HomeMy WebLinkAbout6025RESOLUTION NO. 6025
A RESOLUTION APPROVING A SUPPLEMENTAL
AGREEMENT BETWEEN THE ATCHISON, TOPEKA
AND SANTA FE RAILWAY COMPANY AND PUEBLO,
A MUNICIPAL CORPORATION AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PUEBLO,
COLORADO, that:
Section 1.
The Supplemental Agreement dated February 25, 1987 between
the Atchison, Topeka and Santa Fe Railway Company and Pueblo, A
Municipal Corporation relating to substitution of a revised
Exhibit "A" print in contract 174962 covering trackage at Baxter
Road (Target Project), the original of which is on file in the
office of the City Clerk, having been approved by the City
Attorney, is hereby approved and the President of the City
Council is hereby authorized to execute same on behalf of
Pueblo, a Municipal Corporation.
Introduced May 26, 1987
Councilman
ATTEST:
r
e
Z" fflty Clerk
APPRO 7 E M! -
'Piresident of the City Council
RESOLUTION NO. 6025
A RESOLUTION APPROVING A SUPPLEMENTAL
AGREEMENT BETWEEN THE ATCHISON, TOPEKA
AND SANTA FE RAILWAY COMPANY AND PUEBLO,
A MUNICIPAL CORPORATION AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO
EXECUTE SAME.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PUEBLO,
COLORADO, that:
Section 1.
The Supplemental Agreement dated February 25, 1987 between
the Atchison, Topeka and Santa Fe Railway Company and Pueblo, A
Municipal Corporation relating to substitution of a revised
Exhibit "A" print in contract 174962 covering trackage at Baxter
Road (Target Project), the original of which is on file in the
office of the City Clerk, having been approved by the City
Attorney, is hereby approved and the President of the City
Council is hereby authorized to execute same on behalf of
Pueblo, a Municipal Corporation.
Introduced May 26, 1987
:� 6 O k 0 got •
Councilman
ATTEST:
r
e
Z7 ff , rty Clerk
APPROVED:
, esident of the City Council
SANTA FE ORIGINAL
GY -3232
SECRETARY'S CONTRACT NO.
Between
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
and
CITY OF PUEBLO, COLORADO
�6
SUPPLEMENTAL AGREEMENT
Relating to substitution of a revised
Exhibit " A " print in Contract 174962
covering trackage at Baxter, Colorado.
DATED February 25, 1987
SUPPLEMENTAL AGREEMENT, Made this 25th
day of February , 1987, between THE
ATCHISON TOPEKA AND SANTA FE RAILWAY
COMPANY, a Delaware corporation,
(hereinafter called "Santa Fe") and
CITY OF PUEBLO, COLORADO,
a municipal corporation of the State
of Colorado, hereinafter called
"Industry ").
R E C I T A L S•
Santa Fe and Industry are now parties to an agreement dated
March 26, 1986 , (Santa Fe's Secretary's Contract No. 174962 ),
together with any and all modifications, supplements and amendments thereto,
being hereinafter called the "Original Contract," relating to construction and
maintenance of an industry track serving a distribution warehouse at Baxter,
Pueblo County, Colorado.
Industry, and the parties hereto desire to substitute a revised
Exhibit " A " print to correctly show the track as constructed.
A G R E E M E N T:
IN CONSIDERATION of the sum of $1.00 and other consideration, the
receipt and sufficiency of which are hereby acknowledged by Santa Fe, it is
mutually agreed as follows:
1. The print No. 8 -05525 dated April 2, 1986 , last revised
February 18, 1987, marked Exhibit " A, " and attached hereto, is hereby
substituted for the print No. 8 -05525 dated April 2, 1986 , attached to
and made a part of the Original Contract.
This Supplemental Agreement shall be effective as of March 26, 1986
As herein supplemented, the Original Contract shall continue in full
force and effect.
- 2 -
IN WITNESS WHEREOF, this Supplemental Agreement has been duly
executed in duplicate by the parties hereto as of the day and year first above
written.
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
By ,
Its Atskant general Manager
ATTEST:
7 www 0, T
A OVE AS TO F
en ra Attorney - Ka s
241L/5743c/2226/6
CITY OF �Wa: a CO aR�aa
- 2 -
rc na er, r one or more persons, corporati or other en es,
referrers to as "Industry."
