lead track, rail spurs, and related facilities to meet the goal of providing reliable, cost effective, safe, and efficient railroad freight service over and through the Railroad Easements as well as nearby property; 3. The Railroad desires to accept the assignment or delegation of rights described in this Agreement for the purpose of enhancing their existing business. The Railroad owns or controls and operates the nearby principal railroad track to which the newly developed SW Industrial Park track will be connected. Given business and municipal interests present, the Municipality and Railroad will provide consideration to the other parties as well as receive benefits from the other parties. The Municipality benefits from the availability of freight rail service enhancing the development and operation of the SW Industrial Park that it is developing. The Railroad benefit from the additional potential business from their expanded footprint and potential industrial customers; 4. The Municipality and Operator have negotiated and agree to the terms of this long-term Development and Operating Agreement; 5. The parties are familiar with the operations and business practices of each and are similarly familiar with the SW Industrial Park and surrounding properties. Operator has inspected and is familiar with the SW Industrial Park property and the Railroad Easement terms within which the newly developed railroad will be constructed and operated, and believes that making certain financial commitments relating to this Agreement is in its best business interests; 6. The parties herein covenant and agree to the terms of this Agreement in consideration of the promises and the mutual covenants contained herein. 2 September 22, 2021 7. The parties mutually agree that nothing in this Agreement should be construed or interpreted as including the assignment, conveyance, or promise of any rights or authority that exceed the City’s rights and authority pursuant to the underlying railroad easement, or any other governing rule, regulation, statute, or agreement. All assigned rights are subject to, without limitation, the lawful interests of the servient estates, easement holders, regulatory bodies, and other lawful interests. References noting that particular terms in this Agreement are subject to or limited by applicable law, including other agreements, are meant for clarification purposes only. AGREEMENT 8. DEFINITIONS. Terms used in this Agreement shall be given the following meanings in this Agreement as well as other documents referenced. All other words are intended to have their common meaning. 8.1. Commencement Date means the date this Agreement is approved in writing by the Municipality on the Signature Page of this Agreement. 8.2. Municipality means the City of Oshkosh. 8.3. FRA means the Federal Railroad Administration of the United States Department of Transportation. 8.4. Track means rails, ties, ballast, track material, switches, connections, culverts, and railroad-related materials, facilities generally identified as the lead track within the Railroad Easement in the Southwest Industrial Park of the City of Oshkosh. 8.5. Railroad Easement means an easement created for railroad purposes by the Declaration of Railroad Easement recorded by the Municipality which extends over and across certain real property within the SW Industrial Park and which is intended to expand as the boundaries of the SW Industrial Park expand. The Railroad Easement is more particularly described in Certified Survey Maps, but has a general width of twenty (20) feet and connects with the Operator’s Principal Line Track on the Railroad Easement’s east end, and extends westerly into the SW Industrial Park to serve freight rail customers within the SW Industrial Park. 8.6. Railroad means the Wisconsin & Southern Railroad, L.L.C., and its successors, if any. 8.7. Principal Line Track means the mainline Railroad track to which the lead track that the subject of this Agreement connects at or near Milepost 184. 8.8. Rail Line means the Lead Track segments in aggregate. 8.9. STB means the Surface Transportation Board of the United States Department of Transportation, or its successors, if any. 8.10. WisDOT means the Wisconsin Department of Transportation. 3 September 22, 2021 9. ASSIGNMENT AND TERM. 9.1. Municipality hereby assigns to Operator the Municipality’s interest in the Railroad Easements identified as Easement Areas eight (8) and nine (9) on Certified Survey Map Number 7469 recorded with the Winnebago County Register of Deeds on April 11, 2019, as Document Number 1786959. The terms of the Assignment is described in this Agreement. The Municipality’s easement interests assigned are described in the Declaration of Railroad Easement filed with the Winnebago County Register of Deeds on April 25, 2019, as Document Number 1787816. This Railroad Easement is attached hereto as Exhibit A and fully incorporated into the terms of this Agreement. 9.2. Municipality also grants to Operator the rights of this Agreement to a parcel owned by the Municipality but not subject to the Railroad Easement. This parcel is described as: <Legal to be inserted before recording> 9.3. The Easement Property subject to this Assignment is described as follows: Railroad Easement Area 8 A piece of land being part of Lot 2 of Certified Survey Map 7469, recorded as document #1786959, in the office of the Winnebago County Register of Deeds, situated in part of the Northeast 1/4 of the Southwest 1/4 of Section 32, Township 18 North, Range 16 East, of the Fourth P.M., City of Oshkosh, Winnebago County, Wisconsin, more particularly described as: Commencing at the West 1/4 corner of Section 32; thence South 89° 29’50” East along the East-West 1/4 line of Section 32, a distance of 1899.06 feet; thence South 00°30’10” West, a distance of 1130.23 feet to the Easterly right-of-way line of Transit Drive and the Point of Beginning of this description; thence South 90°00’00” East, a distance of 261.64 feet; thence 44.60 feet along the arc of a curve to the left, having a radius of 1077.00 feet and a chord that bears South 26°14’53” East, a distance of 44.60 feet; thence North 90°00’00” West, a distance of 285.34 feet to the Easterly right-of-way line of Transit Drive; thence along the Easterly right-of-way line of Transit Drive North 00°00’00” East, a distance of 34.02 feet; thence continuing along the Easterly right-of-way line of Transit Drive North 33°37’51” East, a distance of 7.18 feet to the Point of Beginning, containing 11,000.24 square feet and subject to restrictions, reservations, rights-of-way and easements of record. Railroad Easement Area 9 A piece of land being part of Lot 1 of Certified Survey Map 7469, recorded as document #1786959, in the office of the Winnebago County Register of Deeds, situated in part of the Northeast 1/4 of the Southwest 1/4 and in part of the Northwest 1/4 of the Southwest 1/4 of Section 32, Township 18 North, Range 16 East, of the Fourth P.M., City of Oshkosh, Winnebago County, Wisconsin, more particularly described as: Commencing at the West 1/4 corner of Section 32; thence South 00° 00’20” East along the West line of Section 32, a distance of 1166.99 feet; thence North 89°59’40” East, a 4 September 22, 2021 distance of 50.02 feet to the Easterly right-of-way line of Clairville Road and the Point of Beginning of this description; thence North 90°00’00” East, a distance of 1508.25 feet; thence North 00°00’00” East, a distance of 20.00 feet; thence North 90°00’00” East, a distance of 229.13 feet to the Westerly right-of-way line of Transit Drive; thence along the Westerly right-of-way of Transit Drive South 49°06’06” West, a distance of 6.77 feet ; thence continuing along the Westerly right-of-way line of Transit Drive South 00°00’00” West, a distance of 34.35 feet; thence continuing along the Westerly right-of- way line Transit Drive 1.57 feet along the arc of a curve to the right, having a radius of 267.00 feet and a chord that bears South 39°16’32” West, a distance of 1.57 feet; thence North 90°00’00” West, a distance of 1731.44 feet to the Easterly right-of-way line of Clairville Road; thence along the Easterly right-of-way line of Clairville Road North 00°00’20” West, a distance of 20.00 feet to the Point of Beginning, containing 39,143.46 square feet and subject to restrictions, reservations, rights-of-way and easements of record. 