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Home My WebLink About33613 / 85-09. . October 3, 1985 (CARRIED PURPOSE: LOST LAID OVER #9 �Y�]1�L�SiPi WITHDRAWN ) APPROVE AGREEMENT WITH CHICAGO & NORTHWESTERN RAILROAD INITIATED BY: DEPARTMENT OF PUBLIC WORKS BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached agreement with the Chicago and North Western Transporation Company for sanitary sewer and water main easements is hereby approved. BE IT FURTHER RESOLVED that money for this purpose is hereby appropriated from: Account No. 866-500 - Water Utility Transmission and Distribution, Miscellaneous Expenses Account No. 910-690 - Sewer Utility Sanitary Sewer Sundry Expenses SUBMITTED 3Y APPHOVED - 12 - RESOLUTION # 9 Form 'L036 - Page 1 Revised 1981 CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY (hereinafter called "Company") hereby licenses the CITY OF OSHKOSH, WISCONSIN (hereinafter called "Licensee") to construct, maintain and,use a 12 inch water main and an 8 inch sanitary sewer (hereinafter called "facility") upon the prop- erty and under the track of the Company at Oshkosh, Wisconsin in the location and position, and in accordance with the specifications shown on map dated August 16, 1985 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 aiiempt io use said facility fcr any other or different purpose than that above specified, then the Company may, at its option, immediately revoke this license. The foregoing license is subject to the following conditions: For the privileges herein permitted the Licensee shall pay to the Company, in advance, a charge of Sixty Dollars ($60.00) per annum, or fraction thereof, beginning October 1, 1985, subject to revision at any anniversary billing date. FIRST. The work of construction and maintenance shall be done and completed in good dilu W`v-Kfilaii� iiCc (ildiiiiE�' u� i.iic SC�c cXae^�c �F �� o�l'�, Licens°e. c�i�i �ynr�r ch?11 ha t{nn,e l,� 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 Chief Engineer 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 his opinion decrease the hazards incident to said facility; but any such inspection or required charges or any failure to so inspect, or to require changes to be made, shall not effect any o` the obligations assumed by the said Licensee hereunder. SECOND. The said Licensee shall bear the cost of all protection which the company may reGuire 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 neces- sary 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 promptly upon re- ceipt of bill therefor. - 12a - rorw Zusb — Nage "L Revised 1981 RESOLUTION # 9 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 Co+rpany because of the construction, existence, operation or use of said facility, the Licensee, or the business conducted in connection with said facility, and shall reimDurse the CoRnany for any such taxes, license.-fees or other charge which may be paid by the Company promptly uporr the presentation by the Corpany of bills therefor. FOURTH. The said Licensee will give to the Chief Engineer of the Conpany at ledst ten days' notice in Nriting before entering upon the right of vray of the Company for construction purposes, or for the purpose of making necessary repairs. The Corrqany 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 way without the ten days' notice above referred to, and shall proceed forthNith to make such repairs, and upon failure to do so Nithin ten days, the Corrpany shall have the right to make saic� repairs and collect the entire cost thereof from the Licensee. Tt�e Cor,pany reserves the right, in case in its opinion the safety of its tracks or property demands it, to make emergency repairs without notice to the Licensee and fo collect the cost thereo` from Licensee as herein provided. FIFTH. Licensee agrees that in the construction, maintenance, and use of the facility, it wtill comolv with all applicable law5, includinq, but not limited to, any laws, standards, regulations, or permit requirements relating to environmental pollution or contamina*_ion or to occupational heaith and saf2ty; and Licensee agrees to indemnify and hold harmless tne Corpany 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 rzlating to environmentzl pollution or contamination, or to occupational health and safety. SIXTH. It is understood by the Licensee that said facility is subject to and may increase the danaers and hazards of the operation of the railroad of the Corrnany, and that this license is subject ta all risks thereof. Therefore, and as a material consideration to the Corr�any for entering into this lic=nse and without which the Corpany will not enter same, the Licensee agrees to assume and pay for ail loss or damage to property whatsoever, and injury to or death of any person, or persons whomsoever, including all costs and expenses incident thereto, however arising from or in connection with existence, construction, maintenance, repair, renewal, reconstruction, operation, use or removal of said facility, or any defect thzrein or failure thereof, or the failure of the Licensee or members, officers, agents or