RECITALS:
Industry requires the construction of 1963.94 feet of railroad
track, along with the use and operation of 46Q of existing track,
If any, at or near the station of Baxter R`h`"06Ta UMt
in the State of Colorado , to serve a dist ribution warehouse
%, . c.rr r . U.� � r A=T m /9 %.w LM V+JGJ. Q 1 =%J LAY U PJU* t,& y * Jav ms r C *v m.L1
construct 879.% feet of such track, and it mutually agreed, Industry
shall construct 3.98 feet of such track. All of such track, both
new and existing, any, s hereinafter in its entirety referred to as "The
Track." That segment of The Track which shall be owned and maintained by
Santa Fe, is shown by bold line and that segment of The Track, if any, which
shall be owned and maintained by Industry, is shown by hatched line, upon the
print marked "Exhibit A" which is attached hereto and made a part hereof. The
bold line and hatched line segments are hereinafter separately referred to as
*Bold Track" and "Hatched Track," respectively. Santa Fe shall operate over
The Track and provide rail service to the Plant. If mutually satisfactory to
all parties to this Agreement, a revised Exhibit A print may be attached to
this Agreement, reflecting correct lengths and ownership of The Track, "as
built," and such revised Exhibit A shall supersede the Exhibit A print
originally attached hereto and made a part hereof.
Therefore, in consideration of the mutual covenants of the parties
herein contained, Santa Fe and Industry agree upon the following terms and
conditions.
ARTICLE I
Section 1. Industry shall and hereby does grant to the Santa Fe for
the term of this Agreement, free of cost, a right of way, of such widths as
are indicated on Exhibit A, or if Exhibit A does not indicate the width, such
right of way shall be eight and one-half (8 1/2) feet on each side of the
center line thereof, for all that portion, if any, of Hatched Track which is
located on property belonging t o Industry, with the T ight to operate Hatched
Track thereon. Where any part of The Track will lie on a public street, alley
or other thoroughfare, or upon property owned by third persons, corporations
or other entities, Industry shall secure to Santa Fe by ordinance or grant, as
the case may be, in form satisfactory to Santa Fe's Counsel, and without cost
to Santa Fe, the right, but not the obligation, to construct, maintain and
operate The Track thereon, together with the right to remove the same; in the
case of a grant, the right of way shall be of such widths as shown on Exhibit
A, or if not shown, such right of way shall be eight and ore -half (8 1/2) feet
on each side of the center line of The Track.
3/4/85- C&M /652L
9.;� d✓�
JUN - 19.
a K23.5�3 . FAFT 119
N p�36954 RECORDED
PIV - rRA C
PUEBLO COUNTY, COLORADO
CONTRACT FOR INDUSTRY
TRACK
f 7 . r
AUNT, Made as of this 26th
day of March
, 19 86
between THE ATCHISON,
TOPEKA AND SANTA FE RA AY COWANY a
,
corporatlon,
hereinafter referred to
as "Santa Fe," and
CITY OF PUEBLO COLORADO
a municipal co ra
o of the 9tate of
Co
rc na er, r one or more persons, corporati or other en es,
referrers to as "Industry."
RECITALS:
Industry requires the construction of 1963.94 feet of railroad
track, along with the use and operation of 46Q of existing track,
If any, at or near the station of Baxter R`h`"06Ta UMt
in the State of Colorado , to serve a dist ribution warehouse
%, . c.rr r . U.� � r A=T m /9 %.w LM V+JGJ. Q 1 =%J LAY U PJU* t,& y * Jav ms r C *v m.L1
construct 879.% feet of such track, and it mutually agreed, Industry
shall construct 3.98 feet of such track. All of such track, both
new and existing, any, s hereinafter in its entirety referred to as "The
Track." That segment of The Track which shall be owned and maintained by
Santa Fe, is shown by bold line and that segment of The Track, if any, which
shall be owned and maintained by Industry, is shown by hatched line, upon the
print marked "Exhibit A" which is attached hereto and made a part hereof. The
bold line and hatched line segments are hereinafter separately referred to as
*Bold Track" and "Hatched Track," respectively. Santa Fe shall operate over
The Track and provide rail service to the Plant. If mutually satisfactory to
all parties to this Agreement, a revised Exhibit A print may be attached to
this Agreement, reflecting correct lengths and ownership of The Track, "as
built," and such revised Exhibit A shall supersede the Exhibit A print
originally attached hereto and made a part hereof.