9.4. Operator accepts the assignment of easement rights pursuant to the terms and conditions outlined in this Agreement. In particular, and without limitation, Operator agrees to accept and adopt the Municipalities intended purpose for the Railroad Easements which is to develop and operate in a commercially reasonable manner freight rail service for the SW Industrial Park and surrounding areas that will be reliable, cost effective, safe, and efficient. 9.5. The Assignment is subject to all terms of this Agreement. The two primary categories of terms assigned to Operator are the following: 9.5.1. A lead track connecting Railroad’s nearby Principal Line Track and extending into the Municipality’s SW Industrial Park, as those boundaries may be expanded from time to time, shall be constructed and maintained in a manner consistent with the terms of the underlying Railroad Easements; and 9.5.2. The rail facilities developed pursuant to this Assignment shall be actively operated and freight rail service shall be made reasonably available to those Industries that seek such service. 9.6. This Agreement is to be executed upon authorization of the Municipality, and the Board of Managers of Operator. This Agreement shall be effective upon the date this Agreement is fully executed, and its initial term shall end at 12:01 A.M. December 31, 2042. 9.7. Operator shall have the option to renew this Agreement for up to three (3) successive additional ten (10) year renewal periods. Each option to renew shall be exercised at least one (1) year but no more than two (2) years prior to the expiration of the then current term. The renewal notice must be provided to the Municipality in writing. All terms and conditions of this Agreement shall apply to the renewal periods unless amended by mutual agreement. 9.8. This Agreement may be terminated by either party before the end of the initial or any renewal terms as described herein. 5 September 22, 2021 10. CONSIDERATION. No direct payments for this Assignment shall be due from the Operator to Municipality, or from Municipality to Operator. The parties accept as valuable consideration the promises and covenants as described within this Agreement. The consideration received by each party can generally be described as follows: Operator receives the benefit of expanding its business footprint and increasing its freight rail transport capacity, while the Municipality receives the benefit of ensuring active and commercially reasonable freight rail service within the SW Industrial Park so that it may broaden its tax base and recoup its investment in developing the SW Industrial Park. The construction, development, maintenance, and operation of rail service described herein shall be at Operator’s cost and expense, and Municipality shall not be required to contribute financially to the construction, development, maintenance, and operation of rail service. 11. CONSTRUCTION / MAINTENANCE OF TRACK. The condition of the Railroad Easement property as of the date this Agreement is executed is vacant and unimproved. Therefore, this Agreement requires that a lead track, spurs, and related rail facilities are constructed, developed, and maintained within the Railroad Easement. Operator agrees to undertake and complete such construction, development, and maintenance at no cost to the Municipality. Operator may elect to enter into separate agreements with others for this construction, development, maintenance, and/or operation of the railroad facilities within the SW Industrial Park which may include cost divisions, sharing, or other financial arrangements. Operator will determine timing, design and planning of any such development, construction or maintenance of track based upon Operator’s standard business practices and business model. Regardless of any financial, construction, or operational agreements between Operator and third-parties, the Operator shall always be the considered as the responsible party for any obligations to the Municipality through this Agreement. The Municipality cannot force or require Operator to undertake or complete such construction, development, maintenance or operation that does not meet the Operator’s own financial return requirements Furthermore, Municipality shall not be responsible for any costs or liabilities for the construction, development, maintenance, or operation of the railroad-related improvements as required or described in this Agreement. The parties more specifically understand and agree: 11.1. Operator accepts, jointly and severally, the assignment of Railroad Easement rights and obligations from the Municipality for the purpose of providing freight rail service to the SW Industrial Park and other properties. The Operator has reviewed the Declaration of Railroad Easement which describes the easement rights and obligations held by the Municipality and assigned through this Agreement. Operator is satisfied that the Railroad Easement terms being assigned will allow the Operator to undertake all anticipated construction, maintenance, and operation activities necessary to provide commercially reasonable freight rail service to the SW Industrial Park, as those boundaries may be changed, as well as other nearby areas. 11.2. The Operator shall construct a lead track throughout over the designed property to serve the SW Industrial Park and potentially other nearby property. Construction of the lead track shall include all improvements necessary to provide commercially reasonable freight rail service throughout the SW Industrial Park. Improvements shall include, without limitation, rails, ties, ballasts, and appurtenances, as well as connections, switches, grade crossings, fences or barriers, roadway construction, track drainage facilities, lighting, and track signals, where the forgoing are required or desirable to ensure the goals of this Agreement are safely and efficiently accomplished. 6 September 22, 2021 11.3. Operator shall perform all maintenance, repair, and replacement of all improvements within the Railroad Easement. 11.4. Operator shall obtain and maintain all necessary permissions, permits, approvals, certifications, and/or agreements that are required by any Federal, State, or local government or other entity with jurisdiction over Operator’s construction, development, maintenance, and use of the Railroad Easement. Municipality agrees to reasonably cooperate and assist Operator in the event Municipality’s assistance or cooperation is necessary or desirable to support Operators applications or requests related to the required permissions, permits, approvals, certifications, and/or agreements. 