erplayees of the Licensee to abide by or com�ly with any of the terms or conditions of this license; and the Licensee forever indemnifies the Company against and agrees to save it harmless from any and all claims, demands, laHSUits or liability for any such loss, damage, injury and death, costs and expense, even though the operation of the Corrpany's railroad may have caused or contributed thereto. Notice to or knowledge by the Cort�any of any act or omission by the Licensee Hhich is or might be a breach by the Licensee of any of the terms or COl1d7L]Ofl>' Of Lh1S n9fE°r��i� CG �c �ic� i0('i6eu' `Uj/ G(12 Licensee, and �ih!: dCqU125CEf152 Dy Lf12 CoRpany 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. SEYENTN. The Conpany reserves the right to use, occupy and enjoy its tracks, proQert� 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 necessitate any change, repair, renewal, removal or relocation of said facility, or any part thereof; the Licensee shall perform such work at such time as the Cortpany may approve and if the Licensee fails to do so such vrork may be performed by the Corrpany at the expense of the Licensee and the said CorrQany shaJl not be liable to the Licensee on account of any damage growing out of any use which the Co�any 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 prior to the actual date of execution hereof, it is understood and agreed that this license shall nevertheless be of the same force and effect as though same had been executed by Lhe parties prior to such performance. -- ,,:, . , — 12b — RESOLUTION # 9 Farm 2036 - Page 3A Revised 1981 EIGHTH. The Company shall have the 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, or upon any other revocation of this license, the Licensee shall promptly, and in the manner directed by said Chief Engineer, remove all construction hereby authorized from the premises of the Company and leave said premises in the same condition in which they were before the installation of the same. Upon default of the Licensee so to do, the Company may remove the same and restore its premises, and the Licensee will promptly pay to the Company the cost of so doing. HINTH. The waiver 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 waiver 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 iicense is personal tc; said Licensee ard is not assignable or transferable, without the written consent of the Company being first obtained. ELEVENTH. In further consideration of the Company's giving to the Licensee the rights anc privileges above specified, the Licensee, by the acceptance of this license, hereby agrees tha� it will not levy or assess any special tax or special assessmer.t against Company or against or upor Company's properties for the construction or use of the improvement of which said facility is a part; and, the Licensee hereby forever indemnifies Company against and agrees to save Company harmless from any and all claims, demands, lawsuits or liability whatsoever for any such special tax or special assessment. If notwithstanding the foregoing provisions any such special tax or special assessment shall be levied or assessed upon or against said Company's properties, the Company shall have the following elections to wit: (a) Company may make such payments as may be necessary to satisfy and discharge any liens for such special tax or special assessment and in case of such payment the Licensee agrees to make repayment on demand with interest at the rate of five per cent (5%) per annum from thP date of such payment so made by Company. (b) Company may file this license agreement for recording in the office of the Recorder of Deeds of the county in which said properties are located and such filing shall constitute a complete discharge and release of any lien against said Company's properties for such special tax or special assessment. (c) Company may terminate this license by filing notice of termination with such RecorGe- of Deeds for recording and forwarding a copy thereof through certified or registered mail, postage prepaid to Licensee whereupon all rights, privileges and interests herein granted to Licensee shall immediately cease and determine with the right of Company to make immediate re-entry and without any further obligations or any liability on the part of Company in respect to any payments, setoffs, counterclaims, recoupment, crossbills or cross demands. All rights, remedies and elections of Company shall be cumulative. TWELFTH. 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. - 12c - Form 2036 - Page 4A Revised 1981 In Witness Whereof this instrument is executed this ATTEST Assistant Secretary RESOLUTION # 9 day of CHICA60 AND NORTH WESTERN TRANSPORTATION COMPANY 19 By Vice President - Engineering Pursuant to authority granted by resolution of the of the CITY OF OSHKOSH, WISCONSIN, adopted The undersigned, the Licensee mentioned in the foregoing license, hereby accepts the same subject to the terms and conditions therein stated. Attest ty Cle CITY OF OSHKOSH, WISCONSIN - ZZd - Approved 1 � �' C � `�- � �L t.') 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