Therefore, in consideration of the mutual covenants of the parties
herein contained, Santa Fe and Industry agree upon the following terms and
conditions.
ARTICLE I
Section 1. Industry shall and hereby does grant to the Santa Fe for
the term of this Agreement, free of cost, a right of way, of such widths as
are indicated on Exhibit A, or if Exhibit A does not indicate the width, such
right of way shall be eight and one-half (8 1/2) feet on each side of the
center line thereof, for all that portion, if any, of Hatched Track which is
located on property belonging t o Industry, with the T ight to operate Hatched
Track thereon. Where any part of The Track will lie on a public street, alley
or other thoroughfare, or upon property owned by third persons, corporations
or other entities, Industry shall secure to Santa Fe by ordinance or grant, as
the case may be, in form satisfactory to Santa Fe's Counsel, and without cost
to Santa Fe, the right, but not the obligation, to construct, maintain and
operate The Track thereon, together with the right to remove the same; in the
case of a grant, the right of way shall be of such widths as shown on Exhibit
A, or if not shown, such right of way shall be eight and ore -half (8 1/2) feet
on each side of the center line of The Track.
3/4/85- C&M /652L
aoax2353 PmF119
Section 2. (a) Industry shall pay Santa Fe, in advance, Forty -nine
Thousand, Seven Hundred Fifty -eight and No /100 Dollars ($49
representing the cost of the Sold Track, including the cost to extend Bridge
610.5 and Bridge 610.4 with corrugated steel pipe, exclusive of all grading
and drainage structures, including casing water line and gas line to be
performed and provided by Industry at its sole cost and expense in a manner
satisfactory to Santa Fe.
(b) Industry shall construct or have constructed by a
private contractor, at its sole expense, trackage beyond Santa Fe's
property line , as shown on Exhibit A.
trackage shall conform in all _detail6 with Santa Fe's standards and
specifications for design, materials and construction. Santa Fe shall have
the right to have an Engineering representative inspect such trackage upon
completion of construction and to refuse to place any and all of such trackage
in service if it fails to conform with Santa Fe's standards and specifications.
Section 3. (a) Industry shall pay to Santa Fe, from time to time,
within twenty (20) days after bills are rendered therefor, the entire cost (or
an equitable share thereof in case other industries shall be served by the
Sold Track or a part thereof, or in case the Santa Fe shall make any other use
of The Track in the exercise of the right reserved in Article III, Section 1)
of maintaining and renewing that portion, if any, of the Sold Track beyond the
clearance point, as shown on Exhibit A, the Santa Fe to be the judge of the
necessity for and character of maintenance required on the Sold Track.
Industry shall also reimburse Santa Fe promptly upon receipt of bills for all
expenses incurred by Santa Fe as a result of the existence of The Track
including, but not limited to, the costs of grade crossing protection, roadway
construction, drainage installation, lighting, signalling and special
maintenance.
(b) Industry shall at all times, and at its sole expense,
maintain, or cause to be maintained, the Hatched Track, if any, in such safe
and satisfactory condition as necessary to conform with Santa Fe's standards
and specifications, and to conform with all applicable standards promulgated
by the Federal Railroad Administration, Occupational Safety and Health
Administration, any successor agency or agencies, and all other governmental
bodies having jurisdiction. LvJustry shall indemnify and save harmless the
Santa Fe from and against any and all liability for losses and damages
resulting from the failure of Industry properly to maintain the Hatched Track
or faetiltcre to omform with standards promulgated by governmental agencies
respecting the condition and maintenance of the Hatched Track and Industry's
property served by such track. Without relieving Industry from any of its
obligations under this or any other provision of this Agreement, Santa Fe may,
at its option, refuse to operate over or transfer cars upon the Hatched Track
whenever Santa Fe, in its 'ant, determines that than Hatched Track is
unsafe or unsatisfactory for such operation. If and when, in Santa Fe's
judgment, Industry has remedied such unsafe or unsatisfactory condition, Santa
Fe shall resume such operation over and transfer of cars upon the Hatched
Track.