11.5. Operator shall retain ownership and control of all improvements constructed or installed within the Railroad Easement, as well as any improvements constructed or installed that extend rail service into future SW Industrial Park expansions or otherwise into the surrounding area. The Municipality understands that the Operator may have separate agreements regarding cost sharing, use, payments, maintenance, or interests with others regarding spurs, switches, connections, and other the rail improvements within the Railroad Easement. However, such agreements must be structured so that in all cases the Operator shall retain full control of all improvements within the Railroad Easement. The preceding requirement may in some circumstances result in split ownership of certain spurs or other tracks or facilities in which the Operator owns the track within the Railroad Easement and the industry or other party owns the track outside the Railroad Easement. Regardless of any split ownership, Operator shall at all times be responsible to the Municipality for compliance with this Agreement. 11.6. The Operator shall make freight rail service available to properties, businesses, and industry within the SW Industrial Park. Operator shall be allowed to make such availability contingent upon the business or industry agreeing to commercially reasonable terms before allowing connection to the lead track within the Railroad Easement. 11.7. The track to be constructed is expected to cross one or more public rights-of-way, which may include streets and various municipal utilities. Operator is responsible for the costs of construction, maintenance, and use of the railroad facilities crossing public rights- of-way. Operator shall be responsible, at its expense, for obtaining approval for any crossing from any federal, state, or local jurisdiction requiring such approval. Operator shall be responsible for reimbursing the Municipality for the difference of costs the Municipality incurs between the actual cost of installing, constructing, repairing, maintaining, adding, replacing its above and below ground facilities within its right-of-way and the estimated cost of the same actions if the railroad had not crossed the public right-of-way. 11.8. Subject to and in a manner consistent with applicable law, public utilities, which for purposes of this Agreement are different from Municipal Utilities, may be allowed to cross the Railroad Easements provided they are constructed to the specifications approved by the operator, do not adversely affect existing or anticipated railroad operations and all approvals are obtained. Public utilities shall not be charged any license or other fee for crossing the Railroad Easement, if otherwise allowed, but may be required to incur additional construction costs to meet operator’s approval and ensure the safety of the railroad operation to the extent allowed by law. 7 September 22, 2021 11.9. The Operator agrees that the construction of the lead track and related appurtenances within the SW Industrial Park boundaries as of the date of this Agreement will be completed and extended in a commercially reasonable manner. The parties agree to enter into further good-faith negotiations regarding reasonable timelines of rail expansion at the time the boundaries of the SW Industrial Park have expanded. 12. RAILROAD OPERATIONS. 12.1. Operator has or shall acquire and shall maintain the requisite common carrier obligation from the STB and any other governing body for the railroad operations described under this Agreement. Operator shall keep such authority in full force and effect throughout the term of this Agreement. Operator shall make all required filings and reports to the STB, the Wisconsin Office of the Commissioner of Railroads, and any other governing body as required by law. 12.2. Provision of freight rail service to the SW Industrial Park and within the Railroad Easement shall be at Operator’s expense, and shall include, without limitation: 12.2.1. Operator shall actively make freight rail service available to current and future shippers and receivers through the lead track within the SW Industrial Park, provided such availability is commercially reasonable. Freight rail services including provision of rail cars, switching, line haul and other related services. Operator is required and hereby agrees to provide the current and future shippers and receivers within the SW Industrial Park upon the same or materially similar terms and conditions as such service is provided to other shippers and receivers served by Operator, or as otherwise agreed between Operator and any shipper or receiver. Failure to provide minimum service levels required by the Municipality may, at Municipality's option, commence a process to find Operator in default of this Agreement. 12.2.2. Operator shall perform or cause to be performed at its own cost and expense all reasonably necessary maintenance, repairs, and replacements of the lead track including crossings at grade, drainage ways and structures, signals, fences, other appurtenances, and any other portion, feature, or element of the lead track or associated within the Railroad Easement. 12.2.3. Operator agrees to inspect rail facilities as necessary to ensure the safe operation of freight rail service within the SW Industrial Park, with a minimum standard for inspections being those required or recommended by governing bodies with jurisdiction over the rail operations. Operator shall provide the Municipality with written notification when a condition of the lead track or a condition of Operator’s business will result in a material interruption of freight rail service to one or more customers within the SW Industrial Park. A material interruption shall mean the failure of Operator to serve one or more customer due to the unsafe condition of the lead track and related rail facilities, or a business or scheduling disruption that is not routine or commercially reasonable. Disruptions due to unsafe conditions of industry spurs or facilities outside of the boundaries of the Railroad Easement or is otherwise caused by the industry shall not be considered a material interruption. Operator is not required to provide Municipality with copies of any periodic reports regarding the 8 September 22, 2021 condition of the rail facilities within the Easement Property. However, Municipality reserves the right to request copies of inspection reports from federal agencies or insurance agencies and safety orders from federal agencies or insurance agencies and to furnish Municipality any like reports and orders from the Wisconsin Office of the Commissioner of Railroads. Operator shall furnish such reports to the Municipality upon request. 12.2.4. Operator agrees to provide and maintain at its own expense all suitable locomotives, cars and other rail equipment as are necessary in the operation of this freight rail service to and within the SW Industrial Park. Operator shall be solely responsible for and agrees to provide all tools and other equipment necessary to properly maintain the lead track, spurs, sidetracks, and related track and facilities. 12.2.5. Operating Personnel. Operator agrees to obtain and maintain the necessary personnel for operation and management of its operations within the SW Industrial Park. All of the aforementioned personnel shall be under the sole control and direction of Operator. It is understood and agreed that no personnel of Operator are agents, employees, servants or subcontractors of Municipality. Operator’s personnel shall be qualified and properly trained for such service, but this shall be the sole responsibility of Operator. 12.2.6. Operator covenants and agrees to use its best efforts to promote the use of freight rail services within the SW Industrial Park. Operator agrees to diligently seek new freight rail business and customers for such services. 12.2.7. Neither the assigned rights to the Railroad Easement nor the lead track or other rail improvements constructed and/or installed within the Railroad Easement shall be used by Operator in any form or amount as equity, security, or collateral for any borrowing or other means of raising capital by Operator or as collateral for any other purpose. 