HomeMy WebLinkAbout30687 / 80-13May 1, 1980 # 13 FZESOL[Ti'ION
PURPqSE: C�IS�'i' � AGREEhff�1T - S00 ISNE RAIS.I�AD AND B�7NEF2 PAC�CAQNG, INC.
INITIATID BY: CITY ADMINISTRZITIC,�I
HE IT RESOLVED by the Conmon Council o£ the City of Oshk�h that the
proper City o£ficials are hereby authorized and directed to consent to the
attached Agree.�nt wi.th the Soo Lir,�, Pailrxd Com{�any anc1 Banner Packaging,
Inc. for the o�rati.on and maintenan� of appmxiira'-�e1y 320 £eet of spur trac7c.
.
SUBMITTED BY
GPPfiOVED
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J.
,
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THIS SUPPLEMENTAL AGRE.
the day of
RAILROAD COMPANY, Minneapolis,
"Railroad Company", and BANNER
hereinafter called "Industry",
Oshko5h, WITNESSETH:
MED7T, made and entered into as of
1980, by and between SOO LINE
Minnesota, hereinafter called
PACKAGING, TNC., Oshkosh, Wisconsin,
and consented to by the City of
WHEREAS, the Railroad Company and the City of Oshkosh
entered into an agreement dated September 11, 1979 covering the
construction, maintenance and operation of a lead track approximately
L,500 £eat in length which lead track is shown by a black line be-
tween the letter "A", "B" and "C" on the map hereto attached marked
"Exhibit A" and:
WHEREAS, the Industry desires to construct a spur track
connecting to said lead track and to have the Railroad Company
operate over said spur track which is approximately 320 feet in
length and is shown by a red line be�ween the letters "D" at the
point of switch an3 "E" at the end of track on "Exhibit A" and the
Railroad Company is willing to operate over said spur track in
serving the Industry upon certain terms and conditions:
NOW THEREFORE, in consideration of the premises, the parties
h�reto agree as follows:
1. CONSTRUCTION
The Industry, at its sole risk and expense, shall arrange
for all necessary materials, labor and supervision required for the
grading and construction of the spur tsack. Where any gzading or
track constzuction i° to be gerforned on the Railroad Company's
right-of-way, the Industry and its contractor shall first obtain the
written permission of the Railroad Company's Chief Engineer before
entering upon said right-of-way and saicl Engineer may require the
presence of a£lagman at the Industry's expense during operations on
said right-of-way. The Industry shall indemnify the Railroad Company
for and hold it harmless against any and all loss resulting from
damage to property or injury to or death of persons arisinq out of
such grading operations. The Industry sha11 also at its sole risk
and expense furnish, install and in the future maintain any drainage
structure which may now or in the future be required to properly
drain the spur track. Any work perEormed by the Industry or its
contractor in connection with such drainage structures on the
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Railroad Company's right-o£-way sha11 be subject to the same
requirem�nts applicable in the case of grading op�rations and
shall ba subject to the same indemnity.
2. OWNERSHIP
The Industry shall own the spur track.
3. MAINTENAI3CE
The Industry sha11 furnish a11 necessary materials, labor
and supervision, and perform a11 work that may be required for or
in connection with th� maintenance, repair, renewal and changing
of the spur track, its roadbed and appurtenances, so as to conform
with the standards of the Railroad Company and the requirements of
competent public authority. In the event Industry fails to perform
necessary maintenance, Railroad Company shall b? entitled to make
all necessary repairs at the sole cost and expense of Industry and
to cease operations over the spur track until such repairs are
completed.
4. TAXES
The Industry
that may be lawfully
authority against the
operation of the spur
S. CLEARANCES
shall assume and pay all taxes and assessments
levied or assessed by any competent public
spur track, or on account of the maintenance or
track.
The Industry sha11 not permit any material, structure or
equipment, including any appurtenance thereto, or any oth�r obstruction
to be placed or remain nearer than 8 feet 6 inches ho.rizontally
(m>_asured ae right dnglesj from th� center line of the spur track or.
nearer than 22 £eet vertically measured from �he top of the high rail;
or permit any pole or tower to be placed or remain nearer than 12 £eat
0 inches horizontally (measured at right angles) from the nearest rail
of the spur track; or permit any utility, drainage or conveyance pipe
or facility to be installed or remai.n underneath the spur track; or
permit any wire or cable to b° installed or remain over the spur track,
or permit excavatzon to made or remain nearer than 15 feet laterally
from the center line of the spur track without securing the written
consent of �he Railroad Company. If the Industry sha11 fail to comply
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with the provisions oP this section, the Railroad Company may
discontinue operating over the spur track until the Industry
shall have £ully complied therewith.
