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HomeMy WebLinkAbout28. 17-197 APRIL 11, 2017 17-197 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE INDUSTRY TRACK AGREEMENT, TRACK LEASE AGREEMENT, FACILITY USE AGREEMENT & DEVELOPMENT AGREEMENT WITH WISCONSIN & SOUTHERN RAILROAD AND WATCO TRANSLOADING/TRANSLOAD FACILITY, SOUTHWEST INDUSTRIAL PARK INITIATED BY: COMMUNITY DEVELOPMENT WHEREAS, the City applied for a State of Wisconsin Department of Transportation Facilities Transportation Economic Assistance (TEA) grant to provide financial assistance to the City to develop a transload facility in the Southwest Industrial Park to enable industrial development to occur; and WHEREAS, the City has been awarded a $1,008,266 TEA grant from the Wisconsin Department of Transportation for said purpose; and WHEREAS, in order for said project to be carried out, the following Agreements need to be entered into between the City, Watco Transloading LLC, and Wisconsin & Southern Railroad: -Industry Track Agreement between Wisconsin and Southern Railroad, Watco Transloading and City of Oshkosh. -Facility Use Agreement between Watco Transloading and City of Oshkosh -Track Lease Agreement between Watco Transloading and City of Oshkosh -Development Agreement between Watco Transloading and City of Oshkosh NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized to enter into the attached agreements to develop a transload facility in the Southwest Industrial Park, any changes in the execution copy being deemed approved by their respective signatures, and to carry out all actions necessary to implement the City's obligations under these Agreements for said project. Exhibit A 1 Proposed multi trans fa�ility in the Southwest Industrial Park along Global Parkway � I Future rail I -------------- � spur extensions I ------------------------------------------ o ..i r v PJB 150' 0 75' 150' 300' / GRAPHIC SCALE: r 150' Exhibit C Funding Sources SOURCE AMOUNT FORM (Cash, Land, Services) City of Oshkosh $433,000 Cash, land, and services Watco Companies LLC $673, 231 Cash and services WisDOT TEA Grant $1,008,266 Cash TOTAL $2,114,497 \ \ W \ 1 Exhibit D „ I I I Lot ; I +/- 15 acres Future rail I � --------- ----------- spur ----------spur extension ----------- -------------- Lot 2Proposed \ 12 acres '' ° transload ` facility A 0'7- i 150' 0 75' 150' 300' �1 / GRAPHIC SCALE: r 150' NW WISCONSIN AND SOUTHERN RAILROAD L.L.C. INDUSTRY TRACK AGREEMENT THIS INDUSTRY TRACK AGREEMENT, made as of this day, of 2016, (hereinafter "Effective Date") by and between WISCONSIN AND SOUTHERN RAILROAD, L.L.C. a Wisconsin Limited Liability Company, hereinafter referred to as "Railroad" and WATCO TRANSLOADING, L.L.C. a Kansas Limited Liability Company hereinafter referred to as "Industry" and CITY OF OSHKOSH, WI hereinafter referred to as "Municipality". WHEREAS, Industry and Municipality desires that Railroad: (i) maintain and operate over certain rail, ties, ballast, and appurtenances thereto shown as heavy solid on Exhibit"A" attached hereto and incorporated herein ("Railroad Track"); and (ii) operated over certain additional track shown as heavy hatched on Exhibit "A" ("Municipality Track"), (Railroad Track and Municipality Track collectively, together with all appurtenances, call "Track"), located in the vicinity of Global Parkway in the City of Oshkosh, County of Winnebago, State of Wisconsin, to serve a facility operated by Industry ("Plant"). WHEREAS, Railroad desires to provide such service, subject to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to the maintenance and operation of the Track on the following terms and conditions. OWNERSHIP OF TRACK 1. Railroad shall own the Railroad Track and Municipality shall own the Municipality Track which Industry will operate and maintain. MAINTENANCE OF TRACK 2. (a) Maintenance for the purpose of this Agreement includes, but is not limited to, responsibility for providing proper drainage along the relevant portion of the Track and for keeping the Track free and clear of snow, ice, vegetation, structures, and other obstacles. Maintenance also includes, but is not limited to, responsibility for the maintenance of grade crossing warning devices, stop signs, gates, fences or barriers, roadway construction, track drainage facilities, lighting, track signals and signal maintenance. (b) Railroad shall, for the accommodation of Municipality, maintain the Railroad Track. (c) Industry shall at all times, and at its sole risk and expense, maintain, or cause to be maintained, the Municipality Track in a condition satisfactory to Railroad and in compliance with all applicable Legal Requirements as defined below. Without relieving Industry from any of its obligations under this Agreement, Railroad may refuse to operate over the Municipality Track whenever Railroad, in its sole discretion, determines that the Municipality Track is unsatisfactory for Railroad's operation. If and when Industry has remedied such condition to Railroad's sole satisfaction, Railroad shall resume operation over the Municipality Track. (d) Railroad's operation over the Track with knowledge of an unsatisfactory condition is not a waiver of Industry's obligations contained herein or of Railroad's right to recover for or be indemnified and defended against such damages to property, and injury to or death of persons that may result therefrom. TERM 3. Unless earlier terminated as provided in Section 14, this Agreement shall remain in full force and effect until terminated by either party upon thirty (30) days' advance written notice. COMPLIANCE WITH LAWS 4. (a) Industry shall be responsible for obtaining, without expense to Railroad, all necessary real property rights and public authority and permission, including applicable permits, for the maintenance and operation of the Track. (b) Industry further agrees that it will fulfill all its obligations and exercise its rights hereunder in full compliance with all laws, statutes, regulations, ordinances, orders, covenants and restrictions (collectively, "Legal Requirements")relating to the use of the Track. (c) Prior to entering Railroad's Property, Industry shall and shall cause its contractor to comply with all Railroad's applicable safety rules and regulations. Prior to commencing any work on Railroad's Property, Industry shall complete and shall require its contractor to complete the safety-training program at the Railroad's Internet Website "http://contractorofientation.com". This training must be completed no more than one year in advance of Industry's entry on Railroad's Property. OPERATION OF TRACK 5. (a) Industry shall, at its sole expense, pay all costs for changes, repairs or alterations to the Municipality Track that may be necessary in order to conform to any changes of grade or relocation of the Railroad Track at the point of connection with the Municipality Track, if such change of grade or relocation is required to comply with any Legal Requirement or is made for any other reason beyond Railroad's reasonable control. (b) In the event the Track is used for receiving, forwarding, or storing hazardous materials as defined by any federal, state, or local environmental law or regulation, Industry agrees to comply with all applicable Legal Requirements and with Railroad's further requirements concerning the same. (c) In the event Industry desires to install any gates or fencing across the Track, or to install a track scale, unloading pit, loading or unloading device, adjustable loading dock, warehouse door, or any other structure within Minimal Clearances as defined below (collectively, "Facilities"), Industry shall first submit in writing to Railroad and the Municipality the plans and specifications for such Facilities, and secure written approval from Railroad and the Municipality, which may be withheld in Railroad's or Municipality's sole discretion, before construction of any Facilities is undertaken by Industry. (d) Railroad may require for safety purposes that Industry, at its sole cost and expense, provide flagmen, lights, traffic control devices, automatic warning devices, or any such safety measure that Railroad deems appropriate in connection with the Industry's use of the Track. Industry shall reimburse Railroad within thirty (30) days of receipt of bill rendered therefor for all costs expended by Railroad, including but not limited to the cost of Railroad's Flagman ($500.00 per eight hour day, $95.00 per hour thereafter)in connection with this Section. (e) Municipality shall construct and install, and Industry shall use, maintain, and repair all Facilities at its sole risk and expense, in a manner and of materials satisfactory to Railroad. Municipality and Industry, during the installation, construction, use, operation, renewal, relocation, modification, maintenance and repair of these Facilities, shall exercise reasonable diligence to prevent damage to the property of Railroad or injury to its agents, employees, invitees and contractors. The presence of any Facilities must never be a source of danger to or interfere with the safe operations of Railroad over the Track. In furtherance of the foregoing obligation of Industry but not in limitation of the same, Industry shall do, among others, the following things: Industry shall keep any gates across the Track open whenever necessary, in Railroad's sole judgment, to enable Railroad to safely and efficiently operate over the Track. Industry shall keep unloading pits securely covered when not in actual use and at all times when the Track is being switched by Railroad. Industry must keep all doors firmly secured, and adjustable loading docks at warehouses shall likewise be securely fastened in an upright position when not in actual use and at all times when the Track is being switched by Railroad. Industry shall operate and maintain all other Facilities so as not to negatively affect the safe and efficient operation of Railroad over Track. (f) In the event the public authority having jurisdiction thereover orders the separation of the grade of the Track and any street, road, highway, other rail line or the like, Industry hereby consents to the removal and/or relocation of the Track. DEFINITION OF COST AND EXPENSE 6. (a) For the purpose of this Agreement, "cost" or"costs" "expense" or"expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. (b) All invoices are due thirty (30) days after the invoice date. In the event that Industry shall fail to pay any monies due to Railroad within thirty (30) days after the invoice date, then Industry shall pay interest on such unpaid sum from thirty (30) days after its invoice date to the date of payment by Industry at an annual rate equal to (i) the greater of(a) for the period January 1 through June 30, the prime rate last published in The Wall Street Journal in the preceding December plus two and one-half percent(2 1/2%), and for the period July 1 through December 31, the prime rate last published in The Wall Street Journal in the preceding June plus two and one-half percent (2 1/2%), or(b)twelve percent(12%), or(ii)the maximum rate permitted by law, whichever is less. RIGHT OF RAILROAD TO USE 7. All rights granted to the