HomeMy WebLinkAboutResolution - 2001-R0210 - Industry Track Agreement - Burlington Northern - 06/14/2001Resolution No. 2001-RO210
June 14, 2001
Item No. 36
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to
execute for and on behalf of the City of Lubbock a Industry Track Agreement between the City
of Lubbock and the Burlington Northern and Santa Fe Railway Company, and any other related
documents. Said Agreement is attached hereto and incorporated in this Resolution as if fully set
forth herein and shall be included in the minutes of the Council.
Passed by the City Council this 14th day of June 2001.
67W
- -----
WINDY SITTON AYOR
ATTEST:
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
Ed Bucy
Right -of -Way Agent
APPROVED AS TO FORM:
Linda L. Chamales
Supervising Attorney — Office Practice
LLC:cp Ccdocs/BurlingtonNorther-Indust yTrackAgr.Res
June 5, 2001
Resolution No. 2001-RO210
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
INDUSTRY TRACK AGREEMENT R tris 00",- ; ,;ACT
THIS AGREEMENT ("Agreement") made as of this 13th day of June, 2001, (hereinafter "Effective Date") by and
between THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation,
hereinafter called "Railroad", and CITY OF LUBBOCK, a(n) Texas municipal corporation, hereinafter called
"Industry".
WHEREAS, Industry 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)
operate over certain additional track shown as heavy hatched on Exhibit "A" ("Industry Track"), (Railroad Track and
Industry Track collectively, together with all appurtenances, called "Track"), located at Lubbock, Lubbock County,
Texas, 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
Railroad shall own the Railroad Track and Industry shall own the Industry Track.
MAINTENANCE OF TRACK
2. (a) Maintenance for the purpose of this Agreement includes, but is not limited to, responsibility for providing
proper drainage along the relevant portion of the Track and for keeping the Track free and clear of snow,
ice, vegetation, structures, and other obstacles. Maintenance also includes, but is not limited to,
responsibility for the maintenance of grade crossing warning devices, stop signs, gates, fences or barriers,
roadway construction, track drainage facilities, lighting, track signals and signal maintenance.
(b) Railroad shall, for the accommodation of and at the sole risk and expense of Industry, maintain the
Railroad Track.
(c) Industry shall at all times, and at its sole risk and expense, maintain, or cause to be maintained, the
Industry 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 Industry Track whenever Railroad, in its sole
discretion, determines that the Industry 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 Industry Track.
(d) Railroad's operation over the Track with knowledge of an unsatisfactory condition is not a waiver of
Industry's obligations contained herein or of Railroad's right to recover for or be indemnified and defended
against such damages to property, and injury to or death of persons that may result therefrom.
TERM
3. Unless earlier terminated as provided in Section 14, this Agreement shall be in force for the term of ONE
MONTH from its date and shall automatically continue thereafter until terminated by either party giving to
the other thirty (30) days written notice of its desire to terminate the same.
ID/IT— Maintenance and Operation of Industry Track Page 1
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").
OPERATION OF TRACK
5. (a) Industry shall, at its sole expense, pay all costs for changes, repairs or alterations to the Industry 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 Industry Track, if such change of grade or relocation is required to comply
with any Legal Requirement or is made for any other reason beyond Railroad's reasonable control.
(b) In the event the Track is used for receiving, forwarding, or storing hazardous materials as defined by any
federal, state, or local environmental law or regulation, Industry agrees to comply with all applicable Legal
Requirements and with Railroad's further requirements concerning the same.
(c) In the event Industry desires to install any gates or fencing across the Track, or to install a track scale,
unloading pit, loading or unloading device, adjustable loading dock, warehouse door, or any other structure
within Minimal Clearances as defined below (collectively, "Facilities"), Industry shall first submit in writing to
Railroad the plans and specifications for such Facilities, and secure written approval from Railroad, which
may be withheld in Railroad's sole discretion, before construction of any Facilities is undertaken by
Industry.
(d) Railroad may require for safety purposes that Industry, at its sole cost and expense, provide flagmen,
lights, traffic control devices, automatic warning devices, or any such safety measure that Railroad deems
appropriate in connection with the Industry's use of the Track. Industry shall reimburse Railroad within
thirty (30) days of receipt of bill rendered therefor for all costs expended by Railroad, including but not
limited to the cost of Railroad's Flagman ($500.00 per eight hour day, $95.00 per hour thereafter) in
connection with this Section.
(e) Industry shall construct, install, use, maintain, and repair all Facilities at its sole risk and expense, in a
manner and of materials satisfactory to Railroad. Industry, during the installation, construction, use,
operation, renewal, relocation, modification, maintenance and repair of these Facilities, shall exercise
utmost and extraordinary diligence to prevent damage to the property of Railroad or injury to its agents,
employees, invitees and contractors. The presence of any Facilities must never be a source of danger to
or interfere with the safe operations of Railroad over the Track.