12.2.8. Operator hereby assumes full responsibility for preserving public order upon the Railroad Easement property and for resolving matters concerning trespass upon or from the Railroad Easement. Operator may adopt and enforce any necessary rules in accordance with this Agreement and with the rights provided by the Railroad Easement. Operator shall have the right to post signs as allowed by the Railroad Easement and as necessary to prevent entrance upon the lead track and other tracks and rail facilities by unauthorized vehicles or individuals. Operator shall adopt and promulgate rules governing access to, use of, and operation of the Railroad Easement (Land and Improvements) with purposes of preserving and improving the safety of all persons permitted to enter and occupy the Railroad Easement. Operator agrees to facilitate the inspection of the Railroad Easement (Land and Improvements) as may be required by governmental agencies and the Municipality. 12.2.9. Operator assumes such responsibility as may exist for the eradication, control and removal of vegetation within the Railroad Easement as required by the terms of the Declaration of Railroad Easement, this Agreement, and by applicable federal, state, or local laws. 9 September 22, 2021 12.2.10. Operator assumes full responsibility for the ordinary repair and maintenance of any culverts, pipes, and grading necessary and resulting from the construction and installation of the lead track, spurs, other rail facilities, and appurtenances within the Railroad Easement. 12.2.11. Highways and Streets. Operator assumes full responsibility for the maintenance of lead track, warning devices, and railroad highway crossings whenever crossing maintenance is required to be performed by Operator by this Agreement or by law. 12.2.12. Operator may allow private crossings which do not substantially interfere with the performance of freight rail services, provided the Municipality agrees or offers no objection in writing to such crossing and provided the crossing is consistent with all applicable statutes, rules, and regulation. Conversely, Operator may alter or eliminate any private crossing established by a separate agreement if the crossing substantially interferes with Operator's performance of freight rail services provided such alteration or removal is consistent with all applicable state law. 12.3. Operator shall not directly or indirectly create, incur, assume, or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or other security interest or claim on or with respect to the any property over which the Railroad Easement is located, or improvements thereon or any interest therein. Operator will promptly, at its expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance, security interest, or claim if the same shall arise at any time. 13. LIABILITY AND INSURANCE. 13.1. Hold Harmless. Operator, jointly and severally, shall broadly hold Municipality harmless from liability and damages based on or related to Operator’s actions or inactions within the Easement Property, and shall indemnify the Municipality for any claims, costs, fees, charges, citations or other administrative costs or penalties, or damages including without limitation attorney’s fees and costs. This includes all actions and inactions related to the construction of the lead track, spurs, and appurtenances, as well as operation of freight rail service to and within the SW Industrial Park. This hold harmless and indemnification also includes any and all disputes related to Operator’s use of the Railroad Easement. For purposes of clarification but not limitation, the previously described hold harmless and indemnification includes: 13.1.1. Operator shall save and hold Municipality harmless from and against all liability, damage, loss, claims, demands and actions of any nature whatsoever which arise out of or are connected with, or are claimed to arise out of or be connected with, any act, omission or operation of Operator, or its agents, servants, subcontractors, officers or employees, or which arise out of or are connected with, or are claimed to arise out of or be connected with any accident or occurrence which happens or is alleged to have happened, within or related to the Railroad Easement and are related to the actions allowed or prohibited by this Agreement; 10 September 22, 2021 13.1.2. Operator responsibilities include all liabilities, damages, losses, claims, demands and actions on account of personal injury, death or property loss to Municipality, its officers, employees, agents, subcontractors or frequenters, or to Municipality, its officers, employees, agents, or subcontractors, whether based upon, or claimed to be based upon, contract, tort, or having its basis in worker's compensation (except worker's compensation claims by employees or agents of Municipality) under federal or state statutes or having any other code or statutory basis, or based upon administrative laws or other provisions, or to others who may subsequently make claims, demands, or allegations against Municipality based on Operator’s responsibilities. 13.1.3. Without limiting the required broad interpretation of the foregoing, the liability, damage, loss, claims, demands and actions Operator indemnifies shall include all liability, damage, loss, claims, demands and actions for trademark, copyright or patent infringement, for unfair competition or infringement of any so-called "intangible" property right, for defamation, false arrest, malicious prosecution or any other infringement of personal or property rights of any kind whatsoever. Operator shall at its own expense investigate all such claims and demands, attend to their settlement or other disposition, defend all actions based thereon and pay all charges of attorneys and all other costs and expenses of any kind arising from any such liability, damage, loss, claim, demand or action. 13.2. Insurance. 13.2.1. Required Coverage. During the term of this Agreement, Operator shall maintain, at its own cost and expense, a Comprehensive Railroad Liability Policy, or its equivalent, with limits of not less than five million dollars ($5,000,000) per occurrence, The Comprehensive Railroad Liability Policy, or its equivalent shall be increased by $500,000 every ten (10) years at the date of the signed Agreement. Municipality, and its Common Council members, employees, and agents shall be additional insureds under such policies. Operator agrees to maintain and keep in force worker's compensation and employer's liability insurance as applicable under the Federal Employer's Liability Act (FELA) to the extent, if any, that it is not covered under the Comprehensive Railroad Liability Policy (or equivalent coverage). Operator further agrees to carry Rolling Stock insurance in an amount not less than one million dollars ($1,000,000). Rolling Stock insurance shall be increased by $250,000 every ten (10) years at the date of the signed Agreement. Further, Operator shall carry Wisconsin Worker's Compensation Insurance to the extent that it is necessary over and above or in lieu of federal employer's liability coverage and for the covering of any employees, if any, who are not covered under FELA. All such insurance shall cover Municipality the extent of its Railroad Easement interests. 13.2.2. Validation of Coverage and Notice of Cancellation. Upon initial purchase and each renewal of insurance coverage, any insurance policy shall be written by a reputable insurance company with a current Best’s Guide Rating of A- and Class VII or better, and authorized to do business in Wisconsin. Operator shall provide to Municipality upon request certificates of insurance meeting the requirements set above Operator shall provide Municipality of material change, suspension, or cancellation no less than thirty (30) days prior to such material change, suspension, or cancellation. 