Section 4. Industry shall operate the Plant during the term of this
Agreement.
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652L.
gooK2353 PAGE120
Section 5. (a) Industry shall indemnify and hold harmless Santa Fe
from and against any claim, loss, damage, expense or injury, .including death,
arising out of any act or omission of the Industry, its employes or agents, to
the person or property of the parties hereto and their employes, and to the
person or property of any other public body, individual, partnership,
corpo ration, or other legal entity while on or about The Track or while
exercising any right or performing any obligation, pursuant to this
Agreement. If any claim, loss, damage, expense, injury or death shall arise
from the joint or concurring negligee or misconduct of both parties hereto,
it shall be borne by them equally; provided however, such claim, loss,
damage, expense, injury or death did not arise out of a violation of a
statute, ordinance, rule, order, judgment, regulation or decision concerning
clearances from railroad tracks, or from the installation, maintenance, use,
removal, state of repair or presence of any gates, track scales, unloading
pits, loading or unloading devices or other obstructions placed along, across,
over or under The Track by Industry.
(b) If any loss, expense, damage, injury or death shall
arise from a violation of a statute, ordinance, rule, order, judgment,
regulation or decision concerning clearances from railroad tracks, or from the
installation, maintenance, use, removal, state of repair or presence of any
gates, track scales, unloading pits, loading or unloading devices or other
obstructions, then Industry shall bear the entire loss, damage or expense
incurred, as provided in Section 6 of Article I hereof.
(c) All of the provisions of this Section 5 are expressly
applicable during the operative period of this contract, including
specifically, but not exclusively, the period during which The Track is being
constructed.
Section 6. (a) Industry shall strictly comply with any and all
statutes, ordinances, rules, orders, judgments, regulations and decisions of
all governmental bodies having ,jurisdiction in the State in which The Track is
located, governing side clearances and overhead clearances from railroad
tracks in that State. Notwithstanding any provision of Section 5, Article I
of this Agreement, Industry shall indemnify Santa Fe from and against any and
all claims, loss, damage, expense, injury and death arising out of any breach
or alleged breach by Industry of the obligations of this Section 6, regardless
of whether such claim, loss, damage, expense, injury or death be caused or
contributed to by the negligence or alleged negligence of the Santa Fe, its
agents or employes,, or otherwise. Industry shall also reimbu se Santa Fe for
any money which Santa Fe has paid as a result of a violation or alleged
violation by Industry of any statute, ordinance, rule, order, ,judgment,
regulation or decision referred to in this Section 6.
(b) In the event Industry desires to install any gates
across and adjacent to The Track, or to install a track scale, unloading pit,
loading or unloading device, adjustable loading docks or doors at warehouses,
or any other structure which will impair the required clearances along The
Track, Industry shall first secure any and all required authority from the
State or other govenmental body or agency having ,jurisdiction, prescribed by
statute or Order of competent public authority, and shall furnish Santa Fe
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3- "5- CdM4=0 /695L
soom2353 , PAGE121
with a copy of such Order approving installation of the facility which will
Impair required clearances. Industry shall submit to Santa Fe the plans and
specifications for such facilities, and shall secure Santa Fe's written
approval thereof before any construction of such facilities is undertaken.
(c) Industry shall install, use and maintain all
facilities described in paragraph (b) of this Section 6 at its sole cost and
expense, in such a manner and of such materials, satisfactory to Santa Fe, and
as will not at any time be a source of dagger to or interference with the safe
operations by Santa Fe on The Track and on its railroad. hates across The
Track shall be opened whenever necessary to enable Santa Fe to operate over
The Track. Unloading pits shall be securely covered when not in actual use
and at all times when The Trade is being switched. Doors shall be 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. During installation and when using and repairing
these facilities, Industry shall exercise utmost and extraordinary diligence
to prevent dames to property of Santa Fe or injury to its agents or employes.
(d) In the event there are any existing facilities as
enumerated in paragraph (b) of this Section 6 or Industry places such
facilities along, across, over or under the Bald Trade, Industry shall be
responsible for and bear all cost for removal of said facilities, as well as
bear the cost of making any changes in said facilities or relocation thereof
in the event Santa Fe desires to make any other use of its property during the
term hereof. If Industry fails within thirty days after receiving written
request from Santa Fe to make such changes or fails to make proper removal
within thirty days of termination of this Agreement, Santa Fe may make such
changes or removal at Industry's expense.
