HomeMy WebLinkAboutSouthern Railroad/ Facility Use Agreement !ZqZ q
FACILITY USE AGREEMENT
No. 0449-11-71
THIS AGREEMENT, made this day of 4 , 2017, by and between
the City of Oshkosh Winnebago County, Wisconsin, a murici al 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.
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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 11.
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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 L
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 Ajzreements
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
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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
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terminated.
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(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)
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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.
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(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.
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(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
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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.
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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
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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 Industry 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
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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.
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I Section 7.4. Expenses of Termination
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of termination to the greatest extent possible, and the Municipality shall pay those that do occur
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if default is caused by Municipality, and Industry shall pay those that do occur if default is
caused by Industry.
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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.
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ARTICLE 8.0 -REPRESENTATIONS AND WARRANTS
6 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.
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ARTICLE 9.0 -LIABILITY AND INSURANCE
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Section 9.1. Hold Harmless
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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
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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
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j Section 9.2. Insurance
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(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
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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 9.2(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.
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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
j Oshkosh, WI 54903-1130
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Senior Vice President Marketing& Customer Development
Watco Transloading, L.L.C.
315 West 3 Street
i Pittsburg, Kansas 66762
E b. Any notice provided under Section 10.2(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
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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.
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Section 10.6. Officials
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(a) Officials authorized to execute amendments or modifications to this Agreement on
behalf of the Municipality are the City Manager and City Clerk.
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(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.
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(b) Facilities or equipment shall not be acquired, constructed, or improved as a part of
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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
r Project Facility are listed on the Environmental Protection Agency ("EPA") List of Violating
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Facilities ("List").
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(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
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(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,
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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 II 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
j Agreement.
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Section 10.11. Assurance
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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.
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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.
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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• AL",
Pamela R. Ubrig, City Clerk
APPROV
1, VVATCO TRANSLOADING, L.L.C.
`,.w.. CI7Y AT1 "PiN�
q$HK4SH,bYI6CONS1N
WITNESS:
Vice President g
Marketin and Customer
Development
WITNESS:
WITNESS:
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AGREEMENT NO. 0449-11-71
ATTACHMENT I
JOBS GUARANTEE
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49 % TEA JOB GUARANTEE
� Wisconsin Department of Transportation
OT1280 11/2015 %TRANSPORTATION
ECONOMIC ASSISTANCE
The City of Oshkosh("Applicant")agrees to authorize the inclusion of,and be bound by,this repayment provision in the
separate State-Municipal Agreement(SMA)that.will be executed between It and the Wisconsin Department of
Transportation(WisDOT)as part of WisDOT's approval of Applicant's request for assistance under the Transportation
Facilities Economic Assistance and Development(TEA)program.
The City of Oshkosh agrees,in this repayment provision,to reimburse WlsDOT for up to the full grant amount If
employment within the economic development project(Southwest Industrial Park Transload Facility)fails to meet the
following goals:
From a baseline employment of 400 jobs:
(1) Creation of 6 new jobs within three years after the SMA Is executed;and,retention of said 6 new jobs seven years
after the SMA is executed
(2) In addition to said new jobs,retention of 400 jobs three years,and seven years,after the SMA is executed
Total number of jobs to be retained at both the three-year and seven-year reporting dates:406
For purposes of this provision,a job is defined to be consistent with Ch.Trans.510,Wis.Adm.Code. [twill include all new
non-retaii jobs and exclude jobs obtained through geographic job transfers within Wisconsin except those that would be
lost to the state. Eligible jobs include full time equivalents(FTE's).
At three years and again at seven years after the SMA is executed,the City of Oshkosh will report to WisDOT the number
of FTE jobs that were created and/or retained. For TEA grants of$100,000 or more,the reports will be accompanied by an
attestation report created and signed by an Independent Certified Public Accountant licensed or certified under ch.442,
Wis.Stats.,expressing an opinion on the number of eligible jobs;the director or principal officer of the City of Oshkosh
will also attest,Including by signature,to the accuracy of the job numbers.
If the job guarantee is not satisfied,WisDOT will evaluate the job benefits that have been obtained in order to determine if
reimbursement of either the full grant amount or a reduced amount,based on a prorated share related to the number of
jobs that have materialized as a result of the economic development project,is appropriate,or other remedy under s.Trans
510.08(3),Wis.Adm.Code.
