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Home My WebLink About35563 / 89-301 OCTOBER S 1989 #301 RESOLUTION (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: ACCEPT LICENSE AGREEMENT INITIATED BY: CITY ADMINISTRATION PLAN COMMISSION RECOMMENDATION: Approved 6-2 BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized and directed to enter into the attached License Agreement with the Fox River Va11ey Railroad Corp. for the installation of sanitary sewer and water main on Railroad property north of E. 24th Ave. and east of S. Main St. SUBP,�TTTED BY , y...m->n5r;,�-, �i�� _ f�t.�,��_..��....w...�.��._.� � �r - 14 - , Res. #301 FOX RIVER VALLEY RAILROAD CORPORATION (hereinafter called "Company") hereby licenses CITY oF osxxosx � (hereinafter called "Licensee") t0 COnStrUCt, maintain and US2 a sanitary sewer and water main (hereinafter called "facility") upon the property and under the track of the Company dt Oshkosh, Wisconsin in the location and position, and in accordance with .the specifications shown on map ,�B„ dated August 31, 1989 hereto attached marked Exhibit "A" and, by this reference, made a part hereof. The foregoing license is given upon such express terms and conditions as are inserted below, as well as those contained upon the subsequent printed pages, and should the licensee at any time violate any of said terms or conditions, or use or attempt to use said facility for any other or different purpose than that above specified, then the Company may, at its option, inunediately� revoke this license. The foregoing license is subject to the following conditions: FIRST. The work of construction and maintenance shall be done and completed in good and workmanlike manner at the sole expense of the said Licensee. Said work shall be done in such manner�as in no way to interfere with or endanger the use of the property or tracks of the Company, or the operation thereon of any engines, cars or trains: The Engineering Department of the Company shall have the right to inspect such work from time to time and to require such changes to be made as will in it's opinion decrease the hazards incident to said facility; but any such inspection or required changes or any failure to so inspect, or to require changes �to be made, shall not effect any of the obligations assumed by the said Licensee hereunder. SECOND. The said Licensee shall bear the cost of all protection which the Company may require for its tracks or property during construction and maintenance hereby authorized and of all repairs, changes, additions or betterments •to said Company's track or property made necessary on account of same. If in the judgement of the Company it shall be necessary to provide support for its tracks during the work of construction or maintenance the Company will provide such support, and the entire cost thereof will be paid by the said Licensee promptiy upon receipt of bill therefor. l. - 14a - , � ' ' �Res:-�#301 - • THIRD. The Licensee shall pay all taxes� general and special , license fees or other charges which may become due or which may be � assessed against the premises of the Corrpany because of the construction, existence, operation or use of said facility, the Licensee, or the ,business conducted in connection with said facility, and shall reimburse the Corroany for any such taxes, license fees or other charge which may be paid by the C�mpany promptly upon the presentation by the Company of bills therefor. � FOl1RTH. The said Licensee will give to the -Er�grg.:"D�pt. : of the Coripany at least ten days' notice in writing before entering upon the right of Nay of the Corr�any for construction purposes, or for the purpose of making necessary repairs. The Company reserves the right to judge of the necessity of repairs to said facility, and to require the Licensee to make such repairs upon ten days' notice in writing. In such case, said Licensee may enter upon said right of Hay without the ten days' notice above referred to, and shall proceed forthNith to make such repairs, and upon failure to do so within ten days, the Corrpany shall have the right to make said repairs and collect the entire cost thereof from the Licensee. � Tt�e Company reserves the right, in case in its opinion the safety of its tracks or property demands it, to make emergency repairs without noti�e to the Licensee and to collect the cost thereof from Licensee as herein provided. � FIFTH. Licensee agrees that in the construction, maintenance, and use of the facility, it will comply with all applicable laws, including, but not limited to, any laws, standards , regulations, or permit requirements relating to environmental pollut�on or contamina�ion or to occupational health and safety; and Licensee agrees to indemnify and hold harmless the Corrpany from any and all claims, demands� lawsuit, or liability for loss, fines, damage, injury, and death and all expenses and costs, including attorneys' fees� resulting from or arising out of the construction, maintenance, or use of the facility, including any discharge or emission therefrom or for the violation of any law, standard, regulation, or permit requirement rela�ing to environmental pollution or contamination, or to occupational health and safety. SIXTH. It is understood by the Licensee that said facility is subject to an.d may increase the dangers and hazards of the operation of the railroad of the Company, and that this license is subject to all risks thereof. Therefore, and as a material conside;ation to the CorrQany for entering into this license and without which the Company will not enter same, ±!:- Licensee agrees to assume and pay for all loss or damage to property whatsoever, and injury to or death of any person, or persons