11 September 22, 2021 13.2.3. Self-Insured Retention. It is understood and agreed that both the Comprehensive Railroad Liability Policy, or equivalent coverage, and Rolling Stock Policy to be obtained and kept in force by Operator may contain a self-insured retention. A Comprehensive Railroad Liability Policy, or equivalent coverage, provides coverage for liabilities resulting from railroad operations such as grade crossing incidents, injuries to third parties while on railroad property and injuries to railroad employees under FELA. A Rolling Stock Policy provides coverage for damage to rail equipment, track structure, customer product loss and third party property resulting from a derailment or collision between rail equipment. The Operator shall maintain a self-insured retention consistent with prudent industry practice for a similar company and the financial ability of Operator to satisfy such self-insured retention. The self-insured retention shall be no more than five million dollars ($5,000,000) per occurrence for railroad liability, employee injuries under FELA, property damage and rolling stock equipment, without the consent of the Municipality. If for whatever reason, the Operator determines that maintaining such a level of self-insured retention is either impractical, unavailable or uneconomical, then Operator agrees to confer with Municipality on the amount of self-insured retention as soon as reasonably possible prior to policy renewal or at such other time as review may be required by the insurer. Operator shall provide a Parental Guaranty to Municipality, with terms and conditions mutually agreed to by Operator and Municipality, where Operator’s parent company agrees to guaranty Operator’s payment obligations related to any self-insured retention as outlined in this subsection. 13.2.4. Reporting of Incidents and Claims. During the term of this Agreement and any extension thereof, any property damage exceeding $250,000 or injury to person occurring on the lead track or from operations within the SW Industrial Park by Operator or by the employees of Operator (herein referred to as an "incident") shall be reported as soon as reasonably possible to Municipality via email or phone. Operator shall, within sixty (60) days, provide a written report, which shall include a summary of the facts of the incident known as of that date. If a notice of injury or claim of damage is made to either the Operator or Municipality regarding any incident, then the party receiving such notice of injury or claims shall promptly provide the other party with a copy thereof. Thereafter, upon request, Operator shall provide updates on injury or claim of damage. 13.2.5. Review and Modification of Liability Insurance. The coverage limits of Operator's Comprehensive Railroad Liability Insurance (or its equivalent) for freight operations shall be subject to review by Municipality no more than once every twelve (12) months. Modifications to self-insured retention amounts shall also be reviewed at this time. Due to the long term nature of this Agreement, Municipality may at any time require Operator to purchase additional insurance as may be consistent with industry best practice for a similarly situated company. Such insurance changes shall become a term incorporated into this Agreement upon submission in writing to the operator by the Municipality. 13.3. Municipality and Operator shall establish the coverage level to be obtained by Operator and shall amend this and companion agreements in accordance thereto in the event insurance coverage limits in effect at the time of the review cannot be maintained due to the refusal by insurance carriers to issue a policy of insurance at that coverage limit to Operator. 12 September 22, 2021 13.4. Notwithstanding any other provision regarding insurance contained herein, Operator shall at a minimum obtain and maintain liability insurance coverage and limits no less than that required now or in the future by the laws of the State of Wisconsin and no less than that required now or in the future by the laws or regulations of the federal government or its agencies, showing Municipality and their officers, employees, and agents as additional insureds. 14. TERMINATION OR SUSPENSION. 14.1. Declaration of Default. 14.1.1. Default. A condition of default exists when one or more of the following occurs: 14.1.2. Either party to this Agreement fails to abide by or perform in a material respect any one or more of its terms and conditions; 14.1.3. Operator's insurance coverage lapses, is suspended, is canceled, or fails to satisfy all the terms and conditions related to insurance within this Agreement or any amendment thereto; 14.1.4. Operator files for protection under any bankruptcy statute; or, 14.1.5. Operator is in violation of Wisconsin or federal law. Notwithstanding this provision, in the event that the discontinuance of service requires approval of the STB or other federal or state agency, then Operator may not terminate service until it obtains authority from the STB or other required governing body allowing the discontinuance of service, or the Municipality at its option obtains authority from the STB or other governing body for the adverse discontinuance of Operator’s service. 14.1.6. Service Failure. Failure to provide freight rail service within the SW Industrial Park is defined as: Operator being unavailable to provide freight rail service for thirty (30) consecutive days to any SW Industrial Park customer served by the lead track within the Railroad Easement, or 14.1.7. Operator may not discontinue service on portion of the Rail Line without authorization from the Municipality and any governing body with jurisdiction over such matters. Notwithstanding the foregoing, in the event that Operator and Municipality agree in writing that the lead track need not be operated over, or if service is temporarily suspended on the lead track as described herein, lack of service will not constitute a failure by Municipality or Operator to provide freight rail service as defined in this section. 13 September 22, 2021 14.2. Notice of Default. A declaration of default shall be made in writing and delivered to the alleged defaulting party by certified mail sent to the address shown below. The declaration of default shall identify the action or inaction constituting the default and shall cite the term(s) of this Agreement applicable to the default. The date of default shall be the date of delivery of notice of default or the date required insurance coverage ceased or the date of filing for bankruptcy protection, whichever occurs first. 14.3. Termination for Default. The defaulting party shall be given the opportunity to cure the default or, alternatively, dispute the allegation of default. In the event the party in default elects to cure the default, then the default shall be cured in a manner consistent with the process described herein. If the defaulting party fails to cure the default as required by this Agreement, or if the defaulting party disputes the default claim, then the non-defaulting party may elect to terminate this Agreement. If the non-defaulting party does not elect to terminate the Agreement, said non-defaulting party shall not waive any claims or defenses or otherwise impair any other rights of the party giving notice under this Agreement or any rights of action against the defaulting party for the recovery of damages whether arising under this Agreement or otherwise. 14.4. Ability to Cure Default. 