Industry hereunder are subject and subordinate to the prior and continuing right of the Railroad, without liability to the Industry or any other party for compensation or damages thereto: (i) to use the Railroad Track; (ii) to construct, maintain, renew, use, operate, change, modify or relocate the Railroad Track; and (iii) to allow to be constructed upon its right-of-way such other facilities and to use its right-of-way in any manner, each as Railroad in its sole discretion deems appropriate, provided Railroad uses all commercially reasonable efforts to avoid material interference with the use of the Industry Track by Industry or with provision of service by Railroad to Industry as described herein. CLEARANCES 8. (a) Industry or Municipality shall not place, permit to be placed, or allow to remain, any permanent or temporary material, structure, pole, or other obstruction within 8'/2 feet laterally from the center (nine and one-half(9-1/2) feet on either side of the centerline of curved Track) or from 24 feet vertically from the top of the rail of said Track ("Minimal Clearances"), provided that if any Legal Requirement requires greater clearances than those provided for in this Section 8, then Industry shall strictly comply with such Legal Requirement. However, vertical or lateral clearances which are less than the Minimal Clearances but are in compliance with Legal Requirements will not be a violation of this Section 8, so long as Industry strictly complies with the terms of any such Legal Requirement. (b) Railroad's operation over the Track with knowledge of an unauthorized reduced clearance will not be a waiver of the covenants of Industry contained in this Section 8 or of Railroad's right to recover and be indemnified and defended against such damages to property, or injury to or death of persons, that may result therefrom. (c) Industry shall not place or allow to be placed any freight car within 250 feet of either side of any at-grade crossings on the Track. PUBLIC ASSESSMENTS 9. Industry shall timely pay all compensation, assessments and levies required at any time by a municipality or any other public authority for the privilege of maintaining and operating the Municipality Track, and shall not cause or permit any liens to be filed against the Railroad Track or any Railroad property. In the event any such liens are filed, Industry shall cause such liens to be released or provide security sufficient to bond over any such lien within fifteen (15) days. LIABILITY 10. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, INDUSTRY SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS MUNICIPALITY, RAILROAD, AND RAILROAD'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, HIND OR DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART): (i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS, (ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT, (iii) INDUSTRY'S OCCUPATION AND USE OF RAILROAD'S PROPERTY, (iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE TRACK OR RAILROAD'S PROPERTY CAUSED OR AGGRAVATED BY, OR CONTRIBUTED TO, IN WHOLE OR IN PART, BY INDUSTRY, (v) THE ENVIRONMENTAL CONDITION AND STATUS OF INDUSTRY'S PLANT, OR (vi) ANY ACT OR OMISSION OF INDUSTRY OR INDUSTRY'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER, EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH RESPECT TO WHICH INDUSTRY'S OBLIGATION TO INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE. (b) FURTHER, NOTWITHSTANDING THE LIMITATION IN SECTION 10(a), INDUSTRY NOW AND FOREVER WAIVES ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" OF INDUSTRY'S PLANT OR MUNICIPALITY TRACK FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. INDUSTRY WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF ANY INDEMNITEES. INDUSTRY FURTHER AGREES THAT THE USE OF THE TRACK AS CONTEMPLATED BY THIS AGREEMENT SHALL NOT IN ANY WAY SUBJECT RAILROAD TO CLAIMS THAT RAILROAD IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL RAILROAD BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF INDUSTRY'S PLANT OR MUNICIPALITY'S TRACK UNDER THIS AGREEMENT. (c) INDUSTRY FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF INDUSTRY OR ANY OF ITS AGENTS, INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE. (d) Upon written notice from Railroad, Industry agrees to assume the defense of any lawsuit or other proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Agreement for which Industry has an obligation to assume liability for and/or save and hold harmless any Indemnitee. Industry shall pay all costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. (e) In the event Industry causes any improvement of material or labor to be effected upon the Railroad's Property, Industry shall, at its sole cost and expense, furnish to Railroad, in a form acceptable to Railroad, a fully executed Performance and Payment Bond, by a surety or sureties approved by Railroad, in the amount of [I 10% of the cost of the improvement], as security for the faithful performance of this Agreement and for payment of all persons performing labor or furnishing materials or equipment in connection therewith. INSURANCE 11. Industry shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as otherwise stated in subsection D below)the following insurance coverage: A. Commercial General Liability insurance. This insurance shall contain broad form contractual liability with a combined single limit of a minimum of $2,000,000 each occurrence and an aggregate limit of at least $4,000,000. Coverage must be purchased on a post 1998 ISO occurrence or equivalent and include coverage for, but not limited to, the following: ♦ Bodily Injury and Property Damage ♦ Personal Injury and Advertising Injury ♦ Fire legal liability ♦ Products and completed operations This policy shall also contain the following endorsements, which shall be indicated on the certificate of insurance: ♦ It is agreed that any workers' compensation exclusion does not apply to Railroad payments related to the Federal Employers Liability Act or a Railroad Wage Continuation Program or similar programs and any payments made are deemed not to be either payments made or obligations assumed under any Workers Compensation, disability benefits, or unemployment compensation law or similar law. ♦ The definition of insured contract shall be amended to remove any exclusion or other limitation for any work being done within 50 feet of railroad property. ♦ Any exclusions related to the explosion, collapse and underground hazards shall be removed. No other endorsements limiting coverage may be included on the policy with regard to the work being performed under this agreement. B. Business Automobile Insurance. This insurance shall contain a combined single limit of at least $1,000,000 per occurrence, and include coverage for, but not limited to the following: ♦ Bodily injury and property damage ♦ Any and all vehicles owned, used or hired C. Workers Compensation and Employers Liability insurance including coverage for, but not limited to: ♦ Industry's statutory liability under the worker's compensation laws of the state(s) in which the work is to be performed. If optional under State law, the insurance must cover all employees anyway. ♦ Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. ♦ All such coverage shall include coverage for the Federal Employers Liability Act and include an alternate employer endorsement naming Railroad as the alternate employer with coverage for the Federal Employers Liability Act. The term Alternate Employer as used herein and above is being used solely as an insurance term of art. By Industry's actions of obtaining insurance coverage as set forth above Industry is in no way intending or evidencing an alternate or dual employment relationship with Railroad. The parties agree: (1) Railroad has no right to direct or control Industry's employees with respect to the physical conduct or the performance of services; (2) Railroad does not supervise, nor does it have the right to supervise, details of Industry's employees' work or the manner in which such work is accomplished; (3) Railroad retains no control over the details of the Industry's employees' work; and (4)Railroad has no right to select, hire, train or fire Industry's employees. D. All risks property insurance covering all of Industry's property including property in the care, custody or control of Industry. Coverage shall include the following: ♦ Issued on a replacement cost basis. ♦ Shall provide that in respect of the interest of Railroad the insurance shall not be invalidated by any action or inaction of Industry or any other person and shall insure the respective interests of Railroad as they appear, regardless of any breach or violation of any warranty, declaration or condition contained in such policies by Industry or any other person. ♦ Include a standard loss payable endorsement naming Railroad as the loss payee as its interests may appear. Other Requirements: Where allowable by law, all policies (applying to coverage listed above) shall contain no exclusion for punitive damages and certificates of insurance shall reflect that no exclusion exists. Industry agrees to waive its right of recovery against Railroad for all claims and suits against Railroad. In addition, its insurers, through policy endorsement, waive their right of subrogation against Railroad for all claims and suits. The certificate of insurance must reflect waiver of subrogation endorsement. Industry further waives its right of recovery, and its insurers also waive their right of subrogation against Railroad for loss of its owned or leased property or property under its care, custody or control. Industry's insurance policies through policy endorsement must include wording which states that the policy shall be primary and non-contributing with respect to any insurance carried by Railroad. The certificate of insurance must reflect that the above wording is included in evidenced policies. All policy(ies) required above (excluding Workers Compensation and if applicable, Railroad Protective) shall include a severability of interest endorsement and shall name Railroad as an additional insured with respect to work performed under this agreement. Severability of interest and naming Railroad as additional insured shall be indicated on the certificate of insurance. Industry is not allowed to self-insure without the prior written consent of Railroad If granted by Railroad, any deductible, self-insured retention or other financial responsibility for claims shall be paid directly by Industry. Any and all Railroad liabilities that would otherwise, in accordance with the provisions of this Agreement, be covered by Industry's insurance shall be paid by Industry as if Industry elected not to include a deductible, self- insured retention or other financial responsibility for claims. Prior to commencing the Work, Industry shall furnish to Railroad an acceptable certificate(s) of insurance including an original signature of the authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. The policy(ies) shall contain a provision that obligates the insurance company(ies) issuing such policy(ies) to notify Railroad