whomsoever, including all costs and expenses ineident thereto, however arising from or in connection with existence, construction, maintenance, repair, renewal , reconstruction, operation, use or removal of said facili*y, or any de`ec*_ therein or failure thereof, or the failure of the Licensee or members, officers, agen�s or enployees of the Licensee to abide by or corrply with any of the •terms or conditions of this license; and the Licensee forever indemnifies the Company aaainst and agrees to save it harmless from any and all claims , demands, lawsuits or liability for any such loss, dar�aa�, injury and death, costs and expense, even thoc;gh the cperation of the Company's railroad mav have caused or contributed thereto. Notice to or knowledge by the Company of any act or omission by the Licensee which is or might be a breach by the Licensee of any of the terms or conditions of this Agreement to be performed by the Licensee, an.d the acquiescense by t��e Corrpany in or to such act or omission, shall neither be considered to relieve the Licensee of any obligation assumed by it under this paragraph nor be considered to be a waiver or release by the Company of any rights granted to it under this paragraph. SEYENTIi. The Corr�any reserves the right to use, occupy and enjoy its tracks, propPrty and right of way, for such purpose, in such manner, and at such time as it shall desire, the same as if this instrument had not been executed by it. If any such use shall n�ecessitate any chanae, repair, renewal, removal or relocation of said facility, or any part thereof, the Licensee shall perform such work at such time as the Corrpany may approve and if the Licensee fails to do so such Work may be performed by the Corrpany at the exp.ense of the Licensee and the said Corrpany sha,ll not be liable to the Licensee on account of any damage growing out of any use which the Company ' may make, of its tracks. property and right of way. In case any of the terms or provisions of this license have been performed or carried out pri or to I :he actual date of execution hereof, i t i s understood and agreed that thi s 1 i cense shall nevertheless be of the same force and effect as though same had been executed by the parties prior to such performance. • 2. - 14b - Res. #301 EIGNTH'. The Company shall have th� right at any time to revoke this license by giving thirty days' notice in writing to the Licensee and at the expiration of the time limited by �said notice upon any other revocation of this license, the Licensee shall promptly, and in the manner directed by the Engineering Department, remove all construction hereby authorized from the premises of the Company and leave said premises in tl�e same condition in which they were before �':z install�tion of the same. Upon default of the Licensee so to do, the Company may remove the same and restore it's premises, and the Licensee will promptly pay to the Company the cost of so doing. � � ' NINTH. Tf�e 4�aiver of a breach of any of the terms or conditions hereof shall be limited to the act or acts constituting such breach, and shall never be construed as being a continuing or permanent vraiver of any such terms or conditions, all of which shall be and remain in full force and effect as to future acts or happenings, notwithstanding any such waiver. TENTH. This license is personal to said Licensee and is not assignable or transferable, without the written consent of the Company being first obtained. ELEVENTN. In consideration of the granting of this license, the Licensee shall pay to the Company a fee of one Hundred ana no/ioo (Sioo.00) Dollars fOr expenses in connection with the pr�paration and execution Of th7S agreementj and shall pay an annual fee of Four hundred Sixty and No/100 (5460.00) Dollars said sum payable each July 1, beginning and each year thereafter. The annual fee is subject�to revision at any anniversary billing date. In further consideration of the granting of this license for the use of it's property, the Licensee, by the acceptance of this license, agrees that it will indemnify and save harmless the Company from any special tax or assessment that shall be made or levied, at any time, against the Company; or it's 'property, �in connection with or on account of the construction, maintenance or replacement of the public improvement of which said facility is a part, provided however, in the event the foregoing �commitment is �for any reason held to be invalid or unenforceable, then the Licensee, by the acceptance of this license, agrees that it will pay to the Company as additional compensation �for the granting of this license an amount equal to amount paid by the Company under any special tax or assessment in connection ti�rith or on account of the construction, maintenance or replacement of the public improvement of which said facility is a part. T4JELFTH. Licensee further agrees that there is no benefit to the Company's properties , either for railroad use or for any possible use in the future from the construction of the facility or project of which said facility is a part. � � In Witness 4lhereof this instrument is executed this day of , 19 ATTEST: FOX RIVER VALLEY RAILROAD CORPORATION gy Manager of Structures Pursuant to authority granted by resolution of the of the , adopted The undersigned, the Licensee mentioned in the foregoing license, hereby accepts the same subject to the terms and conditions therein stated. CITY OF OSHKOSH Attest: • By (seal ) � e CITY CLERK Tit e MAYOR ' 3. - 14c - I , �� . � .Res. #301 � N � ' -t� ! ' ' y ; i I ► � � ' , $$.a Cn I �- � _.- � ,$ — y �---�—==-"_. 1 17 '�� -- 5 �� ---= 3�� - .. _ I S . N „4 . J � � ___�-�J I' ' ." "�.. . �..� . 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