14.4.1. Operator shall have ten (10) calendar days from written notification by Municipality of default by Operator or from the date required insurance coverage ceased or from the date Operator filed for bankruptcy, whichever occurs first, to remove the cause of the default. Such correction shall be completed and available for Municipality review within the ten (10) day period. Upon written petition by Operator, Municipality may extend the period for removal of a default condition. Such extension shall only be given in writing and may not be unreasonably withheld. If the remedial action is satisfactory, Municipality shall provide appropriate written notice to Operator. 14.4.2. If for any reason Municipality is in default of this or other agreement, Operator shall have the right to continue use of the Railroad Easement within the allowed time period until the condition of default is resolved. 14.5. Except as otherwise agreed to by the parties in writing, the contractual obligations of Operator to provide freight rail service and to otherwise use and maintain the Railroad Easement under this Agreement shall cease as provided for herein. In the event the Operator ceases freight rail service due to termination of this Agreement, all other obligations of the parties, including without limitation the liability, hold harmless, and indemnification provisions shall remain in full force and effect. 14.6. It is expected that the Operator will have all agreements with other third-parties that are necessary to fulfill the purpose of this Agreement which is serving customers within the SW Industrial Park and surrounding area. Operator shall always remain responsible for the terms of such third-party agreements, and the Municipality’s termination of this Agreement shall not have the effect of transferring Operator’s obligations to the Municipality. Operator’s hold harmless and indemnification obligations to the Municipality shall include any claims from third-parties. 14 September 22, 2021 14.7. If any proceeding is commenced by or against Operator for any relief which includes, or might result in, any modification of the obligations of this Agreement hereunder, or under any bankruptcy or insolvency laws, or laws relating to the relief of debtors, readjustments of indebtedness, reorganizations, arrangements, compositions or extensions (other than a law which does not permit any readjustment of such obligations), and, unless such proceedings shall have been dismissed, nullified, or otherwise rendered ineffective (but then only so long as such stay shall continue in force or such ineffectiveness shall continue), it may be declared cause for default upon a ten (10) day notice by Municipality to Operator. If all the obligations of Operator hereunder shall not have been and shall not continue to be duly assumed in writing pursuant to a court order or decree, by a trustee or trustees or receiver or receivers appointed (whether or not subject to ratification) for Operator, or for its property in connection with any such proceedings in such manner that such obligations shall have the same status as expenses of administration and obligations incurred by such trustee or trustees or receiver or receivers, within ten (10) days after proceedings shall have been commenced, it may be declared cause for default. Arrangements may be made in such event by Municipality with the trustee or bankruptcy court for continuation of rail service pursuant to this Agreement under such terms as agreed to by Municipality or otherwise ordered by a Court of competent jurisdiction. 14.8. Upon determination by Municipality that the Operator’s remedial action has not removed the default condition, it may provide written notice to Operator of termination and to vacate the Railroad Easement. Upon receiving said notice, Operator: 14.8.1. Shall immediately seek authorization from all governing bodies required to approve discontinuance of service within the SW Industrial Park. In the event governing body approval is necessary, and if Operator does not initiate discontinuance proceedings within thirty (30) days of receiving said notice, the Municipality may seek to terminate such service by prosecuting an application with applicable governing body for the adverse discontinuance of service by Operator. Operator shall vacate the Railroad Easement and cease use of the lead track within twenty (20) days of the effective date of a final, non-appealable decision by any governing body, or in the event of an appeal, a final non-appealable court decision. If Operator does not remove any of its property and equipment within twenty (20) days, Municipality shall have the option to remove it at Operator's expense; or, 14.8.2. May provide notice to Municipality that it is seeking to assign its rights pursuant to this Agreement. Upon receiving such notice from Operator, Municipality shall grant Operator sixty (60) days to assign its interests in this Agreement. The Municipality may extend this period, but is not obligated to do so. Operator shall not assign its interests in this Agreement without the written consent of the Municipality. The Municipality shall not unreasonably withhold consent to such an assignment. 14.9. In the event that Operator fails or refuses to assign its interest in this Agreement upon default and termination pursuant to paragraph 14.8.2., above, or in the event Operator 15 September 22, 2021 ceases use of and vacates the Railroad Easement pursuant to 14.8.1, then the Municipality shall be entitled to the following: 14.9.1. Monetary damages, including insurance proceeds, as described in paragraph 12, above; and, 14.9.2. In light of the difficulty of determining specific damages due to Operator’s breach, the parties agree that the transfer of the rail ownership of the lead track and all other rail-related improvements within the Railroad Easement, without any encumbrances, from Operator to Municipality. Operator shall provide Municipality with all transfer documents necessary to effectuate this transfer and shall otherwise cooperate in this regard. Operator shall also transfer to Municipality all records available relating to the construction and maintenance of the facilities, along with all records related to any involvement with the STB and any other governing body, but excluding attorney work product. 14.10. Obligations of Operator in the Event of Termination. Operator hereby agrees in the event of termination, for any reason, that it will mitigate the expenses of termination, transfer, or assignment, to the greatest extent possible. In addition to all other obligations in the event of termination, Operator is obligated to remove all cars from the Railroad Easement property within ten (10) days following the expiration of the time authorized to cure any default, or upon its receipt of a final non-appealable decision of the applicable governing body authorizing discontinuance of service, or in the event of an appeal, a final non-appealable court decision, and to deliver all cars to or from shippers served through the lead track and other improvements within the Railroad Easement property, which are in transit to, or from any source. 