ITC Ind Dev-New Trk 03/01/03
INDUSTRY TRACK CONTRACT
ARTICLES OF AGREEMENT
THIS AGREEMENT is made and entered into as of the 27th day of May, 2005, by and between UNION PACIFIC RAILROAD COMPANY , a Delaware corporation, to be addressed at 1400 Douglas Street, Omaha, NE 68179 (hereinafter the “Railroad”), and CXT, INC., a Delaware corporation, to be addressed at 2420 North Pioneer Lane, Spokane, WA 99216 (hereinafter the “Industry”).
The Industry desires the construction, maintenance and operation of a 5,135-foot Track A, 4,866-foot Track B, 647-foot Track C and 1,245-foot Track D (hereinafter “Track”) at or near Milepost 146.0, Kearney Subdivision, in Grand Island, Buffalo County, Nebraska, as shown on the attached drawing dated February 11, 2005, marked Exhibit A , hereto attached and hereby made a part hereof.
NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. RELATED AGREEMENT .
This Agreement is made pursuant to the terms and conditions contained in the Agreement dated January 21, 2005, between the Railroad and Industry (the “CXT Tie Agreement”).
Article 2. TRACK IDENTIFICATION MARKERS .
For the purpose of this Agreement, the following segments of the Track shall be identified as follows:
Article 3. PORTIONS OF TRACK TO BE CONSTRUCTED BY RAILROAD .
The Railroad will construct all track depicted on Exhibit A as “Proposed R.R. Owned Track.”
ITC Ind Dev-New Trk 03/01/03
Article 4. PORTIONS OF TRACK TO BE CONSTRUCTED BY INDUSTRY .
A. The Industry, at its own expense and subject to the prior approval of the Railroad, will perform all grading and install all necessary drainage facilities required in connection with the construction of the Track to the standards and satisfaction of the Railroad, and arrange to modify any overhead and/or underground utilities to meet Railroad specifications.
B. The Industry, at its own expense, will construct all track depicted on Exhibit A as “Proposed Ind. Owned Trackage.”
Article 5. RIGHT-OF-WAY AND PRIVILEGE .
The Industry shall procure any needed right-of-way, public authority or permission for construction, maintenance and operation of the Track outside the limits of the Railroad’s right-of-way. The Industry shall pay any fees or costs imposed by any public authority or person for the privilege of constructing, maintaining and operating the Track.
Article 6. GRANT OF RIGHT; USE AND OPERATION OF THE TRACK .
A. During the term hereof and subject to the terms and conditions set forth in this Agreement, Railroad hereby grants to Industry the right, at Industry’s sole cost and responsibility, to construct, own, keep, maintain, repair and use Industry’s private section of Track where located on and along Railroad’s right-of-way.
B. The Railroad shall operate the Track subject to any applicable tariffs or rail transportation contracts and the terms of this Agreement, but the Railroad shall not be obligated to operate or maintain the Track (and the Industry shall not have any claim against the Railroad) if the Railroad is prevented or hindered from doing so by the Industry’s breach or by acts of God, public authority, strikes, riots, labor disputes, or other cause beyond its control. The Railroad shall have the right to use the Track when not to the detriment of the Industry.
C. The Industry shall bear the cost of any modifications to the Railroad’s tracks, structures and communication facilities, other than track changes connected with the initial switch connection, required by the construction, reconstruction or operation of the Track.
D. The use and operation of the Track shall also be in accordance with the terms and conditions set forth in Exhibit B, hereto attached and hereby made a part hereof.
Article 7. OWNERSHIP OF THE TRACK .
A. The Railroad shall own the portion of Track A from the point of switch to the 13-foot clearance point and the portion of Track C from the point of switch to the 13-foot clearance point (hereinafter “Railroad-owned Track”).
B. The Industry shall own the portion of Track A from the 13-foot clearance point to the end of the track, all of Track B, the portion of Track C from the 13-foot clearance point to the end of the track, and all of Track D (hereinafter “Industry-owned Track”).
Article 8. MAINTENANCE OF THE TRACK STRUCTURE (RAIL, TIES, BALLAST, OTHER TRACK MATERIAL) .
