HomeMy WebLinkAboutWis. & Southern Railroad, LLC. & Oshkosh/Industry Track WISCONSIN AND SOUTHERN RAILROAD L.L.C.
INDUSTRY TRACK AGREEMENT
THIS INDUSTRY TRACK AGREEMENT, made as of this _J_P_ day, of t 1 , 201�, (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://contractororientation.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
r
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
j 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,
i ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL
OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR
DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY
ARISING OUT OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN
F
! PART):
(i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
F
(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 [110% 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.
j No other endorsements limiting coverage may be included on the policy with regard to the work being
i
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
I
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.
I
I ASSIGNMENT
I
I
i
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 pat-ties 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: V7 ee! e'
z —/ ,'61"
WATCO TRANSLOADING,L.L.C.
By:
Title:
CITY OF OSHKOSH,WI
By:
Title:
By:
Title:
By:
Title: 2a t4' (ft, ww
's th r�ol r
tl ho
mriutwu��.n nuxn ,u.vel +IH Wousi»v*wxw :.d ikivar IsrJ - �u � cdi� Fgg' 0 4
:Nf.11.1 bfVCff).ilNl AJlil dJllb7 :d?NfJIFJlA:W y ��h�1�IG �d 2� ',..
r r
4 4
fi �rJ7
„ , .,,;,r rrrr;,,, //„r �;. ';, �%r�i',;,,oy2 i�%/%i��/�/�i///f//��/��'f%%r%i%✓i,�r�„�/O//r//„rU„, %/ ' r' �;r,G /�� ':.
r//,rc�:or,r,��i„ iii/%�%i%�;/r%�,��+y!/ / r /,,,.... //, „e/ �����r/ ��1�J/ 1 ;���/,a,'r//.;/ : „� ,r y,r'�✓
are+d ("Nb-V30J
”"il” �/%
I
�%
II '.I III
r
l4 k�l!II
a
14
41 in
to
toAL
i igr;
; .
/1G
IW
j
URI I
+001 Pla"I Mal QN311,111
O, f,�'I�SC.�bC s(Jf2YM`N�',,.dG�tiYw" rLJi.tNliS,e�I