14.11. Immediate Suspension of Rail Operations. Upon emergency notice from Municipality or other authorized body (by telephone and later confirmed in writing), Operator shall cooperate in using its discretion to immediately suspend the movement of trains or motive power when, in the reasonable judgment of Municipality or other authorized entity, after consulting with Operator if possible, operation of trains or motive power would be unsafe or if the liability insurance coverage of Operator lapses, is suspended, or is canceled for any reason, or is less comprehensive than is required in this Agreement. Operation of trains and motive power by Operator shall at its discretion remain suspended until the president or general manager of Operator is contacted by Municipality and until the safety hazard is resolved and/or the required insurance coverage is reinstated. Suspension of operations for safety reasons shall be ordered when operations are not or would not be in compliance with applicable safety regulations. At the option of Operator, safety officials of a authorized governing body may be called upon to determine the existence or non-existence of any safety hazard cited by Municipality as a sufficient reason for suspending operations. In the event of any service suspension having an expected duration of at least twenty-four (24) consecutive hours, Operator shall file all required notices with any governing body. 14.12. Force Majeure. The parties hereto will be excused from performance of any of their respective obligations hereunder, for the duration of any interruption occasioned by any event beyond their respective control (not due to their own fault or actions), which shall include, without limitation, except the unavailability of insurance coverage in full accordance thi 16 September 22, 2021 Agreement or any amendment thereto: acts of God; strikes or other labor troubles; other causes beyond the reasonable control of the parties; interruption of service caused by explosion, fires, vandalism, or malicious mischief; or unavoidable interruption or cessation of service for a period of less than one hundred twenty (120) days caused by a connecting railroad. Operator shall not be required to operate with liability insurance coverage levels less than those set forth in this Agreement, but may be declared in default for non-compliance as described herein. 15. ASSIGNMENT. Operator may assign its interests in this Agreement with the consent of the Municipality, which shall not be unreasonably withheld. 16. REPRESENTATIONS, WARRANTIES AND COVENANTS. 16.1. Operator. Operator represents and warrants to and covenants with Municipality as follows: 16.1.1. Operator has the power and authority to enter into this Agreement and to carry out its obligations under this Agreement. 16.1.2. To the best of its knowledge, the execution of this Agreement and the providing of the freight rail service it is obligated to provide will not violate any statute, rule, regulation, order, writ, injunction or other decree of any court, administrative agency or governmental body. 16.1.3. In the event that termination occurs and Operator is duly removed, and Municipality requires Operator to do so, Operator will support Municipality efforts to provide a replacement freight rail service, without obligation of Operator to expend additional funds to do so. 16.2. Municipality. Municipality represents and warrants to and covenants with Operator as follows: 16.2.1. Municipality has full power and authority to enter into this Agreement, and this Agreement has been authorized and approved by the Municipality. 16.2.2. To the best knowledge of Municipality, the entering into and performance of this Agreement on the part of Municipality does not violate any statute, rule, regulation, order, writ, injunction or decree of any court, administrative agency, governmental body, or any other agreement. 16.2.3. In possession of Operator, and hereby made a part of this Agreement by reference, are true and correct copies of the Railroad Easement authorizing the undertaking of the purpose of this Agreement, in effect on the date of this Agreement, and the same have not been released, terminated, or revoked. To the best knowledge of Municipality after due inquiry, nothing in this Agreement conflicts with or is prohibited by the Railroad Easement as of the date of the execution of this Agreement. 17 September 22, 2021 16.2.4. Municipality represents and warrants to and covenants with Operator that Municipality will, during the term of this Agreement, comply with all of the provisions of the Railroad Easement to the extent any such term is not assigned or granted to the Operator through this Agreement. 17. REPORTS AND ACCOUNTS. 17.1. Reports. 17.1.1. Operator shall submit a certificate of covenant compliance with insurance requirements within forty-five (45) days after the end of each quarter year for its operations (for the avoidance of doubt, the Operator shall operate on a calendar year basis); 17.1.2. Operator shall submit to Municipality, in a format and manner reasonably acceptable to Municipality, the following reports: 17.1.2.1. Appropriate documentation showing any changes in operating status or authority of Operator thirty (30) days prior to its effective date; and 17.1.2.2. Immediate notice of damage or injury to persons or property as required by this Agreement. 18. TAXES. As of the date of this Agreement, unless waived or abated, Operator shall be responsible for and pay when due, all taxes due as a result of its possession and use of the Railroad Easement and the facilities and improvements therein. Operator agrees to hold Municipality harmless from, indemnify against and defend all claims and liabilities with regard thereto. 19. OTHER COMMITMENTS. 19.1. Environmental Protection. 19.1.1. Operator agrees that facilities or equipment shall not be acquired, constructed or improved as a part of its operations unless such facilities or equipment are designed and equipped to comply with all applicable environmental requirements, and that all operations conducted under this Agreement will be done in compliance with all applicable environmental requirements. 19.1.2. Operator hereby certifies that no facilities, which will be utilized or improved as a part of its operations, are listed on any state or federal list of violating facilities. 19.1.3. Operator stipulates that it will notify Municipality as soon as it or any subcontractor receives any communication from a state or federal agency indicating that any facility, which will be utilized or improved as a part of its operations within the Railroad Easement is under consideration to be included on any state or federal contaminated property list. 19.2. Nondiscrimination. 18 September 22, 2021 19.2.1. Operator agrees that no otherwise qualified disabled individual in the United States, as defined in Section 705(9)(A) of Title 29 USC and in subchapter II of Section111, Wis. Stats., shall, solely by reason of handicap, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving benefits under this Agreement. 19.2.2. Operator agrees not to engage in any act of employment discrimination as specified in Section 111.322, Wis. Stats, against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, use or nonuse of lawful products off the employer's premises during nonworking hours, or declining to attend a meeting or to participate in any communication about religious matters or political matters. 19.2.3. Operator agrees to comply with the following laws, policies, regulations, and pertinent directions as may be applicable and will require its subcontractors by contractual agreement to also comply: 19.2.3.1. Title VI of the Civil Rights Act of 1964, 42 USC 2000, et seq. 19.2.3.2. Subchapter II of Section 111, Wis. Stats. 19.2.3.3. Section 16.765, Wis. Stats. Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities. 19.3. Operator in its procurement process shall not discriminate against minority owned or operated firms qualified to bid and perform on contracts or subcontracts, or to supply materials for procurement connected with the operations provided under this Agreement. 19.4. These provisions shall include, but not be limited to, the following: employment; upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Operator agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of the nondiscrimination clause 20. GENERAL PROVISIONS. 20.1. Choice of Law. This Agreement shall be interpreted in accordance with the statutes and laws of the United States of America and the State of Wisconsin. Venue for resolution of any dispute shall be the state or federal court district within which Winnebago County is located. 