The full grant amount involved here,of which partial or total reimbursement may be required,is$1,009,000.00.
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(Signature of WIsDOT Secretary) (Signature%f the Appi cant's Authorized Representative)
AA < /4Aahlaw coy M4i;ga4e.Y
(Print Name and Title of Represents e)
Mark Gottlieb,P.E. d/57/S (Dh L�t.roh ,1Vl PD. I
Secretary,
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Wisconsin Department of Transportation (street,PO lox)
ZIP Code)
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(City,
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(Date—m/d/yy) (Rat —m/ yy)
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AGREEMENT NO. 0449-11-71
ATTACHMENT II
EASEMENT/PROPERTY DESCRIPTION
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EXISTING LEGAL DESCRIPTION
PARENT PARCELS OF RAILROAD TRANSYARD FACILITY LEGAL DESCRIPTION
TAX PARCELS 13-3403-00-00 AND 13-3414-00-00
BEING ALL OF LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090 LOCATED IN THE SOUTHWEST%OF THE
NORTHEAST%AND THE NORTHWEST%OF THE SOUTHEAST%AND PART OF THE NORTHEAST%OF THE
SOUTHWEST%OF SECTION 32,TOWNSHIP 18 NORTH, RANGE 16 EAST, CITY OF OSHKOSH, WINNEBAGO
COUNTY,WISCONSIN, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE CENTER OF SECTION 32,TOWNSHIP 18 NORTH, RANGE 16 EAST;THENCE
N00°56'58"E, (RECORDED AS N00°57'58"E) 850.00 FEET ALONG THE EAST LINE OF THE OF THE
NORTHWEST%OF SAID SECTION 32, ALSO BEING THE WEST LINE OF CERTIFIED SURVEY MAP NUMBER
6090 RECORDED AS DOCUMENT NUMBER 1436328 IN VOLUME 1 PAGE 6090,WINNEBAGO COUNTY
REGISTER OF DEEDS TO THE NORTH WEST CORNER OF SAID CERTIFIED SURVEY MAP NUMBER 6090;
THENCE S16°27'14"E, 250.03 FEET(RECORDED AS S°29'29"E, 250.00 FEET)ALONG A NORTHEASTERLY
LINE OF SAID CERTIFIED SURVEY MAP NUMBER 6090;THENCE S00°5557"W, 611.16 FEET(RECORDED AS
S00°57'58"W, 611.10 FEET)ALONG AN EAST LINE OF SAID CERTIFIED SURVEY MAP NUMBER 6090;
THENCE S89°22'03"E, 690.06 FEET(RECORDED AS S89°21'03"E, 689.94 FEET)ALONG A NORTH LINE OF
SAID CERTIFIED SURVEY MAP NUMBER 6090 TO THE NORTHEAST CORNER OF SAID CERTIFIED SURVEY
MAP NUMBER 6090;THENCE S00°38'41"W,555.69 FEET(RECORDED AS S00°39'39"W, 555.74 FEET)
ALONG THE EAST LINE OF SAID CERTIFIED SURVEY MAP NUMBER 6090 TO THE SOUTHEAST CORNER OF
SAID CERTIFIED SURVEY MAP NUMBER 6090,ALSO BEING A POINT ON THE NORTH LINE OF THE
WISCONSIN SOUTHERN RAILROAD RIGHT-OF-WAY;THENCE S59°34'38"W,900.20 FEET(RECORDED AS
S59°36'05"W, 900.05 FEET)ALONG THE NORTH LINE OF SAID RAILROAD RIGHT-OF-WAY TO A POINT ON
THE EAST LINE OF THE SOUTHWEST%OF SAID SECTION 32;THENCE S59°35'27"W, 602.08 FEET ALONG
THE NORTH LINE OF SAID RAILROAD RIGHT-OF-WAY TO A POINT ON THE SOUTH LINE OF THE
NORTHEAST%OF THE SOUTHWEST%OF SAID SECTION 32;THENCE N89'18'26 W, 831.15 FEET ALONG
SAID NORTH LINE TO THE SOUTHWEST CORNER OF THE NORTHEAST'/a OF THE SOUTHWEST''/a OF
SECTION 32;THENCE N00°31'19"E, 1,325.79 FEET ALONG THE WEST LINE OF SAID NORTHEAST% OF THE
SOUTHWEST%OF SECTION 32 TO THE NORTHWEST CORNER OF SAID NORTHEAST%OF THE SW%OF
SECTION 32;THENCE S89°28'02"E, 1356.10 FEET ALONG THE NORTH LINE OF SAID NORTHEAST% OF
g THE SOUTHWEST%OF SECTION 32 TO THE POINT OF BEGINNING;
SAID AREA CONTAINS 2,372,055 SQUARE FEET OR 54.455 ACRES, MORE OR LESS.