In furtherance of the foregoing obligation of Industry but not in limitation of the same, Industry shall do,
among others, the following things:
Industry shall keep any gates across the Track open whenever necessary, in Railroad's sole judgment, to
enable Railroad to safely and efficiently operate over the Track. Industry shall keep unloading pits securely
covered when not in actual use and at all times when the Track is being switched by Railroad. Industry
must keep all doors firmly secured, and adjustable loading docks at warehouses shall likewise be securely
fastened in an upright position when not in actual use and at all times when the Track is being switched by
Railroad. Industry shall operate and maintain all other Facilities so as not to negatively affect the safe and
efficient operation of Railroad over Track.
(d) 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
ID/IT- Maintenance and Operation of Industry Track Page 2
and/or relocation of the Track and shall reimburse Railroad all expenses in connection with 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 (1.2%), 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 Railroad in its sole discretion deems appropriate, provided Railroad uses
all commercially reasonable efforts to avoid material interference with the use of said Track as described
herein.
CLEARANCES
8. (a) Industry 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,
public authority, corporation, or person for the privilege of maintaining and operating the Track, and shall
not cause or permit any liens to be filed against the Railroad Track or any Railroad property. In the event
any such liens are filed, Industry shall cause such liens to be released within fifteen (15) days.
ID/IT— Maintenance and Operation of Industry Track Page 3
LIABILITY
10. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, INDUSTRY SHALL AND SHALL CAUSE ITS
CONTRACTOR TO RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS 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, REASONABLE ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE
(COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION OF ANY PERSON
OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM OR RELATED TO
(IN WHOLE OR IN PART):
(i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE,
(iii) INDUSTRY'S OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED
BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN PART, BY INDUSTRY, OR
(v) 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 GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, NOTWITHSTANDING THE LIMITATION IN SECTION 14(A), INDUSTRY SHALL AND
SHALL CAUSE ITS CONTRACTOR TO NOW AND FOREVER WAIVE ANY AND ALL CLAIMS,
REGARDLESS WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE,
THAT RAILROAD IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" OF THE
PREMISES FOR 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 THE INDEMNITEES. INDUSTRY FURTHER
AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED BY THIS LEASE SHALL NOT
IN ANY WAY SUBJECT RAILROAD TO CLAIMS THAT RAILROAD IS OTHER THAN A COMMON
CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO
INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH
CLAIMS. IN NO EVENT SHALL RAILROAD BE RESPONSIBLE FOR THE ENVirRONIVIENTAL
CONDITION OF THE PREMISES.
(c) INDUSTRY FURTHER AGREES, AND SHALL CAUSE ITS CONTRACTOR TO AGREE
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
1D/!T- Maintenance and Operation of Industry Track Page 4
RELATED TO THE FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES
OF INDUSTRY OR ANY OF ITS AGENTS, INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT
THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO
EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT
NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION ACT, THE
OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
(d) Upon written notice from Railroad, Industry agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any entity, relating to any matter covered by this Lease
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 expenses, settlement payments, and amounts paid in satisfaction of
judgments.
(e) Notwithstanding the foregoing, Licensee, as a governmental entity of the State of Texas, may be
subject to certain governmental limitations or immunities laws and nothing herein shall be construed to
waive any such rights.
INSURANCE
11. (a) Industry shall, at its expense, procure and maintain throughout the term of this Agreement, and thereafter
until any Industry -owned improvements are removed from the Property, a comprehensive general form of
insurance covering liability, including, but not limited to, Public Liability, Personal Injury and Property
Damage, as well as Contractual Liability in the amount of $1,000,000 per occurrence and $2,000,000 in
the aggregate. Such insurance shall contain no exclusion with respect to property of Railroad in the care,
custody or control of Industry. Industry also shall, at its expense, procure and maintain throughout the term
of this Agreement, an automobile liability policy with limits of $1,000,000 covering "any auto". RAILROAD
SHALL BE NAMED AS AN ADDITIONAL INSURED PARTY COVERED BY THE POLICY.
(b) All risk insurance on the property of the Industry, or in Industry's care, custody and control, shall contain a
waiver of subrogation of claims against Railroad. Industry shall maintain Workers Compensation insurance
which shall contain a waiver of subrogation against Railroad.