(e) Vertical and horizontal clearances from The Track at
entrances to buildings, and such clearances from The Trade for the facilities
referred to in paragraph (b) of this Section 6, shall conform with those
specified in the Order authorizing such reduced clearances along The Track.
(f) Notwithstanding any provision of Section 5, Article I
of this Agreement, Industry shall indemnify and save harmless the Santa Fe
from and against any and all claims, loss, damage, expense, injury and death
arising or growing out of loss of or damage to property, including without
limitation, the facilities described in paragraph (b) of this Section 6, and
injury to or death of persons, including without Limitation, employes and
agents of Santa Fe, resulting in any manner from the construction,
installation, maintenance, use, state of repair, presence or removal of such
facilities along, under, across and adjacent to The Track, regardless of
whether such loss, damage, injury or death be caused or contributed to by the
negligence or alleged negligence of the Santa Fe, its agents, or employes, or
otherwise; and Industry atoll, promptly upon receipt of bill, pay to Santa Fe
the full amount of any loss or damage that Santa Fe may sustain, incur or
become liable for, and all suns which Santa Fe may pay or be compelled to pay
in settlement of any claims on account thereof.
sook,2353 P AGE122
Section 7. Notwithstanding any other provisions of this Agreement,
Industry shall compl with all statutes, ordinances, rules, regulations,
orders and decisions (hereinafter referred to as "Standards% issued by any
federal, state or local governmental body or agency established thereby
(hereinafter referred to as "Authority") relating to Industry's use of The
Track and its maintenance of the Hatched �racc and right of way therefor. In
its use of The Track asd its maintenance of the Hatched Track and right of way
therefor, Industry shall at all times be in full compliance with all
Standards, present or future, set by any authority, including, but not limited
to, Standards concerning air quality, water duality, noise, hazardous
substances and hazardous waste. In the event Industry fails to be in full
compliance with Standards set by any Authority, Santa Fe may, after giving
reasonable notice of the failure to Industry, and Industry, within thirty (0)
days of such notice, fails either to correct such non- compliance or to give
written notice to Santa Fe of its intent to contest the allegation of
non- compliance before the Authority establishing the Standard or in any other
proper forum, take whatever action is necessary to bring The Track into
compliance. Industry shall reimburse Santa Fe for all costs (including, but
not limited to, consulting, engineering, clean -up and disposal costs, and
legal costs) incurred by Santa Fe in complying with such Standards, and also
such costs incurred by Santa Fe in abating a violation of such Standards,
protecting against a threatened violation of such Standards, redesigning or
reconstructing The Track to comply with any Standard, and installing any
devices necessary to comply with any Standard, defending any claim of
violation of such Standards in any proceeding before any Authority or court,
and paying any fines or penalties imposed for such violations. Industry shall
assume liability for and shall save and hold harmless Santa Fe from any claim
of a violation of such Standards regardless of the nature thereof or the
Authority or person asserting such claim,, which results from Industry's use of
The Track, and its maintenance of the Hatched Track and right of way therefor,
whether such claim arises in whole or in part from the negligence or alleged
negligence of the Santa Fe or otherwise. Industry, at its cost, stall assume
the defense of all such claims regardless of whether they are asserted against
Industry or Santa Fe.
Section 8. (a) In addition to the rights and obligations of Industry
and Santa Fe provided in Section 7, Article I of this Agreement, relating to
Industry's compliance with Standards issued by any Authority concerning
hazardous substances and hazardous waste and notwithstanding Industry's other
indemnity obligations described elsewhere in this Agreement, Industry agrees
that, with respect to its use of the Sold Track, it shall periodically furnish
Santa Fe with proof, satisfactory to Santa Fe, that Industry is in full
compliance with Standards issued by any Authority concerning hazardous
substances and /or hazards waste. Should Industry fail to comply with such
Standards concerning hazardous substances and/or hazardous waste,
notwithstanding any other provision of this Agreement and in addition to and
not exclusive of any other rights of the Santa Fe, Santa Fe may at its option
terminate this Agreement upon reasonable notice; however, any waiver by Santa
Fe of any breach of Inds try's obligations shall not constitute a waiver of
the right to terminate this Agreement for any subsequent breach which may
occur or to enforce any other provision of this Agreement. Further,
regardless of any negligence or alleged negligence of the Santa Fe, Industry
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shall assume liability for and save and hold harmless the Santa Fe from and
against all injuries to or death of any person and loss of or damage to any
party, including without limitation, employes and property of Industry and
Santa Fe, together with all related expenses, including without limitation
attorneys' tees, investigators' fees, and litigation expenses, resulting in
whole or in part from Industry's failure to comply with any Standard issued by
any Authority concerning hazardous substances and /or hazardous waste.