in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration. This cancellation provision shall be indicated on the certificate of insurance. In the event of a claim or lawsuit involving Railroad arising out of this agreement, Industry will make available any required policy covering such claim or lawsuit. Any insurance policy shall be written by a reputable insurance company acceptable to Railroad or with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provide. Industry represents that this Agreement has been thoroughly reviewed by Industry's insurance agent(s)/broker(s), who have been instructed by Industry to procure the insurance coverage required by this Agreement. Allocated Loss Expense shall be in addition to all policy limits for coverages referenced above. Not more frequently than once every five years, Railroad may reasonably modify the required insurance coverage to reflect then-current risk management practices in the railroad industry and underwriting practices in the insurance industry. If any portion of the operation is to be subcontracted by Industry, Industry shall require that the subcontractor shall provide and maintain insurance coverage as set forth herein, naming Railroad as an additional insured, and shall require that the subcontractor shall release, defend and indemnify Railroad to the same extent and under the same terms and conditions as Industry is required to release, defend and indemnify Railroad herein. Failure to provide evidence as required by this section shall entitle, but not require, Railroad to terminate this Agreement immediately. Acceptance of a certificate that does not comply with this section shall not operate as a waiver of Industry's obligations hereunder. The fact that insurance (including, without limitation, self-insurance) is obtained by Industry shall not be deemed to release or diminish the liability of Industry including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad shall not be limited by the amount of the required insurance coverage. ENVIRONMENTAL 12. (a) Industry shall strictly comply with all federal, state and local environmental laws and regulations in its use of the Track, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, CERCLA (collectively referred to as the "Environmental Laws"). Industry shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on, under, or within the Minimal Clearances of the Track. Industry shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on, under or within the Minimal Clearances of the Track. (b) Industry shall give Railroad immediate notice to Railroad's Customer Service at 866-889-2826 of any release of hazardous substances on or from the Track, violation of Environmental Laws, or inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Industry's use of the Track. Industry shall use the best efforts to promptly respond to any release on or from the Track. Industry also shall give Railroad immediate notice of all measures undertaken on behalf of Industry to investigate, remediate, respond to or otherwise cure such release or violation. (c) In the event that Railroad has notice from Industry or otherwise of a release or violation of Environmental Laws on the Track which occurred or may occur during the term of this Agreement, Railroad may require Industry, at Industry's sole risk and expense, to take timely measures to investigate, remediate, respond to or otherwise cure such release or violation affecting the Plant, Track or Railroad's right-of-way. (d) Industry shall promptly report to Railroad in writing any conditions or activities upon the Plant or Track which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons or property arising out of such conditions or activities; provided, however, that Industry's reporting to Railroad shall not relieve Industry of any obligation whatsoever imposed on it by this Agreement. Industry shall promptly respond to Railroad's request for information regarding said conditions or activities. DEFAULT 13. (a) If Industry creates or maintains any condition, including without limitation, any environmental condition, on or about the Track, which in Railroad's sole judgment interferes with or endangers the operations of Railroad, or in case of any assignment or transfer of this Agreement by operation of law, Railroad may, at its option, terminate this Agreement by serving fifteen (15) days' notice in writing upon Industry. Notwithstanding the foregoing, if such termination is a result of a condition interfering with or endangering operations of Railroad and Industry commences work to remedy such condition within said fifteen (15) day notice period and is diligently pursuing such remedy, Railroad may suspend all service to Industry while the condition exists but may not terminate the Agreement unless and until Industry ceases in its efforts to remedy the condition prior to completion whereupon the Agreement shall immediately terminate without further notice. (b) Except as otherwise set forth in subparagraph (a) above, if Industry defaults on any of the covenants or agreements of Industry contained in this document, for a period of thirty (30) days following written notice of such default by Railroad, Railroad may, at its option, terminate this Agreement on five (5) days' notice in writing to Industry. Any waiver by Railroad of any default or defaults shall not constitute a waiver of the right to terminate this Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Railroad's ability to enforce any Section of this Agreement. The remedy set forth in this Section 13 shall be in addition to, and not in limitation of, any other remedies that Railroad may have at law or in equity. TERMINATION 14. (a) In addition to all other remedies available at law or in equity, Railroad may, without incurring any liability to Industry, terminate this Agreement and discontinue the maintenance and operation of the Track and remove the Railroad Track, in the event of any of the following contingencies: (i) If Industry fails to utilize rail service from Railroad to or from the Plant for a period of eight (8) consecutive months, Railroad may, at its option, expressed in writing, terminate this Agreement, effective immediately. (ii) If Railroad is required by competent public authority to abandon its line to which the Industry Track is connected, Railroad may, upon written notice to Industry, terminate this Agreement effective immediately. (iii) If Railroad is dispossessed of the right to operate over the Track or its connecting track or any part thereof which effectively prevents service to Industry, Railroad may terminate this Agreement effective immediately by written notice to Industry. (b) In addition to all other remedies available at law or in equity, Industry may, without incurring any liability to Railroad, terminate this Agreement and discontinue the maintenance and operation of the Industry Track and remove the Industry Track, at its option, in the event Railroad ceases to provide service to Industry for a period of eight (8) consecutive months. In the event of a default by Railroad continuing for a period of thirty (30) days following written notice of such default by Industry, Industry may, at its option, terminate this Agreement on five (5) days' notice in writing to Railroad. Any waiver by Industry of any default or defaults shall not constitute a waiver of the right to terminate this Agreement for any subsequent default or defaults, nor shall any such waiver in any way affect Industry's ability to enforce any Section of this Agreement. The remedy set forth in this Subsection 14(b) shall be in addition to, and not in limitation of, any other remedies that Industry may have at law or in equity. (c) Upon the expiration or earlier termination of this Agreement as provided herein, Industry shall, at its sole cost and expense, remove any Facilities or improvements upon, over, or under the Track and restore the Railroad's right-of-way to substantially the state in which it was on the Effective Date of this Agreement. In the event Industry shall fail within thirty (30) days after the date of such termination to make such removal and restoration, the Railroad may, at its option, remove the Facilities or improvements or otherwise restore its right-of-way, and in such event Industry shall, within thirty (30) days after receipt of a bill therefor, reimburse Railroad for any costs incurred. (d) Industry hereby agrees to waive and release all claims, rights, and causes of action that Industry has, may have, or may assert against Railroad because of the discontinuance of operation and removal of the Railroad Track as provided in this Section 14 of this Agreement. JOINT USE BY OTHER RAILROADS 15. This Agreement is also made for the benefit of such other railroads which, either by agreement with Railroad or order of competent public authority have the right to use the Track, all of which railroads shall be deemed "Railroad" under this Agreement. ASSIGNMENT 16. This Agreement will inure to the benefit of and be binding upon the successors and assigns of the parties hereto; provided, however, that Industry may not assign this Agreement without the prior written consent of Railroad, which may be withheld in Railroad's sole discretion. Either party hereto may assign any receivables due them under this Agreement; provided, however, that such assignments will not relieve the assignor of any of its rights or obligations under this Agreement. NOTICES 17. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if(i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. If to Railroad: Wisconsin& Southern Railroad General Counsel 315 W. 3rd Street Pittsburg, KS 66762 If to Industry: Watco Terminal & Port Services General Counsel 315 W. 3rd Street Pittsburg, KS 66762 If to Municipality: City of Oshkosh Attn: Community Development Director 215 Church Ave. Oshkosh, WI 54901 SURVIVAL 18. Neither termination nor expiration will release either party from any liability or obligation under this Agreement, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or expiration, or, the date when the Track, Facilities, and improvements are removed and the right-of-way is restored to its condition as of the Effective Date. RECORDATION 19. It is understood and agreed that this Agreement shall not be placed of public record. APPLICABLE LAW 20. All questions concerning the interpretation or application of provisions of this Agreement shall be decided according to the laws of the State of Wisconsin. SEVERABILITY 21. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this Agreement. INTEGRATION 22. This Agreement is the full and complete agreement between Railroad and Industry with respect to all matters relating to the maintenance and operation of the Track and supersedes all other agreements between the parties hereto relating to the maintenance and operation of the Track. However, nothing herein is intended to terminate any surviving obligation of Industry or Industry's obligation to defend and hold Railroad harmless in any prior written agreement between the parties. MISCELLANEOUS 23. In the event that the Industry consists of two of more parties, all covenants and agreements of Industry herein contained shall be the joint and several covenants and agreements of such parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate the day and year first herein above written. WISCONSIN & SOUTHERN RAILROAD, L.L.C. By: Title: WATCO TRANSLOADING, L.L.C. By: Title: CITY OF OSHKOSH,WI By: Title: h i+p aro :aq 31r0 u o_L tl p u i u •3NaolwnwcjNf AAA rfr'LSM :RNMiAUA72r>J 7 m d N R}^¢ 3 L f Q m J w[1 m= Q r~W II ZW [7 AZ A� 'I _ nix = z °cn � La 7Z7-1r®= tree r s, enrcd d 4 m�Qm z�za a p�I D ❑ �� Zza°°❑mzm iU: 8E8-f r = (71 V213C7f y3 IIF-,4�=r]r7X�af �a��NrArl U❑ a F �_ 6L z g � 4� �u Q �x f A?0. Aa 7,. m,\ ,ID I., 4' �1 7\ 'L 3� m k d 4 -p W 47 kl vJ^� Y 03 eq k 4[]dDb kLI 0. W IL zizzz k a � 4k4- I 4q4®43 4 W Y! fx�val�Q QN31 , rad i 4 6H I-f- f = fM.OV&-L jQ ON j 1NlO FACILITY USE AGREEMENT No. 0449-11-71 THIS AGREEMENT,made this day of , 2017,by and between the City of Oshkosh,Winnebago County,Wisconsin, a municipal corporation, and Watco Transloading, L.L.C. ARTICLE 1.0 - DEFINITIONS a. "Operator" means Wisconsin & Southern Railroad, L.L.C. b. "Municipality" means the City of Oshkosh, Winnebago County, Wisconsin. C. "WisDOT" means the Wisconsin Department of Transportation. d. "Industry" means Watco Transloading, L.L.C. e. "Industry Land" means the corridor of real estate owned by Industry upon which the project facility is located in the City of Oshkosh, Wisconsin, and more fully described in Attachment II. (As described in Attachment II, no Industry Land is included in this project) f. "Improved Property" means the rails, ties,ballast, track material, switches, culverts and loading surface acquired,used or installed with the proceeds received by the Municipality from the TEA-Rail Agreement. g. "Municipality Land" means the corridor of real estate owned by Municipality upon which the project facility is located in the City of Oshkosh, Wisconsin, and more fully described in Attachment II. 1 h. "Person" means an individual, a partnership, an association, and bodies politic or corporate. i. "Project Facility" means the industrial spur constructed under the TEA-Rail Agreement using improved property and providing Industry with access to the Operator's track. j. "RHS" means the Railroads and Harbors Section of WisDOT. k. "Industry Track Agreement" means the agreement by and between the Operator and Municipality or Industry, or both, governing the provision of rail service over, and the maintenance of, the project facility. 1. "TEA-Rail" means the agreement by and between the Municipality and WisDOT, Identification No. 0449-11-71, setting forth the terms of the Municipality's receipt of a Transportation Economic Assistance-Rail grant to construct the project facility. M. "Direct Job(s)" means the number of eligible jobs directly associated with the economic development project and listed on the application, as reviewed and approved by WisDOT under TRANS 510. ARTICLE 2.0 - PROJECT DESCRIPTION The Project Facility constructed by the Municipality on Municipality and/or Industry Land consists of an industrial railroad spur of approximately 2,900 feet of spur trackage from the point of the switch on the Operator's track to the end of the track at Municipality's transload site as shown on Attachment III. This project is constructed on Municipality Land only as described in Attachment II. 2 ARTICLE 3.0 -USE, TERM AND JOB GUARANTEE (a) The Municipality grants to Industry the right to use the Project Facility for the purpose of shipping and receiving materials from and at Municipality's transload site, provided Industry complies with the terms and conditions set forth in this Agreement. Industry's right to use the Project Facility shall be for a term of 25 years,unless terminated earlier pursuant to this Agreement. (b) Municipality shall comply with the criteria established in the Direct Jobs Guarantee attached hereto as Attachment I. ARTICLE 4.0 - PROJECT FACILITY LIQUIDATION In the event the Project Facility is liquidated at any time, the net proceeds received from disposition of the Improved Property included in the Project Facility shall be distributed as follows: 100 percent thereof shall be paid to Municipality, of which 50 percent thereof shall be for reimbursement by Municipality to WisDOT, and 50 percent thereof shall be retained by Municipality. ARTICLE 5.0 - PROJECT FACILITY OPERATION Section 5.1. Written Agreements Industry has entered or shall enter into the following written agreements with appropriate parties to assure its ability to comply with the requirements of this Agreement. These agreements shall be submitted in approvable form to the Municipality by Industry so the Municipality may submit them to RHS for acceptance. If Industry fails to comply with this provision or RHS does not accept said written agreements, this Agreement is automatically terminated. (a) If any part of the Project Facility is located on Industry Land, Industry shall furnish a track easement to the Municipality on Industry Land (as described in Attachment II) 3 granting the Municipality a perpetual right for construction, operation and ownership of the Project Facility on said land. (b) Industry shall provide an Industry Track Agreement by and between Municipality or Industry, or both, and Operator. Said Industry Track Agreement shall be attached hereto as Attachment III and made a part of this Agreement as of the date Attachment III is accepted in writing by RHS. Section 5.2. Maintenance of Project Facility Industry shall, at its expense,perform or arrange for performance of all maintenance and repairs of the Project Facility, the road bed of the Project Facility, drainage ways and any structures necessary for the safe operation of railroad service as determined by Operator or the Federal Railroad Administration, or both. Section 5.3. Project Facili , Use (a) A de facto condition of default for failure to use may be declared by Municipality or WisDOT upon occurrence of any one or more of the following events: (i) Industry renders its loading docks or track side facilities unfit for use for rail service or ceases its operation of Project Facility. (ii) Industry files for protection under bankruptcy laws. (iii) Operator abandons the line haul track and/or industrial lead track to which the Project Facility is connected. (iv) Operator ceases operation of line haul track and/or industrial lead track serving the Project Facility. (v) The Project Facility is rendered unfit for railroad freight service by Municipality, Industry, or Operator. (b) Industry or Municipality shall provide to RHS not later than January 20 of each year a report of the number of loaded rail cars shipped out and the number of loaded railcars received 4 on the Project Facility by Industry. Industry shall arrange for access by RHS or its authorized agent to examine waybill, demurrage, or other appropriate records for purposes of validating reported car counts. Section 5.4. Defective Work. If it is reasonably determined by Industry, Municipality or WisDOT that any material or workmanship is deficient Municipality,without reimbursement, shall promptly require the replacement of materials or correction of workmanship necessary to cure the deficiency. ARTICLE 6.0 - PROJECT PROPERTY SECURITY, LIENS AND SALE Section 6.1. Security for Borrowing (a) Industry shall not itself nor shall it allow Operator to use the value of the Improved Property acquired or used for this project as security or collateral for any loan or other borrowing. (b) Industry shall not use Industry or Municipality Land as security or collateral for any loan or other borrowing which is not recorded in the Office of Register of Deeds of Winnebago County on the date of execution of this Agreement. Section 6.2. Liens Against Improved Property (a) Industry acknowledges that the TEA-Rail Agreement creates a first priority lien in favor of WisDOT on the material purchased in whole or in part with the proceeds of the TEA- Rail Agreement beginning with acceptance of delivery and continuing for the duration of their placement on Municipality Land, and that the Municipality shall cause a legally sufficient notice 5 of this lien to be recorded in the Office of Register of Deeds of Winnebago County and the Wisconsin Department of Financial Institutions, and shall notify RHS when recording is accomplished. Said notice shall be removed from the record only upon written waiver of lien by WisDOT. (b) Industry 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 Improved Property or any interest therein not in existence on the date of execution of this Agreement. Industry shall immediately take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge, encumbrance, security interest, or claim against Improved Property if the same shall arise at any time. Section 6.3. Sale of Improved Property or Indus ,try Land In the event Industry sells the Improved Property or Industry Land, or both, without the written approval of RHS, which approval shall not be unreasonably withheld, Industry shall immediately pay to the Municipality an amount equal to the amount of the Municipalities share of the Project cost and the amount the Municipality is required to repay to WisDOT from the TEA-Rail grant as a result of said sale. ARTICLE 7.0 - DEFAULT AND TERMINATION Section 7.1. Declaration of Default A condition of default exists under this Agreement when either party to this Agreement fails to abide by or perform according to any one or more of its terms and conditions. A declaration of default of this Agreement shall be made in writing and delivered to the alleged defaulting party by certified mail sent to the address shown in Section 10.2. The letter shall identify the action or inaction constituting the default and reference the portion of the Agreement under which the default occurs. The date of default shall be the date of delivery of notice or the 6 date insurance coverage fails to meet requirements or the date of filing for bankruptcy by Industry,whichever first occurs. Section 7.2. Termination of Default In the event of any failure on the part of either party to perform its obligations under the terms of this Agreement, including, but not limited to, transmittal of required payments under this Agreement, the other party shall have the right to give immediate notice of default and, at its option, after first giving ten (10) days written notice thereof by certified mail to the party in default and notwithstanding any waiver by the party giving notice of any prior breach thereof, to terminate this Agreement, and the exercise of such right shall not 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. Section 7.3. Removal of a Condition of Default The Municipality or Industry shall have ten(10) calendar days from written notification of the default to remove or remedy the cause of the default. This remedy period may be waived by the party declared in default. Correction by the defaulting party shall be completed and ready for verification by the other party within the ten (10) day period. Upon written petition by the defaulting party, the other party may extend the period for removal of a default condition. The defaulting party shall be notified of satisfactory correction in writing. Section 7.4. Expenses of Termination The parties shall themselves, and Industry shall require Operator, to mitigate the expenses of termination to the greatest extent possible, and the Municipality shall pay those that do occur if default is caused by Municipality, and Industry shall pay those that do occur if default is caused by Industry. 