(c) All insurance shall be placed with insurance companies licensed to do business in the state in which the
Property is located, with a current Best's Insurance Guide Rating of A- and Class X, or better. Industry
shall provide, and thereafter maintain in effect, a current Certificate of Insurance evidencing such
insurance and said Certificate shall reference this contract number. Insurance must provide for coverage
of incidents occurring within fifty (50) feet of a railroad track, and any provision in the insurance policy to
the contrary must be specifically deleted. Each policy shall provide that it shall not be canceled or
materially changed unless at least thirty (30) days' prior written notice of cancellation or change shall have
been mailed by the insurance company to Railroad at the address designated herein.
(d) The furnishing of insurance required by this section shall in no way limit or diminish the liability or
responsibility of Industry as provided under any section of this Agreement.
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
ID/1T- Maintenance and Operation of Industry Track Page 5
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 Resource Operations Center at (800) 832-5452
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 ul
which create a risk of harm to persons, property or the environment and shall i
necessary to prevent injury to persons or property arising out of such conditions
however, that Industry's reporting to Railroad shall not relieve Industry of any
imposed on it by this Agreement. Industry shall promptly respond to Railroad's
regarding said conditions or activities.
DEFAULT
)on the Plant or Track
ake whatever action is
or activities; provided,
obligation whatsoever
request for information
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 five (5) days' notice in writing upon Industry.
(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)
months in any period of twelve (12) months, Railroad may, at its option, expressed in writing,
terminate this Agreement, effective immediately.
(ii) If Railroad is authorized by competent public authority to abandon its line to which said 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, Railroad may terminate this Agreement effective immediately by written notice to Industry.
ID/1T- Maintenance and Operation of Industry Track Page 6
(b) Upon the expiration or earlier termination of this Agreement as provided herein, Railroad at its sole
discretion shall have the right to:
(i) require Industry to transfer title to that portion of the Industry Track located upon Railroad's right-of-
way, and any Facilities or improvements located upon, over, or under said right-of-way to Railroad.
Upon such transfer, Railroad shall pay Industry the salvage value of said portion of Industry Track
located upon Railroad's right-of-way;
(ii) require Industry to remove, at its sole cost and expense, that portion of the Industry Track located
upon Railroad's right-of-way and any Facilities or improvements upon, over, or under said right-of-
way 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 Railroad elects option (ii) and Industry fails within thirty (30)
days after the date of such termination to make such removal and restoration, then Railroad may
remove that portion of the Industry Track located upon Railroad's right-of-way and any Facilities or
improvements located upon, over, or under said right-of-way 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.
(c) Industry hereby agrees to waive and release all claims, rights, and causes of action that Industry has, may
have, or may assert against Railroad because of the discontinuance of operation and removal of the
Railroad Track as provided in this Section 14 of this Agreement.
JOINT USE BY OTHER RAILROADS
15. This Agreement is also made for the benefit of such other railroads which, either by agreement with
Railroad or order of competent public authority have the right to use the Track, all of which railroads shall
be deemed "Railroad" under this Agreement.
ASSIGNMENT
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 to be given by either party shall be deemed to be properly served if deposited with the United
States Postal Service, or other acceptable mailing service, postage prepaid, addressed to either party, at
the addresses and department shown beneath signature of the parties.
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, provided Railroad does not elect option 14(b)(i), the date
when the Track, Facilities, and improvements are removed and the riaht-of-way is restored to its conU;, ter,
as of the Effective Date.
RECORDATION
19. It is understood and agreed that this Agreement shall not be placed of public record, except to the extent
required by the Texas Public Information Act.
ID/1T— Maintenance and Operation of Industry Track Page 7
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 Texas.
SEVERABILITY
21. To the maximum extent possible, each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by,
or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such
prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision
of this Agreement.
INTEGRATION
22. This Agreement is the full and complete agreement between Railroad and Industry with respect to all
matters relating to the maintenance and operation of the Track and supersedes all other agreements
between the parties hereto relating to the maintenance and operation of the Track.
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.
24. The waiver by Railroad of the breach of any provision herein by Industry shall in no way impair the right of
Railroad to enforce that provision for any subsequent breach thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in duplicate the day and
year first herein above written.
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
c/o Staubach Global Services
5650 N. Riverside Dr., Ste. 101
Fort Worth, Texas 76137-2464
M. E. Devine
Director Economic Development
CITY OF LUBBOCK
5401 N. Martin Luther King Blvd.
Lubbock, Texas 79401
Title:
ID/IT- Maintenance and Operation of Industry Track Page 8
ATTEST:
a�. -. -er.� ���
Rebecca Garza, City Secretary
APPROVED AS TO CONTENT:
David Jones, D uty-Planning & Development
Lubbock International Airport
APPROVED AS TO FORM:
Linda L. Chamales, Supervising Attorney
9
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