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PROPOSED LEGAL DESCRIPTION (ONCE PLATTED)
TRANSLOAD FACILITY PROPERTY LEGAL DESCRIPTION
PART OF LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090 RECORDED AS DOCUMENT
NUMBER 1436328 IN VOLUME 1 PAGE 6090, WINNEBAGO COUNTY REGISTER OF DEEDS,
LOCATED IN THE NORTHWEST 'A OF THE SE '/4, ALSO PART OF THE NORTHEAST '/4 OF THE
SOUTHWEST '/4 OF SECTION 32, TOWNSHIP 18 NORTH, RANGE 16 EAST, CITY OF OSHKOSH,
WINNEBAGO COUNTY, WISCONSIN, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING FROM THE CENTER OF SECTION 32, TOWNSHIP 18 NORTH, RANGE 16
EAST; THENCE S89022'03"E, 765.75 FEET ALONG THE EXTENDED NORTH LINE AND NORTH
LINE OF LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090 TO THE NORTHEAST CORNER OF
LOT 3 OF SAID CERTIFIED SURVEY MAP NUMBER 6090; THENCE S00°38'41"W, 260.60 FEET
ALONG THE EAST LINE OF SAID LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090 TO THE
POINT OF BEGINNING; THENCE CONTINUING S00°38'41"W, 295.09 FEET ALONG THE EAST
LINE OF SAID LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090 TO THE SOUTHEAST CORNER
OF SAID LOT 3 OF CERTIFIED SURVEY MAP NUMBER 6090, ALSO BEING A POINT ON THE
NORTH RIGHT-OF-WAY LINE OF THE WISCONSIN SOUTHERN RAILROAD; THENCE
S59034'38"W, 900.20 FEET ALONG SAID RAILROAD RIGHT-OF-WAY; THENCE S59135'34"W,
459.70 FEET ALONG SAID RAILROAD RIGHT-OF-WAY; THENCE N30°47'36"W, 79.23 FEET TO
THE BEGINNING OF A CURVE TO THE RIGHT; THENCE 242.30 FEET ALONG SAID CURVE
THAT HAS A RADIUS OF 1,01 1.00 FEET AND A CHORD THAT BEARS N23055'39"W, 241 .72
FEET; THENCE N17°03'42"W, 159.96 FEET; THENCE N70025'28"E, 1,233.74 FEET; THENCE
N59012'25"E, 150.40 FEET; THENCE N13°19'25"E, 52.72 FEET; THENCE N90000'00"E, 57.78
FEET TO THE POINT OF BEGINNING. SAID AREA CONTAINS 496,619 SQUARE FEET OR
11 .401 ACRES, MORE OR LESS.
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AGREEMENT NO. 0449-11-71
ATTACHMENT III
INDUSTRIAL TRACK AGREEMENT
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WISCONSIN AND SOUTHERN RAILROAD L.L.C.
INDUSTRY TRACK AGREEMENT
THIS. INDUSTRY TRACK AGREEMENT, made as of this day, of 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
i 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
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signs, gates, fences or barriers, roadway construction, track drainage facilities, lighting, track
signals and signal maintenance.
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(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.
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(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
j 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
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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
ndmaintain 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
jshall 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
3 to bond over any such lien within fifteen(15) days.
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s LIABILITY
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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,
k ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL
OR OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR
I; 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
I RAILROAD TO CLAIMS THAT RAILROAD IS OTHER THAN A COMMON
E 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
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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
I 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
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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
i' 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.
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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:
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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.
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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.
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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
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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
ent. Damages recoverable b Railroad shall not be limited by the amount of the
of this A eem Y
provisions g
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
Ishall be deemed "Railroad" under this Agreement.
ASSIGNMENT
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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(3 0) 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.
r 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
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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.
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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: 2
Title: A a 4
WATCO TRANSLOADING,L.L.C.
By:
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CITY OF OSHKOSH,WI
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AGREEMENT NO. 0449-11-71
ATTACHMENT IV
LIEN
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