(b) It is understood and agreed that an Industry who does
not now, or in the future, generate, handle, transport, treat, store, or
dispose of hazardous waste or hazardous substances, as *hazardous waste" and
"hazardous substan eO may now or in the future be defined by any federal,
state or local governmental agency or body, is not subject to the provisions
of this Section 6.
Section 9. Upon written notice from Santa Fe, Industry agrees to
assume the defense of any lawsuit, administrative action or other proceeding
brought against Santa Fe by any public body, individual, partnership,
corporation, or other legal 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 the Santa Fe. Industry shall pay all the costs
incident to such defense including, but not limited to, attorneys' flees,
investigators' fees, litigation expenses, settlement payments, and amounts
paid in satisfaction of judgments. Any and all lawsuits or administrative
actions brought or threatened on any theory of relief available at law, in
equity or under the rules of any administrative agency shall be covered by
this Section 9 including, but not limited to, the theories of intentional
misconduct, negligence, breach of statute or ordinance, or upon any theory
created by any statute or ordinance, state or federal.
ARTICLE II
Section 1. Subject to the provisions of Sections 2 and 3 of
Article I hereof, Santa Fe agrees to construct and maintain the Sold --
iracmk aping the term or tats agreesment, unless its obligation so to maintain
it may be sooner terminated as herein provided, and to transfer cars, loaded
or empty, over The Track to and from the Plant, subject to any lawful charges
that may be imposed by Santa Fe for such transfer; provided, however, that
Santa Fe assumes no obligation to transfer cars over the Hatched Track in the
event the Im story fails to maintain the Hatched Track in asad ordance with
Section 3 of Article I hereof.
Section Z. All operations by Santa Fe over The Track and all
maintenance and construction work on The Track shall be in compliance with all
statutes, ordinances, rules, orders, decisions and other actions of all
governmental bodies having jurisdiction over the conduct of Santa Fe's
railroad business. Santa Fe's obligations under this Agreement are expressly
subject to such statutes, ordinances, rules, orders, decisions and other
act ons.
Section 3. Whenever in the judgment of Santa Fe operation of trains
over the Hatched Track or any segment thereof involves a significant risk of
injury to persons or property located on or near the Hatched Track, Santa Fe
may cease operations over the Hatched Track until such risk is removed. Such
cessation of operations shall not constitute a breach of this Agreement by
Santa Fe.
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Section 4. Industry shall promptly report to Santa Fe any conditions
or activities upon The Track which create an unreasonable risk of ham to
persons or property and shall take whatever action is reasonably necessary to
prevent injury to persons or property arising out of such conditions or
activities; provided, however, that Industry's reporting to Santa Fe shall not
relieve Industry of any obligation whatsoever imposed on it by this Agreement.
Section S. Industry shall take whatever action is necessary to
prevent unauthorized persons or property from coming upon the Hatched Track or
remaining thereon. Notwithstanding any other provisions of this Agreement,
Industry shall be solely liable for any injury to or caused by such
unauthorized persons or for damage to or caused by any unauthorized property
occuring on or near the Hatched Track which Industry should have either
prevented from coming upon or removed from the Hatched Track.
ARTICLE III
Section 1. The title to the Sold Track and to all property furnished
in the maintenance thereof shall be in Santa Fe. The title to the Hatched
Track and to all property furnished in the maintenance thereof shall be in
Industry. Santa Fe shall have the right to use The Track for other than the
express purpose of serving the Plant.