6. LIABILITY
a) It is understood that the movement of railroad locomotives
involves some risk of fire. The Industry assumes all responsibility
for, and agrees to indemnify the Railroad Company and its agents
against loss or damage to property upon the premises of the Industry,
regardless of the Railroad Company's negligence arising from fire
caused by locomotives operated bp the Railroad Company on the spur
track, or lead track, or in theis vicinity, for the purpose of serving
the Industry, except to tk:e premises of the Railroad Company and to
rolling stock belonging to the Railroad Company or to others, and to
shipments in course of transportation.
b) The Industry also agrees to indemni£y and hold harmless
the Railroad Coznpany and its agents £or loss, c7amage, injury or
death from any act or omission negligent or otherwise o£ the Industry,
or its employees or agents to the person or porperty of the parties
h�reto and their empioyees, and to the person or proper,ty of any
other person or corporation, while on or about tne spur trac'.c, or
lead track, and if any claim or liability other than from fire shall
arise from the joint or concurring negligence of both parties hereto,
it sha11 be borne by them equally.
7. LSSE
The Railroad Company shall have the right to use the whole or
any part of said spur track, provided tha� such use shall not unrea-
sonably interfere with the use thereby of the Indixstry. Neither party
hereto sha11 permit or authorize the use of said spur track by or £or
the benefit of any other person, firm or corporation no'4 on? of the
parties hereto without the written consent of the other party.
8. TERMII3ATION AND REMOVAL
This agreement sha11 b_ subject to termin.stion by the Railroad
Company at any time upox� 60 days written notice to the 2ndustry,
certified mai1, at Oshkosh, Wisconsin, if the spur track sha11 no
longer b� required to reach an3 serve the Industry, o.r if tha Industry
shall fail to perform or comply with any of the provisions of this
a�reem�nt and such default continues for a period of 30 days after
written notice thereof by tlze Railroad Company to the Industry, or if
compliance with the requisements of any 1aw, ordinance or order ot any
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competent public authority, or change in the grade of the
Railroad Company's main line, or other changed conditions,
sha11 make continued use of the spur track impracticable,
or if the City of Oshkosh sha11 revoke it's consent hereto.
It sha11 be subject to termination by the Industry at any
time upon 60 days written notice to the Railroad Company,
certified mai1, at Minneapolis, Minnesota.
9. LQAIVER OR nREACH
The waiver by the Railroad Company of a breach by the
Industry of any provision of this agreement sha11 be limited
to the act or omission constituting such breach, and shall not
be construed as a continuing or permanent waiver.
10. ASSIGNMENT
The Industry shall not assign this agreement, or any
interest therein, without the written consent of the Railroad
Company. Subject thereto, this agreement snall inure to the
benefit of, and b° binding upon the legal representatives,
successors and assigns of the respective parties.
11. VALIDITY
If any of tne provisions o£ this agreement sha11 be
judicially determined to ba invalid or unenforcible, such
provisions sha11 Ue considered to be eliminated herefrom, and
this agreement shall continue in full force and effect in all
respects as though such invalid or unenforcible provisions
had never been included herein.
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12. A11 terms of the September 11, 1979 agreement, except those
modified by this agreement, are in full force and effect.
In the przsence of as to
Railroad Company:
In the prasence of as to
Industry:
��.l�, ��1�Q�_
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Consented to this day of
by the City of Oshkosh, wisconsin.
BY—
Its
By—
Its
APP�C,,,. ,J I� �-�j�
FOR EXECU' , ."_ _ J ' ;
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��, Gen. Supt.
C
SOO LINE RAILROAD COMPANY
''�_I
D. M. CAVANAUGii
Vice President - Operations
BA�ER PACKAGING, IIJC.
By ��",�"�"t'�.I t�'�� �-
-5-
RONALD E. SOWLE
President
, 1980
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