A. The Railroad, at its expense, shall maintain the track structure for the portion of Railroad-owned Track.
ITC Ind Dev-New Trk 03/01/03
B. The Industry, at its expense, shall maintain the track structure for the portion of Industry-owned Track.
Article 9. MAINTENANCE OF RIGHT-OF-WAY AND TRACK APPURTENANCES .
A. The Railroad, at its expense, shall maintain the right-of-way and track appurtenances for the portion of Railroad-owned Track.
B. The Industry, at its expense, shall perform the following maintenance of the right- of-way and track appurtenances for the portion of Industry-owned Track:
1. Remove snow, ice, sand and other substances and maintain drainage and grading as needed to permit safe operation over the Track.
2. Maintain all appurtenances to the Track (other than an automatic signal system), including without limitation, gates, fences, bridges, undertrack unloading pits, loading or unloading devices and warning signs above, below or beside the Track.
Article 10. INDUSTRY TO GIVE NOTICE; FLAGGING .
The Industry shall comply with the flagging provisions contained in Section 1(j) of Exhibit B prior to entering Railroad’s right-of-way for the purpose of performing any construction or maintenance of the Track as set forth in this Agreement.
Article 11. CONSTRUCTION, MAINTENANCE AND REPAIRS BY INDUSTRY TO CONFORM TO RAILROAD STANDARDS .
A. Track construction, maintenance and repair work performed by the Industry shall conform to the Railroad’s standards. If, in the judgment of the Railroad, any portion of the Track is non-conforming and/or unsafe for railroad operations, the Railroad shall not be obligated to operate over the Track.
B. The Railroad, at the Industry’s expense, shall have the right, but not be required, to make repairs on the Industry-owned Track when requested by the Industry or when necessary to operate the Track safely.
Article 12. NON-DISCLOSURE; CONFIDENTIALITY .
Except to the extent that disclosure of information contained in this Agreement is required by law, the contents of this Agreement shall not be disclosed or released by any party without the written consent of all other parties to this Agreement.
Article 13. TERM .
This Agreement shall take effect as of the date of this Agreement and shall continue in full force and effect until terminated as herein provided.
Article 14. CONSENT OF THE RAILROAD TO CERTAIN FACILITIES OR OPERATIONS .
The Railroad hereby consents to the construction, maintenance and operation by the Industry of three private road crossings as shown on Exhibit A ; subject to the terms, provisions and conditions set forth in this Agreement and to any prior regulatory approval that may be needed.
ITC Ind Dev-New Trk 03/01/03
Article 15. INSURANCE
The Industry shall, at its sole cost and expense, procure and maintain during the term of this Agreement insurance coverage as set forth in Exhibit C, attached hereto and by this reference incorporated herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate as of the date first herein written.
The terms of the CXT Tie Agreement shall prevail over any conflicting terms herein, e.g. Industry’s right to remove its property would be governed by Section 2.9 of the Tie Agreement and not Section 7 of Exhibit B hereto.
Section 1. SAFETY .
(a) Clearances/Impairments . The Industry shall not permit or maintain any building, platform, fence, gate, vehicle, or other structure, obstruction or material of any kind, closer to the Track then the standard clearances of the Railroad without the prior written consent of the Railroad. The standard clearances of the Railroad are (i) horizontally , nine (9) feet from the centerline of the Track, and (ii) vertically , twenty-three (23) feet above the top of the rail of the Track. For any portion of the Track that is curved, the standard horizontal clearance shall be increased one and one-half inches for each degree of curvature. All doors, windows and gates shall be of the sliding type or open away from the Track if opening them toward the Track would impair clearances. Any moveable appliance, including, but not limited to, dock plates and loading or unloading spouts or equipment, that impairs the standard clearances only when in use, shall be securely stored or fastened by the Industry when not in use so as to not impair such clearances. If greater clearances are required by the National Electrical Safety Code or by statute, regulation or other competent public authority, the Industry shall comply therewith and shall obtain any necessary public authority and Railroad consent to impair clearances before creating an impairment. Any structure, material or other obstruction (whether in use or not) which is closer to the Track than the Railroad’s standard clearances or applicable public authority, whichever distance is greater, shall be considered an impairment, whether or not consented to or permitted by the Railroad or public authority.
(b) Facilities . The Industry shall not construct, locate, maintain or permit the construction or erection of any pits, loadout facilities, buildings, private crossings, beams, pipes, wires, or other obstructions or installations of any kind or character (hereinafter “Facilities”) over or under the Track without the prior written consent of the Railroad.
(c) Walkways . The Industry, at its expense, shall provide and maintain a Clear and safe pathway for Railroad employees along both sides of the Track beyond the clearance point. If walkways are required by statute or regulation, the Industry, at its expense, shall ensure that walkways are built and maintained to conform with such statute or regulation.
(d) Industry to Train and Oversee Employees . The Industry shall have a non-delegable duty and responsibility to train and oversee its employees and agents as to proper and safe working practices while performing any work in connection with this Agreement, or any work associated with the Railroad serving the Industry over the Track.
(e) Intraplant Switching . The Industry shall not perform, permit or cause intraplant switching without the prior written consent of the Railroad. Intraplant switching means the movement of rail cars on the Track by the Industry by any method and includes the Industry’s capacity to move rail cars, whether before, during or after any such movement.
(f) Standards . The Industry shall comply with all applicable ordinances, regulations, statutes, rules, decisions and orders including, but not limited to, safety, zoning, air and water quality, noise, hazardous substances and hazardous wastes (hereinafter “Standards”) issued by any federal, state or local governmental body or agency (hereinafter “Authority”). If the Industry is not in full compliance with any Standards issued by any authorized Authority, the Railroad, after notifying the Industry of its noncompliance and the Industry’s failure within twenty days of such notice to correct such noncompliance, may elect to take whatever action is necessary to bring the Track and any Railroad property into compliance with such Standards; PROVIDED, HOWEVER, that if Industry’s failure to comply with Standards interferes with, obstructs or endangers Railroad mainline or yard operations in any way, Railroad may initiate compliance action immediately. The Industry shall reimburse the Railroad for all costs (including, but not limited to, consulting, engineering, clean-up, disposal, legal costs and attorneys’ fees, fines and penalties) incurred by the Railroad in complying with, abating a violation of, or defending any claim of violation of such Standards. A waiver by the Railroad of the breach by the Industry of any covenant or condition of this Agreement shall not impair the right of the Railroad to avail itself of any remedy for any subsequent breach thereof.
(g) Railcars Containing Hazardous Materials . If the Industry uses the Track for the purpose of shipping, receiving or storing railcars containing hazardous materials, as defined by the Department of Transportation (the “DOT”). The Industry will comply with and abide by all DOT regulations as set out in 49 Code of Federal Regulations, Parts 100-199, inclusive, as amended from time to time, and provisions contained in applicable Circular’s of the Bureau of Explosives, Association of American Railroads, including any and all amendments and supplements thereto. The term “Standards” defined in Section 1 (f) shall include (but is not limited to) regulations referenced in this subsection (g).
(h) Telecommunications and Fiber Optic Cable Systems . Telecommunications and Fiber optic cable systems may be buried on the Railroad’s property. Industry shall telephone the Railroad during normal business hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if telecommunications or fiber optic cable are buried anywhere on the Railroad’s premises to be used by the Industry. If it is, Industry will telephone the telecommunication company(ies) involved, arrange for a cable locator, and make arrangements for relocation or other protection of the cable and will commence no work on Railroad’s property until all such protection or relocation has been accomplished.
(i) Fire Precautions . Industry shall not permit, place, pile, store, or stack any flammable material within ten (10) feet of centerline of the Track. Industry shall remove or otherwise control vegetation adjacent to the Track so that it does not constitute a fire hazard. Industry shall ensure that suitable firefighting equipment is available and in working order.
(j) Notice and Flagging . Prior to entering Railroad’s right of way or other property for the purpose of performing any maintenance, repair, or reconstruction of the Track as set forth in this Agreement, and/or constructing additional track segments connecting to the Track, the Industry and/or its contractors are required to first notify the Railroad’s local Manager of Track Maintenance at least ten (10) working days in advance of such work so that the Railroad can determine if flagging and/or other protection is needed. If Railroad deems that flagging and/or other protection is needed, no work of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicles(s), or thing(s) shall be located, operated, placed, or stored within 25 feet of the Track or any other track of Railroad at any time, for any reason, unless and until a Railroad flagman is provided to watch for trains. If flagging or other special protective or safety measures are performed by the Railroad, such services will be provided at Industry’s expense with the understanding that if the Railroad provides any flagging or other services, the Industry shall not be relieved of any of its responsibilities or