Section 2. (a) If the Industry shall fail for a period of eight
months in any period of twelve months to operate the Plant, or shell fail or
refuse to comply with or carry out any of the covenants or agreements herein
contained, Santa Fe may, at its option, expressed in writing, terminate this
Agreement. If Industry fails to remedy, or to take appropriate action to
remedy, any condition on or about the Hatched Track for a period of 30 days
following written notice of the condition by Santa Fe, Santa Fe may, at its
option, terminate this Agreement on 30 days' written notice to Industry. With
the exception of the notice requirement, the provisions of Section 3,
Article III shall apply to such termination.
(b) No termination mall release Industry 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.
Section 3. Unless earlier terminated as herein provided, this
Agreement stall be in force for the term of FtXR YEARS AND SIX MNTHS from its
date acid thereafter until terminated by either party giving to the other six
months' written notice of its desire to terminate the same. Upon such or any
other termination, Santa Fe shall pay to the Industry the salvage value of the
materials, less cost of removal, in such portion of the Sold Trade as shall
have been paid for by the Industry or its predecessors on other than a refund
basis, such salvage to be based on value at the date of termination, or the
amount originally paid the Santa Fe for such materials by the Industry,
whichever is less, and the Santa Fe shall have the right to remove the Bold
Track and every part thereof. This Agreement shall also terminate forthwith
in the event Santa Fe shall be dispossessed of the right to grate over any
privately owned track of which The Trade or any part thereof is an extension.
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Booa.23531 ParF125
Section 4. Any notice to be given by Santa Fe to Industry hereunder,
and any notice to be given by Industry to Santa Fe hereunder, shall be deemed
to be properly served if it be deposited with the United States Postal
Service, or its successor, postage prepaid, addressed to the other party or
Parties hereto, at the addresses shown on the signature page of this
Agreement.
Section 5. In the event that Industry embraces two or more persons,
corporations or entities, all the covenants and agreements of Industry herein
shall be the joint and several covenants and agreements of such persons,
corporations or entities.
Section 6. All the covenants and provisions of this Agreement shall
be binding upon the successors, heirs, legal representatives and assigns of
Industry to the same extent and effect as the same are binding upon Industry,
and each and every covenant herein shall inure in favor of and run to the
successors and assigns of Santa Fe and to each and every person, firm or
corporation which may hereafter own or be in possession of or operate the
railroad of the Santa Fe to the same extent and as fully as though such
person, firm or corporation were specifically named in this Agreement in the
place and stead of the Santa Fe; provided, however, no assignment hereof by
Industry, its successors, heirs, legal representatives or assigns, or any
subsequent assignee, shall be binding upon the Santa Fe without the written
consent of Santa Fe in each instance.
Section 7. All questions arising under this Agreement shall be
decided according to the laws of the State in which The Track is located.
Section 8. This Agreement represents the full and complete agreement
of Santa Fe and Industry with respect to all matters relating to the
construction, maintenance and operation of The Track and supersedes all other
agreements, contracts, understandings, and negotiations between the parties
relating to the construction, maintenance and operation of The Track.
Suction 9. This Agreement shall supersede and cancel the following
Contracts for Industry Track between the parties hereto or their predecessors,
covering trackage at this location; and, the assumption by Santa Fe, under
Section 3, Article III of this Agreement, of an obligation to pay to the
Industry the salvage value of all or part of the Sold Track upon termination
of this Agreement, shall be deemed to constitute full and complete fulfillment
and discharge of any similar obligation to pay to the Industry the salvage
value of trackage paid for by the Industry or its predecessors under any or
all of such Contracts so cancelled.
Santa Fe's deer of Feet of Bold Track
Secretary's Paid For By Industry on
Contract No. Dated tither Than a Refund Basis
No contract for Industry Track to be terminated by this Agreement.
3- 4- 85- CAM/652L
- - s6o=53 PAGFI-26
IN WITNESS WHEREOF, the parties have executed this Agreement in
du licate as of the day and year first above written.
THE ATGMISON, TOPEKA AND SANTA FE RAILWAY MANY
Address: P. O. Box 1738, Topeka, Kansas 66628
By
Its _ Assistant to Genaral M6na9w
CITY OF PUEBLO, M am
At
By
Its Mayor
d v '
y.\
APPROVED AS TO FORM
M orney - ansas
9 -
3-4-85-CAM/652L/5016a/2226/3