7 Section 7.5. Vacating the Property Upon determination by the Municipality that remedial action has not removed the default condition caused by Industry, the Municipality shall provide written notice to Industry and Operator for Industry and Operator to vacate the Project Facility within fourteen(14) days of delivery of such notice. Section 7.6. 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 limitations: Acts of God; strikes or other labor troubles or other causes except the unavailability of insurance coverage in full accordance with Section 9.2 of this Agreement or any amendment thereto, beyond the reasonable control of the parties; interruption of service caused by accidents, explosions, fires,vandalism, or malicious mischief. To the extent permitted by WisDOT, the parties will be excused from the performance of their obligations hereunder if the parties' failure to use the Project Facility is due to the economic or business conditions of Industry or the failure of operator to provide freight cars or switching service. ARTICLE 8.0 - REPRESENTATIONS AND WARRANTS The parties hereto represent and warrant that they have the power and authority to enter into this Agreement and to carry out their obligations under this Agreement. ARTICLE 9.0 - LIABILITY AND INSURANCE Section 9.1. Hold Harmless Industry shall save and hold the Municipality and WisDOT, their officers, employees and agents harmless from and against all liability, damage, loss, claims, demands and actions of any 8 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 Industry or Operator, or Industry's or Operator's agents, servants, subcontractors 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, in or about a place where such operation, act or omission is being performed or in the vicinity thereof(1)while Operator or Industry is performing its work, or(2) during the period this Agreement between Industry and Municipality is in effect, or (3)while any of the Operator's or Industry's property, equipment, or personnel, is in or about such place or the vicinity thereof by reason of or as a result of the performance of Operator's or Industry's operations including,without limiting the applicability of the foregoing: all liabilities, damages, losses, claims, demands and actions on account of personal injury, death or property loss to the Municipality or WisDOT, their, officers, employees, agents, subcontractors, or frequenters, or to any other person or legal entity whether based upon, or claimed to be based upon contract, tort, or having its basis in workers' compensation under federal or state statutes or having any other code, or statutory basis, or based upon administrative laws or other provisions, or other liability of the Municipality or WisDOT, Industry or any other persons or entities, and whether or not caused or claimed to have been caused by the negligence, or other breach of duty by the Municipality or WisDOT, their officers, employees, agents, subcontractors, or frequenters, or Industry, its officers, employees, agents, subcontractors or frequenters, or any other person or legal entity. Without limiting the applicability of the foregoing,the liability, damage, loss, claims, demands and actions indemnified against 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. Section 9.2. Insurance (a) Required Coverage - During the term of this Agreement, Industry shall maintain, at its own cost and expense, a Comprehensive General Liability Policy in an amount of not less than $5,000,000.00 single limit coverage, and for matters of liability arising from the existence 9 and use of the Project Facility, shall name the Municipality and WisDOT, their officers, employees, and agents as additional insureds on all Primary and Excess Comprehensive General Liability insurance documents. Industry shall in addition maintain and keep in force worker's compensation and employer's liability insurance, to the extent, if any, that worker's compensation and employer's liability is not covered under the Comprehensive General Liability Policy. (b) Validation of Coverage and Notice of Cancellation -Upon initial inclusion of the Municipality and WisDOT as additional insureds and on each renewal of insurance coverage required by Section 92(a), the insurance carrier shall provide to the Municipality and WisDOT written documentation from the insurance carrier or its authorized representative of the terms and effective date of coverage. In the event of insurance coverage suspension or insurance cancellation by any insurance carrier,both the insurance carrier and Industry shall provide the Municipality and WisDOT with notification of such suspension or cancellation of insurance coverage required by Section 9.2(a)no less than 10 days prior to such suspension or cancellation. (c) Reporting of Incidents and Claims - During the term of this Agreement, any damage or injury to person or property occurring on the Project Facility or from the operation of the equipment of Operator or Industry or by the employees of Operator or Industry (herein referred to as an "incident") shall be reported to the Municipality and WisDOT at such time as said incident is reported to any regulatory agencies or Industry's insurance carrier. Industry and Operator shall forthwith furnish the Municipality and WisDOT with copies of any notice of injury or claim of damage made to Industry or Operator. Thereafter, Industry and Operator shall provide the Municipality and WisDOT access to copies of any further instruments, reports and records involving such matter and shall report, at least quarterly, to the Municipality and WisDOT as to further happenings regarding the incident including the final disposition of the matter. Notice of court dates shall be given to the Municipality and WisDOT upon receipt. 10 ARTICLE 10.0 - GENERAL CONDITIONS Section 10.1. 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. Interpretation may be had in any court of record of the County of Winnebago. Section 10.2. Notice a. Any notice required or permitted under this Agreement shall be personally served 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 Clerk City of Oshkosh 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 Senior Vice President Marketing & Customer Development Watco Transloading, L.L.C. 315 West 3rd Street Pittsburg, Kansas 66762 b. Any notice provided under Section 102(a) shall be provided to the following by first class mail: Chief, Railroads & Harbors Section WisDOT P.O. Box 7914 Room 701 Madison, WI 53707-7914 General Manager Wisconsin& Southern Railroad, LLC 1890 E. Johnson Street Madison, WI 53704 11 Section 10.3. Transfer of Rights Under This Agreement This Agreement shall be binding upon and inure solely to the benefit of the parties hereto. Industry's or Operator's rights hereunder shall not be assignable whether by way of assignment, sublease, license or otherwise, directly or indirectly without the Municipality's prior written consent. Section 10.4. 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 thereby, and each term, covenant, condition and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. Section 10.5. Amendment, Consents and Approvals (a) No term or provision of this Agreement, or any of its attachments, may be changed, waived, discharged or terminated, except by an instrument in writing signed by both parties to this Agreement. (b) Consents and approvals required under this Agreement and interpretation of this Agreement may be made or granted by letter from one party to the other party hereunder or by an exchange of letters between the parties. Section 10.6. Officials (a) Officials authorized to execute amendments or modifications to this Agreement on behalf of the Municipality are the City Manager and City Clerk. 12 (b) Officials authorized to execute amendments or modifications to this Agreement on behalf of Industry are its Senior Vice President Marketing& Customer Development, Chairman or President. Section 10.7. Handicapped No otherwise qualified handicapped individual in the United States, as defined in Section 706(7) of Title 29 USC, and subchapter II of Chapter 111, Wis. Stats., shall solely by reason of the individual's handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving benefits under this Agreement. Section 10.8. Environmental Protection (a) Industry agrees to conduct work under this Agreement in compliance with all applicable Wisconsin Environmental requirements. Industry will complete a Wisconsin Department of Transportation Programmatic Environmental Report and provide WisDOT with copies of approval letters from the Wisconsin Department of Natural Resources, the Wisconsin State Historical Society, or other state or federal agency who may have reviewed this project for environmental reasons, prior to execution of this agreement by WisDOT. This report and letters shall become part of this agreement. (b) Facilities or equipment shall not be acquired, constructed, or improved as a part of the Project Facility unless such facilities or equipment are designed and equipped to limit water and air pollution in accordance with all applicable state and federal standards, statutes, and regulations. (c) Operations shall be conducted in compliance with all the requirements of Section 114 of the Clean Air Act, 42 USC sec. 7414, and Section 308 of the Federal Water Pollution Control Act, 33 USC 1318, and all applicable regulations issued under said Acts. (d) Industry certifies that no facilities which will be utilized or improved as part of the Project Facility are listed on the Environmental Protection Agency ("EPA") List of Violating Facilities ("List"). 13 (e) Industry shall notify the Municipality as soon as it, the Operator or any subcontractor receives any communication from the EPA indicating that any facility which will be utilized or improved as part of the Project Facility is under consideration to be listed on the EPA list. Section 10.9. Prohibited Interests (a) Conflicts of Interest: (1) Neither Municipality, Industry nor Operator, nor any of their subcontractors shall enter into any contract, subcontract, or agreement in connection with the project or any property included or planned to be included in the Project Facility in which any director, officer or employee of Municipality during his or her tenure or for one (1)year thereafter has any interest, direct or indirect, except as permitted under Sec. 946.13(2), Wis. Stats. (1995-1996). (2) No director, officer, or employee of Municipality, during his or her tenure or for one (1) year thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof except as permitted under Sec. 946.13(2), Wis. Stats. (1995-1996). (3) No subcontractor of Municipality or Industry may enter into any contract, subcontract or other arrangements which may affect the activities for which assistance is available to the Municipality under the TEA-Rail Agreement if any director, officer, any key salaried employee or official, or any member of the immediate family of one of the foregoing has any material interest in said Agreement. (4) The provisions of this subsection shall not be applicable to any agreement between Municipality or Industry and its fiscal depositories or to any agreement for utility services for which rates are fixed by government regulation. Section 10.10. Non-Discrimination (a) In connection with the performance of work under this Agreement or the TEA-Rail Agreement, Industry agrees not to discriminate against any employee or applicant for employment because of age, race,religion, color,handicap, sex, physical condition, 14 developmental disability as defined in Sec. 51.01(5), Wis. Stats., sexual orientation or national origin. This provision 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. Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities. Industry agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of the nondiscrimination clause. (b) Municipality shall comply with the following laws, policies,regulations and pertinent directions as may be applicable and will require their subcontractors through contractual agreement to similarly comply: i. Title VI of the Civil Rights Act of 1964, 78 Stats. 252, 42 U.S.C. 2000d et seq. ii. Subchapter 11 of Chapter 111, Wis. Stats. iii. Section 16.765,Wis. Stats. (c) Municipality in the procurement process, shall not discriminate against minority owned or operated firms qualified to bid and perform on contracts, subcontracts, or materials procurement connected with the work performed under this Agreement or the TEA-Rail Agreement. Section 10.11. Assurance Municipality shall require its construction contractor to acquire a performance and payment bond or an irrevocable letter of credit in the full amount of the grant to the Municipality under the TEA-Rail Agreement in favor of Municipality for the duration of the construction work set forth under said Agreement. 15 Section 10.12. Specific Performance The Municipality shall have the right, as provided by law, to require specific performance by Industry of Industry's obligations under this Agreement. This right may be asserted at any time after thirty (30) days of the Municipality notifying Industry of its obligation to perform. Section 10.13. Entire Agreement This Agreement and the attachments hereto contain the entire agreement of the parties and supersede any and all prior agreements or oral understandings between the parties. 16 SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers on the date and year designated in this Agreement. CITY OF OSHKOSH WINNEBAGO COUNTY, WISCONSIN WITNESS: Mark Rohloff, City Manager WITNESS: Pamela R. Ubrig, City Clerk WATCO TRANSLOADING, L.L.C. WITNESS: Vice President, Marketing and Customer Development WITNESS: WITNESS: 17 AGREEMENT NO. 0449-11-71 ATTACHMENT I JOBS GUARANTEE 18 AGREEMENT NO. 0449-11-71 ATTACHMENT II EASEMENT/PROPERTY DESCRIPTION 19 AGREEMENT NO. 0449-11-71 ATTACHMENT III INDUSTRIAL TRACK AGREEMENT 20 AGREEMENT NO. 0449-11-71 ATTACHMENT IV LIEN 21 WATCO TERMINAL & PORT SERVICES TRACK LEASE AGREEMENT THIS LEASE dated as of this day of 2016 between the CITY OF OSHKOSH, 215 Church Avenue, Oshkosh, Wisconsin 54903 ("Lessor"), and WATCO TRANSLOADING, LLC also referred to herein as, WATCO TERMINAL & PORT SERVICES, 315 West 3rd Street, Pittsburg, Kansas 66762 ("Lessee'). For and in consideration of the mutual benefits and obligations set forth in this Lease, the Parties agree to be bound as follows: 1. LEASED PROPERTY. Lessor hereby leases to Lessee the track ("Track") in its entirety, and the adjacent property ("Property") (sometimes collectively referred to as the "Leased Premises"). The Track includes Track B and Track C, located within the Southwest Industrial Park, owned by the City. Track B and Track C consists of approximately 3,000 track feet in length, as more particularly described in Exhibit A of this Agreement. The Leased Premises includes the Tracks, the driveway to the Leased Property, and the service road and turnarounds along the Tracks, as more particularly described in Exhibit A of this Agreement. 2. TERM. The term of this Lease ("Lease Term") shall commence at ------12:01 a.m. on ("Commencement Date') and shall last for a period of twenty five years ending at _______11:59 a.m. on the ("Termination Date"). Thereafter the Lease will automatically renew annually unless earlier terminated by either party with sixty (60) days written notice. 3. RENT. 3.1 Rent for the Leased Premises ("Rent"), shall be $1.00 per year for the duration of the lease payable in advance of the Commencement Date. Lessee shall send all payments to Lessor at the address specified by Lessor. 4. USE. 4.1 Lessee shall use the Leased Premises solely for a direct bulk transload facility which includes a direct transfer between railcar and truck or a conveyer line and covered storage, and for no other purpose ("Use"), without the prior written consent of Lessor. 4.2 Any land use activities and/or improvements to the site will need to comply with the City of Oshkosh Municipal Code and the Covenants and Restrictions regarding the City of Oshkosh Industrial Parks as well as applicable federal and state laws. Approval of plans will occur via the City of Oshkosh Site Plan Review process and paragraph IX of the Covenants and Restrictions regarding the City of Oshkosh Industrial Parks document. 4.3 Neither Party shall allow the Leased Premises to be used by any other person or firm without the prior written consent of the other Party, unless the use of the premises is for a direct customer of the Lessee Customer use of the facility will be under the direct supervision of Watco Terminal&Port Services. 4.4 Lessee shall, at its sole cost and expense, promptly comply with all present and future laws, statutes, regulations, ordinances, orders, covenants, restrictions, or decisions of any governmental authority or court of competent jurisdiction affecting the Use and condition of the Leased Premises and any equipment placed or used thereon and Lessee's operations and activities on the Leased Premises ("Legal Requirements"). Lessee shall obtain all permits required by any federal, state, municipal or other governmental entity necessary for Lessee's Use of the Leased Premises as outlined in this Section. 4.5 Lessee shall not permit any obstruction over the Tracks less than the statutory limit (as presently existing or as amended from time to time) or 23'0" above top of rail, whichever is greater, or alongside thereof less than the statutory limit or 8'6" from center of track, whichever is greater, with the necessary additional clearances on curves, without the prior written approval of Lessor and any public authority having jurisdiction. 5. TAXES AND ASSESSMENTS. Lessee is responsible for all taxes and assessments, such as Personal Property Tax and Real Property Tax, (as presently charged or may be charged in the future) associated with its Use of the Leased Premises. Lessee shall keep the Leased Premises free and clear of any liens or judgments for unpaid taxes and assessments for which Lessee is responsible. 6. UTILITIES. Lessee, at its sole cost and expense (including fees for permits and similar documents), shall obtain all utility services required or desired by Lessee, including the installation of meters and submeters if none exist. Lessee shall be responsible for all charges for utilities consumed by, and supplied to, Lessee by the provider thereof. 7. CONDITION OF PREMISES AND MAINTENANCE. 7.1 Prior to the Commencement Date, Lessor conducted a Phase I Environmental Site Assessment and Phase II Environmental Site Assessment pursuant to the current American Standard of Testing and Materials ("ASTM") Standards E1527 and E1903, respectively (the "Environmental Reports") of the Leased Premises. Lessor has provided copies of the Environmental Reports to Lessee, and Lessee acknowledges receipt of same. To the extent required by applicable law, Lessor shall notify the appropriate government agency (e.g. the Wisconsin Department of Natural Resources) of conditions identified in the Environmental Report and shall obtain a determination that no further action is required for such condition(s) pursuant to applicable law. Lessee has fully inspected and accepts the Leased Premises in "as is' condition. Lessor makes no representations as to the condition, including any conditions identified in the Environmental Reports, utility or fitness of the Premises for any use. Lessee shall, at its expense, perform or arrange for performance of all maintenance and repairs of the Leased Premises, the road bed of the Leased Premises, drainage ways and any structures necessary for the safe operation of railroad service as determined by Operator or the Federal Railroad Administration, or both. Lessee shall perform all general maintenance including but not limited to grass cutting, snow removal, access road maintenance and o t h e r repairs necessary to keep the Leased Premises and Tracks in good order and in safe condition at Lessee's expense in the boundary area shown in Exhibit A. Any additional repairs or maintenance necessary, as a result of the Lessor's acts, negligence, regulatory non-compliance or contractual breach, shall be performed by Lessor at the sole expense of the Lessor. 7.2 All maintenance of the Tracks shall be to a minimum of Federal Railroad Administration Class II track standards. 8. RIGHTS RESERVED BY THE CITY The City reserves the right to access the Leased Premises to inspect or maintain the public regional stormwater facility with a forty-eight hour notice. In an event an emergency the city may access the site without notice. 9. LIABILITY Industry shall save and hold the Municipality and WisDOT, their officers, employees and agents 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 Industry or Operator, or Industry's or Operator's agents, servants, subcontractors 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, in or about a place where such operation, act or omission is being performed or in the vicinity thereof (1) while Operator or Industry is performing its work, or (2) during the period this Agreement between Industry and Municipality is in effect, or (3) while any of the Operator's or Industry's property, equipment, or personnel, is in or about such place or the vicinity thereof by reason of or as a result of the performance of Operator's or Industry's operations including, without limiting the applicability of the foregoing: all liabilities, damages, losses, claims, demands and actions on account of personal injury, death or property loss to the Municipality or WisDOT, their, officers, employees, agents, subcontractors, or frequenters, or to any other person or legal entity whether based upon, or claimed to be based upon contract, tort, or having its basis in workers' compensation under federal or state statutes or having any other code, or statutory basis, or based upon administrative laws or other provisions, or other liability of the Municipality or WisDOT, Industry or any other persons or entities, and whether or not caused or claimed to have been caused by the negligence, or other breach of duty by the Municipality or WisDOT, their officers, employees, agents, subcontractors, or frequenters, or Industry, its officers, employees, agents, subcontractors or frequenters, or any other person or legal entity. Without limiting the applicability of the foregoing, the liability, damage, loss, claims, demands and actions indemnified against 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. 