20.2. Public Records. Certain records related to this Agreement may be subject to Wisconsin Public Records Law, Section 19.31, et seq., Wis. Stats., whether retained by the Municipality or by the Operator. Operator agrees to fully cooperate with all open records requests received by the Municipality. Operator retains the right to challenge any records request, but must do so within a time frame that does not delay the Municipalities response 19 September 22, 2021 to such request. Operator’s challenge shall be at its sole expense, regardless of the outcome of the challenge. 20.3. Notice. Any notice required or permitted under this Agreement shall be personally served on or mailed by certified United States mail, return receipt requested, postage prepaid, to the following addressed persons at the following addresses and to such other persons and addresses as the following persons shall direct by notice pursuant to this Section: City of Oshkosh ATTN: Community Development Director 215 Church Avenue Oshkosh, WI 54901 Wisconsin & Southern Railroad, L.L.C. ATTN: General Counsel 315 W. 3rd Street Pittsburg, KS 66762 Watco Transloading, L.L.C. ATTN: General Counsel 315 W. 3rd Street Pittsburg, Kansas 66762 20.4. Status of Operator. Operator (including officers, directors, employees, agents or representatives thereof) is an independent contractor, and in no way shall it be deemed an affiliate, partner, co-owner, or associated in any manner whatsoever with Municipality. 20.5. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Operator's rights hereunder may be assigned by way of assignment, sublease, license or otherwise, directly or indirectly, only upon Municipality's prior written consent. This Agreement shall not create rights of any sort in Operator to assign, sublease or transfer, in any fashion whatsoever, its rights under this Agreement to any other person, firm or corporation, including any affiliated corporation, firm or person. 20.6. Severability. If any term, covenant, condition or provision (or part thereof) of this Agreement, or the application thereof to any party or circumstance, shall at any time or to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision, or remainder thereof, to parties or circumstances other than those as to which it is held to be invalid or unenforceable, shall not be affected and shall be valid and be enforced to the fullest extent permitted by law. 20.7. Amendments, Consents, and Approvals. No term or provision of this Agreement, or any of its attachments to which Municipality is a party, may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by both parties to this Agreement. Consents and approvals required under this instrument and interpretations of this instrument may be made or granted by letter from one party to the other party hereunder or by an exchange of letters between the parties. 20 September 22, 2021 20.8. Headings. The headings used in this Agreement are used for convenience and identification purposes only and do not form a part of this Agreement. 20.9. Compliance by Operator with Agreement. Operator acknowledges it has reviewed the Railroad Easement, and will meet all of the covenants and conditions required therein of Municipality insofar as the same are now the responsibility of Operator through this Agreement. Notwithstanding the foregoing, Municipality shall not release, abandon, terminate, alter, amend, revoke or modify the Railroad Easement without the prior written consent of Operator. It is the intent of Municipality not to enter into any other agreement without Operator consent, which would adversely affect the rights of Operator to fully utilize the Railroad Easement. 20.10. Additions or Extensions to Present Track. The City intends to expand the SW Industrial Park in the future and, therefore, intends to expand the lead track to serve the freight needs of such future expansions. In that event, Operator agrees that it will agree to such expansion provided if the terms for such expansion are commercially reasonable. The parties agree that any such expansion would be pursuant to a similar agreement as the current Agreement in which the Operator would construct appropriate rail facilities at its cost and thereafter operate such freight rail facilities to reasonably serve the needs of customers of the SW Industrial Park. The preceding components of a future agreement between these parties does not commit either party to enter into any particular future agreement, but only serves to indicate a general agreement to work in good faith towards the identified future goal. 20.11. Failure of Municipality to Obtain and Retain Right of Possession and Limitations on Municipality and Operator. In the event Municipality loses its right to use the Railroad Easement for any reason, then this Agreement terminates and ceases, and no liability attaches to Municipality for such termination, provided that Municipality has fulfilled its obligation herein to offer Operator an opportunity to cure any such default of the Railroad Easement on behalf of the Municipality. Upon termination of the Railroad Easement, Operator shall promptly remove all rail and any improvements within the Railroad Easement and leave the underlying real property in a condition materially similar to the surrounding land uses and grades existing at the time of termination, or its condition as of the date of this Agreement, whichever may be more cost effective. 20.12. Specific Performance. Operator and Municipality shall have the right, as provided by law, to require specific performance by the other party of the other party's obligations under this Agreement. This right may be asserted at any time after thirty (30) days from the time Operator or Municipality has first notified the other party of the other party's obligation to perform. 20.13. Execution. This instrument shall be fully executed in duplicate with a copy being delivered to each party, and in such further counterparts as may be desired by the parties. 20.14. Entire Agreement. This Agreement together with those documents that are referred to herein constitutes the entire agreement between the parties and supersedes any and all prior agreements, draft agreements, and oral understandings. 20.15. This agreement shall be recorded with the Winnebago Register of Deeds and attached to each parcel affected by this Agreement. 21 September 22, 2021 SIGNATURE PAGE FOLLOWS 22 September 22, 2021 IN WITNESS WHEREOF, the City of Oshkosh, has caused this Agreement to be signed by its duly authorized officers, this ______ day of _______________, 2021. WITNESS: CITY OF OSHKOSH ________________________ _____________________________________________ Mark A. Rohloff, City Manager ________________________ _____________________________________________ Pamela R. Ubrig, City Clerk Approved as to form: ________________________ Lynn A. Lorenson, City Attorney STATE OF WISCONSIN } } SS COUNTY OF WINNEBAGO} Personally came before me this ______ day of ___________________, 2021, the above-named __________________, to me known to be the person who executed the foregoing instrument. * Notary Public, State of My Commission: 23 September 22, 2021 IN WITNESS WHEREOF, the Wisconsin & Southern Railroad, L.L.C., by its Managers, has caused this Agreement to be signed by its President, this ____________day of __________, 2021. WITNESS: WISCONSIN & SOUTHERN RAILROAD, L.L.C. ___________________________, Managing Member STATE OF KANSAS } } SS COUNTY OF ____________ } Personally came before me this ______ day of ___________________, 2021, the above-named __________________, to me known to be the person who executed the foregoing instrument. * Notary Public, State of My Commission: