HomeMy WebLinkAboutResolution #1152RESOLUTION NO . ~ 5,2
A RESOLUTION APPROVING A "LICENSE" BETWEEN THE CITY OF CANTON AND THE
ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND AUTHORIZING AND
DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE AND DELIVER SAID AGREEMENT
ON BEHALF OF THE CITY OF CANTON, ILLINOIS
WHEREAS, the Canton City Council has determined that it is necessary
and in the best interest of the City of Canton to enter into a "License"
with the Atchison, Topeka and Santa Fe Railway for the use of the railway
right-of-way as set forth in Exhibit "A" hereto attached.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CANTON, Fulton County, Illinois, as follows:
1. That Exhibit "A" hereto attached and herein incorporated by
reference is hereby approved by the Canton City Council.
2. That the Mayor and City Clerk are hereby authorized and directed
to execute originals of Exhibit."A" and to deliver the same on behalf
of the City of Canton.
3. That this Resolution shall be in full force and effect
immediately upon its passage by the City Council of the City of Canton,
Fulton County, Illinois, and approval by the Mayor thereof.
PASSED by the City Council of the City of Canton, Fulton County,
Illinois at a regular meeting this 15 t h day of l~ p r i l , 1986,
~g~ _ a _r~6IT call- -~i~te ~-~olIows :~~_ ~~- -_ _.___
AYES: Aldermen KovaChevich, Zilly, Steck, Sarff, Workman,
Bohler, May, Chapman.
NAYS: None.
ABSENT: None.
APPROVED:
~~~
Donald E. Edwards, Mayor
ATTEST:
Nan White , City Clerk
LICFf~iSE
THIS LICENSE, Made as of the 25th day of Pdareh , ~ ~~ ,
between Tt-IE ATC~IISON, TOPEKA ANO SAFIfA FE FtAl tXl~ PAN , a (Delaware
cozporation (t~reinafter called "Licensor"), and
CITY QF CANTON a munici al co oration of the Sta e o no s
here Wafter, whether arue party or mare, called "Licensee
WITNESSETN, That the parties hereto for the consideration hereinafter
expressed covenant and agree as follows:
1. Licensor hereby licenses Licensee to use, subject to ttte rights
and eases~nts hereinafter excepted and z~~served and upon tt~ terms arv~
conditions hereinafter set Earth, the land {hereinafter called "Premises")
situated at or near Canton ,County of Fulton ,
State of Illinois , s wn as shaded area on pr n re o
attached, ,dated Februa l 198E s
marked "Exhib t an made a part hereo , for a terns beginning on
~ ly , and ending when this license shall
erm Hate. as re na er provide3.
2. Licensor hereby excepts and reserves t~~ right, to l~ exercised
by Licensor anc~ by any others who have obtained ar may oe3tain permissia~r or
authority fr~n Licensor sa to do, {a) to operate, rna~.ntair~, renew and relocate
any and all existing pipe, power, and corrmunicatian lines ar~.i appurtenances
and other facilities of like character upon, over or urKler the surface of the
Premises; and (b) Prom time to time to construct, operate, maintain, renew ar~td
relocate such additional facilities of the same character gas will not
unreasonably interfere with the use of the eternises by Licensee for the
purpose specified in Section ~ hereof.
3. Licensee shall pay to Licensor as compensation for tt~ use of the
Prc~rnises the sum of One ~lundred and NoJ100 t7ollars
($ lOtl.Qfl )per e_~r payable in a~,~vance. Licensar may revise said
cc~ens- a onafter the end~o each three (~) year period.
4. Licensee covenants and warrants that Licensee either awns, or has
obtained from the owner or owners thereof the right to use ar7y improverrrentJ
now on the Premises shown or described an said Eachibit A as "Licensee's
Existing Improvements." Such improvements, if any, together with any other
i.rr~rnvements hereafter placed upon the Premises by or for account of Licensee
are hereinafter called "Improvements."
5. Licensee shall pay hefnre thy: same +'~.c4mQ delinquent all taxes,
charges, rates, and assessments which may, during the term of this license, be
levied upon, or assessed against, or be 4quitaaly chargeatale tt~ tar assessed in
respect of the Improvements; and where any such tax, rate, charge, or
assessment may be ~nbraced in the r~eneral amraunt of taxes charged upon the
Premises separately or in connection with other property of Licensor and
Licensor shall pay all of said taxes, then LiGPnsr~e shall pttrmFatly re;~ay ur
refund to Licensor the amount or part of the tax, charge, rate ~r assessment
equitably or fairly apportionable to the improvements.
3-4-85-1E17/t~1aOl.
F. (a) Licensee shall use the Premises exclusively as a site for
t ora stora.e of excavated material
the object of Licenser he ng to fac 1 tatr; the canvena.ent aperat an o thr3
railroad, telegraph anci telephone lines of Licensor, and the transaction of
business thereon. In case Licensee shall use the Premises far any otl--er
purpose whatever than above mentioned, then Licensor may =;~eclare this license
at an end and prevent Licensee from using or remaining upon tip: Premises, with
or without process of law. Licensee shall eat have the exclusive: possession
of the €'remises as against Licensor. Licensee; covenants that it will eat
treat, storn ar ciispnse of an the Premises "hazardous waste" ar "hazax~daus
substances," as "hazardous waste" and "hazardous substances" may now or in tt~
future be r~efir-cd by any federal, state, or local c~averr~:ntal agency ar
k~acty. In the event the Premises are now ar in the future used in generating:
harr~lin*;, or transpartirag tsf "hazardous waste" or "hazardous sut.~stances,"
Licensee agrees fully to comply with all applicable federal, state, and local
laws, rs.~1PS, regulations, ord+~rs, .decision:; an~~ arz~inances (t~reinafter
referred try as "Standards") Concerning "hazardous waste" and "hazardous
substances." Licensee further agrees periodically to furnis~y Licensor with
proof, satisfactory to Licensor, that Licensee is in such compliance. In any
event, Licensee shall allow Licensor to enter upon the t"'remis~:s at reasonable
times far the purpose of inspection. Should Licensee eat caa~aly fully with
the above-stated obligations of this Sectir~n, natwithstanciing anytr~ing
contained in any other provision hereof, Licensor may, at its option,
te:•.rrinate this license by servinr~ five (5) days' notice of ta~r~rtination upon
Licensee; but any waiver by Lics~nsor of any bx~ach of Licensee's oblagations
shall trot constitutes a waiver of the right to terminate this License far any
subsequent breach which may occur, ar to enforce any other provision of this
license. Upon tern+inatian, Licensee shall ti:,e governed trty the two sections of
this license regarding Licensee's surrender of possession of the Premises.
(b) Notwithstanding anything contained in the liability sections
hereof, in case of a breach of the obligations canta~.ned in this section, ar
any of them, regardless of the neglir.~encA ar alleged negligence of Licensor,
Licensee agrees to assume liability for and to save and bald harmless Licensor
from anr~! against all in,~uries to any person arm damage to property, inclitcfirig
without limitation, employes and property of Licensor and Licensee and all
related expenses, including wi.thaut limitation attorneys' fees, investigators'
fees arui litigation expenses, resultirx~ in whale ar in part Pram Licensee's
failure to comply with any Stanciarri issued day ar,y yovernmentaL authority
concPrninc~ "hazardous substances" and/ar "hazardous waste." Licensee, at its
cost, shall assume the defense of all claims, ~.uits ar actions €~mught for
damages, and fines ar penalties hereunder, regardless of whether tt7cy are
assPrteri against Licensor ar Licensee. Licensee alst~ ,agrees to reimburse
Licensor for all casts of any kind incurred as a result of t"-~ ~.icensee's
failurn to ramply with this Section, inclu~in±~, but not limiters to, fines,
penalties, clean--up and disposal costs, and les~al costs incurred as a result
of Licensee's ger~ratirxg, handling, transporting, treating, storing, ar
disposing of "hazardous waste" ar "hazardous substances" an the F'~.~emises.
(c) It is understood and agreed that a Licensee who dnea riot now,
ar in the future, generate, handle, transport, treat, store ar dispose of
"hazan~ous waste" or "hazardot.as substances" within ttr ~~neaning ~rf thiis
Section, is eat subject to the provisions of Section c~ (b) hereof.
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3-4-X35-1617/1..
~. Licensee shall keep and maintain the Premises and Irr~arcavements i-~-
such safe, sanitary, and sightly condition as shall ur; satisfactory to
Licensor, and, if ret~.a5.red by Licensor, shalt paint the Tm~~roversrerats with
paints of a color approved by Licensor, and if Licensee fails or refuses
within fifteen (15) days after receipt of any request uy Licensor so to do,
Licensor may, at its o tion, perform such work, and in such event Licensee
shall within thirty (30) days after the rendition of gill therefor reimUurse
Licensor tar the cost sa incurred.
8. Tn usir~ the Premises, an+~ in constructing, maintainirx,~,
operating and using the Improvements thereon, Licensee shall comply with any
arxi all rQC~airements imposed by federal or state statutPS, ar ray ordinar~rcc:s,
orders, or regulations of any governmental txjdy havinr~ ,jurisdiction
thereover. In the event tt~ Premises or Irr~rovernents shall be used for tf~e
loading, unloading, staring, or otherwise handling of any petroleum products,
Licensee shall canply with all regulations anii recornmendatirans from time to
time prcxnulgated by the Bureau of Explosives of the Association of American
Railroar~s, or any successor agency. All artificial lighting in pump houses,
warehouses, or other enclosures upon the Premises, where oil or other
9.nflammahle fluid supplies are handled or starred fay Licensee, except in
untaroken original containers, shall be fay electricity, and such electrical
installation and any other electrical installation upon tt~ Premises shall at
all times conform to and tae maintained in accordance with tPte provisions of
the then current edition 7f the t~JatLranal electrical ;,ode with respect Ito
Class T hazardous locations. Licensee sha11 promptly pay aril dischar~ any
anr.9 all li!~ns arising out of any construction, alteration or repair work dog,
or suffered or permitted to tae done, fay Licensee on tt~ee Premises, and Licensor
is hereby authorized to host any notices or takr any otter action upon or witt'-
respect to the Premises that is or may be permitted by law to prevent the
attachment of any such liens to tt~ Premises; provided, however, that failure
of Licensor to take any such action shall not relieve Licensee of any
obligatican or liataility under this or any rather section Hereof .
9. Licensee shall at all times keep a space of six (~) feet from
the nearest rail of any railroad track entirely cl€~ar of structures, material
are! obstructions of every sort and shall observe an overhead clearance of not
less than twenty-five {25) feet atxave t4~ top of rail; Taut, nevertheless,
Licensee may erect platforms which shall not ~ more than three {3) feet and
six (6) inch~!s higher than the top of thu rail y, and which at no point shall
tae nearer than four (4) feet to the nearest side of the head of tt7a nearest
rail of such track; however, if by statute or order of competent public
authority different clearances shall he required, then Licensee shall strictly
ccxnply with such statute or order.
_3_
3-4-85-1617114th
lp. Licensee agrees to indemnify and save harmless Licensor against
alI lass, damage or expense which Licensor may sustain, incur or become liable
for, includir~ lass of or t~iamagP to property or injury to tar death of persons
and fines or penalties imposed upon or assessed against Licensor, arising in
any manner out of (a) the use of the Premises or Lnprovements uy Licensers,
(b) any breach by Licensee of the terms, covenants ar car7ditions in tr,is
instrument contained, or (c) the sole ar cnntrila<Jting acts or omissions of
Licensee or the errq~layes, agents, patrons or invitees of Licensee in, on tar
about the Premises or Improvements, except t41~t if Licensor shall participate
in any suer eontrit~uting acts or omissions, then the loss, damage or expense
ari.sinc~ therefro!~ shall be bottle by the parties hereto erqually; provided,
however, that Licensee hereby assumes the risk of, and agrees to indemnify
Lirensar against liability for, loss of tar ~.iamage to the property of Licensee
or of ethers upon the Premises (°xcept any rolling stock or shipments in the
course of transpnrtatic~n anr~ except any property of Licensor or crtlaers placer!
or kept on the Premises p+.rrsuant to Section 1 hereof) due to fire communicated
frnm lracomotives while being operated ray Licensor upon any tracks wit+iin ar .;.n
the vicinity of the Premises, regardless of Licenser's negligence, if any.
11. ~leit;-~r Licensre, nrar the heirs, legal representatives,
successors ar assigns of Licensee, nor any subsequent assignee, shall transfer
or lease the Premises or. the ~'mprovements, or ~xriy part thereof, nor assign or
transfer this license ar any interest herein, without the written consent and
approval in each instance of Licen~>c~r.
12. Tn case of t"~, eviction of License:: ray anyor~ awnir~ oz: claiming
title to or any interest in the Premises, Licensor shall not be liable to
Licensee for any damage of any nature r~hatsaevrrr, or to refund any
compensation paid hereunder, except the proportionate part of any compensation
paid in advance.
13. If any compensation hereunder sha11 be due and unpaid, err if
default shall be made in any of the covenants or agreements of Licensee: herein
contained, or in case of any assignment or transfer of this license uy
aeration of law, Licensor may, at its option, terminate this license by
serving five (5} days' notice in writing upon Licensee; but any waiver ray
Licensor of any default or defaults shall not constitute a waiver of try right
to terminate this license for any subsequent ~lefaulf, or defaults.
14. This license ma be terminated at an time b either art sJn
thin (3Q) da s' notice in writing to be server.! upon thr? other party, stating
re n t ~° ate t a such termination shall take placs~, ar'rci upon tree
expiration of tree tune specified in such notice this license and all rights of
Licensee hereunder sha11 absolutely cease anci determine; out upon any such
termination Licensor shall retain as a mini5num charge for the usL caf Licer~sar'S
property the sum of $1G1C3.(l0 and any cc~rpensation in excess of
said sum shall be apportivner! taet~aet~n thtr parties, ar~d Licessor caereiay agrees
to refund to Licensee a proportionate part ref any such excess amount paid in
advance.
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3-4-85-1617/14(X.
15. Any notice to be given by Licensor to l..i.censee ;~reurxier shall
be deen~d to tae properly served if the same be delivered to Licensee or if
left with any of the agents, servants ar employes of licensee ar if pasted on
the Premises, or if deposited in the Post Office, postpaid, addressed to
Licensee at 210 E. Chestnut Oanton Illi+xais 61520
16. upon the termination of this license in any manner herein
provided, Licensee shall forthwith surrender to Licensor the possession of tt~
Premises and shall remove the Improvements and restore the Premises to
substantially the state in which thay wexe pri~ar to try construction of ttie
Improvements, and in case Licensee shall fail within thirty (30) days at~n
the date of such tex~nination to make such removal or restoration,
Licensor may, at its election to be exercised within thirty (30) days
thereafter, either remove the Improvements and restore the Premises i'or tl~
account of Licensee, and in such event Licensee shall within thirty (~U) days
after the rendition of bill therefor raimtxarse Licenser for the cyst so
incurred, or may take and hold the Ir~rovements as its sale property.
17. If Licensee fails to surrender to Licenser the Premises, .upon
any termination of this lease, all the liabilities and obli+gatians of Licensee
t~reunder shall continue in effect until tt~ Premises are surrendered; and no
termination hereof shall release Licensee from any liability or obligation
hereunder, whether of indemnity ar otherwise, resulting fro€n any acts,
omissions or events happening prior to the date of termination or the date, if
later, when the Imaarnvements are removed and the Premises restcared or Licensor
elects to take and hold the Improvements as its sole property as hereinaaove
in Section 16 provided.
18. In the event that Licensee consists of two or riore parties, all
the covenants and agreements of Licensee herein contained shall be the paint
and several c~avenants anti agreements of such parties.
19. All the covenants and agreements of licensee herein contained
shall tae binding upon the heirs, legal representatives, successcars and assigns
of Licensee and shall inure to tt~: uenefit of the successors and assigns of
Licensor.
2t1. (a) Notwithstanding any athP.r provisions of this license,
Licensee shall comply with all statutes, ordinances, rules, regulations,
orders and decisions (hereinafter referred to as "Star~iards"), issued by any
federal, state or local governmental body or agency established thereby
(hereinafter referred to as "Authority'), relating to Licensee'5 use of tip:
Premises hereunder. In its use of the Premises, Licensee sha11 at all times
tie in full cor~liance with all Standards, present ar future, set by any
Authority, including, but not limited to, Standards concerning air quality,
water quality, noise, hazardous substances and hazardous waste. in the event
Licensee fails to tae in full compliance with Standards set by any Authority,
Licensor may, after giving reasnnab.le notice of the failure to Licensee, ani9
Licensee, within thirty (30) days of such notice, fails either to correct such
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3-4-t35-1617/140L
non-corr~liance or to dive written notice to the Licensor of its intent to
contest the allegation of non-compliance before the Authority establishing the
Standard or in any other proper forum, take wt~atevor action is necr;ssaxry to
bring the Premises into compliance. Licensee shall reimburse the Licensor for
all casts (including but not limited to, consulting, engineering, cl~:an-upwit~h
disposal costs, and legal costs) incurred by the Licensor in complying
such Standards, and also such casts incurred by the Licensor in abating a
violation of such Standards, protecting against a threatened violation of such
Standards, defending any claim of violation raf such Standards in any
proceeding before any Authority or court, and paying any fines ar penalties
imposed far such violations. Licensee shall assume liaiaility far and s#~11
save and hold harmless the Licensor from any claim of a violation of such
Standards regardless of the nature thr~reaf or the Authority ar person
asserting such claim, which results from Licensee's use of the Premises,
whether such claim arises in whole ar in part from thL ner~ligence ar alleged
negligence of the Licensor or otherwise. Licensee, at its cost, shall assume
the defense of all such claims regardless of w#~ti~rer they are asserted against
Licenses or Licensor.
(b} t.~on written notice from Licensor, Licer~rsee agrees to
assume the defense of any lawsuit, a~ninistrative action or other praceedir~
Brought against Licensor by any put~lic #ao::ty, individual, partr~wrship,
corporation, or other legal entity, relating to any matter covered t-y tr~is
license for which Licensee has an abligati~rn to assume liability for ai-x~lar to
save and hold haxmless the licensor. Licensee shall pay all tt~ costs
incicfpnt to such defense, including, but not limitek~ ta, attarr~Eys' fees,
investigators' fees, litigation expenses, settlement payments, and amounts
paf..d in satisfaction of judgments. Any anr.# all lawsuits ar ac~ninistrative
actions brought or threatened on any theory of relief available at law, iri
equity or under the rules of any administrative agency shall irx? covered by
this Section, including, But not limited to, the theories of intentional
misconduct, negligerx;e, breach of statute or ardinancQ, ar upon any theory
created by statute ar ordinance, state or federal.
IN t~9ITS~SS N+#~E.REOF, this license #7as been duly executed in duplicate
by the parties hereto as of the day and year first above written,
TIC ATC#iISC1N, TtlPEKA A~Jq SR~JTA FF RAILWAY C~#F'ANY
Its Assistant to Generai Manager
ATTEST:
t Cleri
APPROVED AS Tp Fl~cA
General Attorr~y -Kansas
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Its hAayor