10. ENVIRONMENTAL COMPLIANCE. 10.1 Responsibility for environmental claims (as defined in section 9) as between the parties shall be borne as follows: (a) Lessor shall be responsible for environmental claims arising from: (a) environmental conditions existing on the leased premises prior to the date of this lease, and identified in the environmental reports or (b) use of the leased premises by lessor or its licensees or contractors from and after the date of this lease, unless such environmental claims arise from lessee's negligence in which event lessee shall be liable for its failure, or that of its licensees or contractors, to comply with its obligations under this lease when such failure is a contributing cause to such environmental claims. (b) Lessee shall be responsible for environmental claims arising from: (a) environmental conditions on the leased premises from and after the date of this lease, any post-commencement date environmental conditions shall be presumably attributed to lessee if such conditions were not identified in the environmental reports or (b) the use of or presence upon the leased premises by lessee, or its contractors, invitees or any unauthorized third party of hazardous materials or substances; or (c) its failure, or that of its licensees or contractors, to comply with its obligations under this lease when such failure is a contributing cause to such environmental claims. (c) The parties hereto shall bear in proportionate shares responsibility for environmental claims arising from the joint responsibility of lessor and lessee 10.2 Except as otherwise provided the party which is responsible shall release the other party from all responsibility for such environmental claims and shall defend, indemnify, protect and save harmless the other party from and against all such environmental claims. 10.3 The term "environmental claims" means any cleanup, response, removal or remediation required by a governmental entity, related to any environmental conditions affecting the air, soil, surface waters, ground waters, streams, sediments and similar environmental conditions caused by, resulting from, arising out of, or occurring in connection with this lease. 10.4 At the conclusion of the lease term, or upon termination of this lease pursuant to section 12 hereof, lessee shall be responsible for the cost of a phase I and phase ii environmental site assessment(s) of the leased premises consistent with then current applicable ASTM standards, to be commissioned by and for lessor concurrent with lessee's exit from the leased premises. Responsibility for any environmental conditions identified by such lease term-end environmental assessments shall be controlled by the terms of this section 9. (a) Industry agrees to conduct work under this Agreement in compliance with all applicable Wisconsin Environmental requirements. Industry will complete a Wisconsin Department of Transportation Programmatic Environmental Report and provide WisDOT with copies of approval letters from the Wisconsin Department of Natural Resources, the Wisconsin State Historical Society, or other state or federal agency who may have reviewed this project for environmental reasons, prior to execution of this agreement by WisDOT. This report and letters shall become part of this agreement. (b) Facilities or equipment shall not be acquired, constructed, or improved as a part of the Project Facility unless such facilities or equipment are designed and equipped to limit water and air pollution in accordance with all applicable state and federal standards, statutes, and regulations. (c) Operations shall be conducted in compliance with all the requirements of Section 114 of the Clean Air Act, 42 USC sec. 7414, and Section 308 of the Federal Water Pollution Control Act, 33 USC 1318, and all applicable regulations issued under said Acts. (d) Industry certifies that no facilities which will be utilized or improved as part of the Project Facility are listed on the Environmental Protection Agency ("EPA") List of Violating Facilities ("List"). (e) Industry shall notify the Municipality as soon as it, the Operator or any subcontractor receives any communication from the EPA indicating that any facility which will be utilized or improved as part of the Project Facility is under consideration to be listed on the EPA list. 11. INSURANCE. 11.1 Lessee shall maintain continuously in effect a policy of comprehensive general liability insurance, including contractual liability. Such insurance shall be in limits of not less than $5,000,000.00 combined single limit, bodily injury and property damage liability each occurrence. Lessee shall furnish to Lessor certificates evidencing such insurance in companies and form acceptable to Lessor. Insurance is to be placed with insurers who have an A.M. Best rating of no less than A- and a Financial Size Category of no less than Class VI, and who are authorized as an admitted insurance company in the state of Wisconsin. The following must be named as additional insureds on Watco's Commercial General Liability Certificate including the City of Oshkosh and its officers, council members, agents, employees and authorized volunteers. The additional insured coverage must be ISO form CG 2010 07 04 or its equivalent. 12. CONDEMNATION Subject to Lessee's right to recover from Lessor an amount equal to the depreciated value of the improvements that were placed on the Leased Premises by Lessee with Lessor's consent, if all or any part of the Leased Premises shall be acquired or taken under eminent domain proceedings, or transferred to a public authority in lieu of such proceedings, Lessor may terminate this Lease as of the date when possession is taken. Subject to the above, all damages awarded for such taking shall belong to and be the property of Lessor and Lessee shall have no claim against Lessor by reason of such taking or termination and shall not have any claim or right to any portion of the amount that may be awarded or paid to Lessor as a result of any such taking. In addition to the above, Lessee may make claims against the condemning authority for moving expenses, loss of fixtures, or other matters which do not affect the award otherwise payable to Lessor so long as such claim does not reduce the award otherwise payable to Lessor. TERMINATION. 12.1 This Agreement is subject to termination before the expiration of the original term or any extension term under the following circumstances: (a) By mutual agreement of the parties, at any time. (b) At the sole discretion of the City, if the Lessee materially fails to perform any of the Lessee's obligations under the Agreement and such failure is not cured within a reasonable time after the Lessee's receipt of a written notice from the City. (c) At the sole discretion of the Lessee, if the City materially fails to perform any of the City's obligations under the Agreement and such failure is not cured within a reasonable time after receipt of a written notice from the Lessee. (d) (e)In the event the Agreement is terminated, with or without cause, the Lessee and the City shall each be obligated to take such actions as may be reasonably necessary to ensure a smooth transition to the new Lessee. 13. NO WAIVER. The waiver by any party of any breach by the other party of any term, covenant, obligation or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or a waiver of any other term, covenant, obligation or condition herein contained. 14. NOTICES. Every notice, approval, consent, or other communication desired or required under this Lease shall be effective only if the same shall be in writing and sent postage prepaid by United States registered or certified mail (or a similar mail service available at the time), directed to the other party at its address set forth below, or such other address as either party may designate by notice given from time to time in accordance with this Section. Lessor: City of Oshkosh Attn: Director of Community Development 215 Church Avenue Oshkosh,WI.54903 Lessee: Watco Transloading, LLC Attn: Senior Vice President Marketing & Sales 315 W. 3rd Street Pittsburg, KS. 66762 15. BINDING ON SUCCESSORS. The covenants and agreements herein contained shall inure to the benefit of and be binding upon the successors, heirs, personal representatives, and assigns of the parties hereto, subject, however,to the provisions of Section 10 of this Lease. 16. ENTIRE AGREEMENT. The entire agreement between Lessor and Lessee is set forth in this Lease and there are no understandings, agreements, or representations of any kind between the parties, verbal or otherwise, other than as set forth in this Lease. No change or modification of any of the covenants, terms or provisions hereof shall be valid unless in writing and signed by the parties hereto. 17. JOINT AND SEVERAL LIABILITIES. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Lessee, the liability of each individual, corporation, partnership or other business association to perform all covenants, obligations or conditions hereunder shall be deemed to be joint and several, and all notices, payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations shall be deemed to have been given or made by, with or to all of them. In like manner, if Lessee shall be a partnership or other business association, the members which are, by virtue of state or federal law, subject to personal liability, the liability of each such member shall be joint and several. 18. SEVERABILITY. If any term, covenant, obligation or condition of this Lease or the application thereof to any person or circumstance shall be held invalid or unenforceable to any extent by a final judgment or award which shall not be subject to change by appeal, then the remainder of this Lease or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant and condition of this Lease shall be valid and be enforced to the fullest extent permitted by law. Furthermore, each covenant, agreement, obligation and other provision of this Lease is and shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, and not dependent on any other provision of this Lease unless expressly so provided. 19. THIRD PARTY BENEFICIARY. Nothing contained in this Lease shall be construed as to confer upon any other party the rights of a third party beneficiary. 20. APPLICABLE LAW. This Lease and the rights and obligations of the parties hereunder shall be construed in accordance with the laws of the State of Wisconsin. 21. SURVIVAL. Any covenant, obligation or liability which arose, may have arisen or was incurred by either party hereto prior to the termination of this Lease shall survive the termination of this Lease. 22. TERMINOLOGY. As used in this Lease, the terms "Lessor," "Lessee" and "party" shall include the subsidiaries, affiliates, directors, officers, agents and employees of Lessor and Lessee. 23. EXHIBITS. The provisions typed on this page, and/or the following pages, and any exhibit or addendum to this Lease shall be deemed a part hereof. 24. FORCE MAIEURE. Subject to the terms and conditions of this Lease and specifically excluding the obligation to pay Rent as provided for herein, if an event of force majeure has occurred, the non-performing party shall be excused from further performance or observance of its obligations under this Lease which are so affected for as long as such circumstances prevail and such party continues to use its reasonable efforts to recommence performance or observance as soon as possible and to whatever extent possible without delay. The non-performing party shall immediately notify the party to whom performance is due and describe at a reasonable level of detail the circumstances causing such Event of Default or delay. IN WITNESS WHEREOF, the parties have executed this Lease as of the date first set forth above. WITNESS: (LESSOR) CITY OF OSHKOSH BY: DATE WITNESS: (LESSEE) WATCO TERMINAL & PORT SERVICES BY: DATE DEVELOPMENT AGREEMENT WHEREAS, the City of Oshkosh desires to construct a publicly-owned transload facility ("the Project") located in the city-owned Southwest Industrial Park on Global Parkway and Watco Transloading, LLC will operate and maintain the transload facility. The Project encompasses the parcel identification numbers 91334140000 and 9133403000, located in the City of Oshkosh ("the Property") as shown on the attached Exhibit "A" to this Agreement; and WHEREAS, Watco Companies LLC's Terminal and Port Services Division has a lease agreement with the City to operate and maintain the transload facility on the City's behalf; and WHEREAS; Watco Companies LLC intends to purchase land adjacent to the transload facility and railroad to construct private buildings to support the transload facility's operations; and WHEREAS, the City prepared and submitted an application for a Wisconsin Department of Transportation Transportation Economic Assistance Grant (the 'WisDOT TEA Grant") to assist with certain of the costs associated with the development of the Project. NOW, THEREFORE, the City of Oshkosh, hereinafter referred to as the "City", and Watco Companies LLC, hereinafter referred to as "Watco" agree as follows: 1. The City shall submit a WisDOT TEA Grant to assist with the development of the Property and Project. The application shall be for the purposes identified in and substantially in the same form as the attached Exhibit B to this Agreement. 2. The City shall be responsible to complete all necessary requirements in relation to this Agreement and the WisDOT TEA grant. 3. The City shall share responsibility with Watco Companies LLC for obtaining all required permits and approvals for all work to be performed on the Property in relation to this Agreement and the WisDOT TEA grant, including but not limited to permits and approvals from other state and federal agencies. 4. Watco and the City shall share responsibility for the Match Investment identified in the WisDOT TEA application and directly pay for all project costs including but not limited to any permit or approval costs and fees, and any contractors' fees and consultants' fees, relating to the performance of responsibilities under the WisDOT TEA grant. The City shall pay $200,000 cash towards the Project with additional in-kind services and Watco shall pay the remainder of the Match Investment with cash and in-kind services towards the Project as shown in Exhibit C. 5. The City shall approve all costs associated with the Project to ensure all WisDOT TEA funds are used properly under the terms of the grant as outlined in Exhibit B. 6. As recipient of the WisDOT TEA Grant, the City shall bid and award all contracts associated with the construction of the Project as shown in Exhibit B. 7. Watco shall have the option to purchase the remaining property of Lot 1 after the transload facility is developed and the parcel shown as Lot 2, for $35,000 per acre as shown on Exhibit D. This option will commence once the Development Agreement is executed and will 1 expire after three years. If an extension is needed for the option, Watco must submit a request in writing to the city. 8. Watco may use a $40,000 credit the City has awarded to Watco for engineering services provided to the city in 2016 towards the land purchase. The credit will commence once the Development Agreement is executed and will expire after three years. If an extension is needed to use the credit, Watco must submit a request in writing to the city. 9. Watco and the City shall comply with the agreed upon responsibilities and scope of work listed in the design services agreement dated July 21, 2016. 10. Watco shall comply with the requirements listed in the Transportation Economic Assistance Agreement between WisDOT and the City. 11. The City and Watco will establish a method to pay the construction bills and be reimbursed by the TEA Grant and City required funds. Watco will provide payment for invoices as they develop and will send a pass-through invoice to the City for payment. The City of Oshkosh will be required to provide payment within 60 days of submittal. Any invoice not paid within thirty (30) days after submittal will bear interest at the annual rate of twelve percent (12%) prorated for the amount of days in excess of thirty that the amount remains unpaid. 12. Watco shall fully and completely cooperate with the City, the City's attorneys, the City's Auditors or other representative of the City (collectively, the "City") in connection with any internal or governmental Audit, with respect to matters relating to this Agreement. Such cooperation may include, but shall not be limited to, responding to requests for documents and/or other records, and making Contractor's employees available to the City (or their respective attorneys or auditors) upon reasonable notice for: (i) interviews, factual investigations, and providing declarations or affidavits that provide truthful information in connection with any Audit; (ii) volunteering to the City all pertinent information related to any Litigation or Audit; and (iii) providing information and legal representations to auditors in a form and within a timeframe requested. 13. This agreement between Watco and the City shall terminate once the project is completed and upon completion of the grant requirements except for items 5, 7, 8, 10, 12, and 14 which shall remain active. 14. Subject to any limitations contained in Sec 893.80 and any similar statute, of the Wisconsin Statutes, the City agrees to hold Watco Companies LLC, its officers, officials, employees, and agents harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts of omission of any City's officers, employees, or agents while acting within the scope of their employment. Watco Companies LLC agrees to hold the City, its officers, officials, employees, and agents harmless from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to person or property arising out of the terms of this Agreement where such liability is founded upon or grows out of the acts of omission of any Watco Companies LLC's officers, employees, or agents while acting within the scope of their employment. 2 Nothing in this Agreement is intended as a waiver of the City's right or opportunity to rely upon the governmental limitations and immunities contained within Wisconsin law. Municipal immunities and limitations include, but are not limited to, Sections 345.05, 893.80, and 893.83, Wisconsin Statutes. Such damage limits, caps and immunities are intended to be preserved and are incorporated into this agreement and shall govern all disputes, contractual or otherwise, as they apply to the parties and their agents, officers, and employees. The intention of this paragraph is that each party shall be responsible for its own actions and inactions related to this Agreement. Notwithstanding any other provision of this Agreement, it is further agreed that to the fullest extent permitted by law Watco Companies LLC shall indemnify and hold harmless the City, its employees, agents, contractors and consultants from and against all claims, damages, losses and expenses, direct and indirect, or consequential damages, including but not limited to attorneys' fees and all Court, arbitration or other dispute resolution costs, arising out of, resulting from, or related to the presence and/or involvement of hazardous substances or constituents, including hazardous waste, at or contiguous to the project site or contained in samples collected by or received by the City or its contractors and/or consultants from the site. This indemnification extends to claims against the City or any of its employees, agents, contractors or consultants which arise out of, are related to, or are based upon, the disposal, discharge, escape, release, spillage or saturation of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, gases or any other material, irritant, contaminant or pollution in or into the atmosphere, or on, onto, upon, in or into the surface or subsurface of soil, water or watercourses, objects, or any tangible or intangible matter, whether such event or circumstance is sudden or not. Nothing in this paragraph is intended to indemnify, or shall be construed as indemnifying the City, its employees, agents, contractors or consultants with respect to claims, losses, expenses or damages to the extent caused by the City or its employees', agents', contractors' or consultants' own negligent acts or omissions. 15. This Agreement shall be construed under the laws of the State of Wisconsin. 16. This Agreement, and all other documents or instruments that may be required by this Agreement, may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute the same instrument. 3 IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, and Watco Transloading, LLC have respectively caused this Agreement to be duly executed on this day of November, 2015. CITY OF OSHKOSH Watco Companies LLC By: By: Mark Rohloff, City Manager Derek Penner, SVP Strategy& Customer Integration And: Pamela R. Ubrig, City Clerk And: Trena Larson, Finance Director Approved as to form: Lynn Lorenson, City Attorney STATE OF WISCONSIN ) ) ss. WINNEBAGO COUNTY ) Personally came before me this day of November, 2015, the above named Derek Penner, registered agent of Watco Companies LLC to me known to be the persons who executed the foregoing instrument and acknowledged same as and for said company, by its authority. Notary Public, Winnebago County, WI My Commission Expires: STATE OF WISCONSIN) ) ss. WINNEBAGO COUNTY ) Personally came before me this day of November, 2015, the above named Mark Rohloff, City Manager, Pamela R. Ubrig, City Clerk, and Trena Larson, Finance Director, of the City of Oshkosh, to me known to be the persons who executed the foregoing instrument and acknowledged same as and for said Corporation, by its authority. Notary Public, Winnebago County, WI My Commission Expires: 4