Letter from Kansas City Southern Railway to Warren County Board of Supervisors and Vicksburg Bridge Commission:
Published 12:00 am Friday, January 28, 2005
Placing a recreational park within a few feet of the Railroad’s operation not only endangers the public, it also unreasonably interferes with KCSR’s use of its portion of the Bridge by significantly increasing the Railroad’s exposure to liability. Also, by presenting terrorists with another target of huge magnitude, a target that cannot be adequately defended, the conversion of the vehicular portion of the Bridge to a park endangers KCSR’s operation of all of its east/west traffic and increases unnecessarily the hazards to the Railroad’s operation and to its personnel.
Section Ten of the lease states that “[t]he Bridge Company covenants and agrees that it will at all times… during the term of this lease… at its own cost and expense keep in good condition and repair said bridge, its railroad approaches and/or railroad connections therewith… and will keep and maintain the same in safe and proper condition for the operation of such trains of the lessee as by the terms of this agreement the Lessee is permitted to move over the said bridge.”
The provisions of the Lease dealing with allocation of liability is found in Section Fifteen, which reads as follows:
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The Lessee covenants and agrees to protect and save and keep the Bridge Company forever harmless and indemnified against and from any and all loss, cost, damage or expense not caused by any neglgence of the Bridge Company, arising out of or from any accident or other occurrence causing injury to any person or property whomsoever or whatsoever, whether that of the Bridge Company or anyone else, due directly or indirectly to the use of the demised premises by the Lessee or any sublessee or licensee of the Lessee, or any one else holding or claiming or occupying under the Lessee, and from any failure of the Lessee to keep said tracks in good condition and repair or otherwise to comply with the terms and conditions hereof.
The Bridge Company covenants and agrees to protect, save and keep the Lessee forever harmless and indemnified against and from any and all loss, cost, damage and expense, not caused by any neg1gence of the Lessee, arising out of any accident or any other occurrence causing injury to said person or property whomsoever or whatsoever provided such accident or injury is due to any breach or failure on the part of the Bridge Company to carry out any of the covenants of this agreement.
It is our understanding that the Commission has currently employed HNTB to update the 1999 plans for the park, the cost of which will run between $20,000 and $40,000. If the Commission is using the funds entrusted to it for the purpose of maintaining the Bridge, then such expenditure is an inappropriate use of the Commission’s funds. Furthermore, the Commission cannot use its funds to develop the park. The 1926 Act of Congress that authorized the construction and operation of the Bridge specifically provided that once the costs and an adequate return were recouped over a period long ago expired, the Bridge would then “be maintained and operated free of tolls or the rates of toll [would] be so adjusted as to provide a fund not to exceed the amount necessary for the proper care, repair, maintenance, and operation” of the Bridge and its approaches. The creation and construction of the park does not fall within the purpose for which the funds held by the Commission can be used. Furthermore, the Commission is prohibited from collecting rental payments or charging rental rates is excess of the amount necessary “for the proper care, repair, maintenance, and operation” of the Bridge.
KCSR strongly feels that the County and the Commission would be negligent in creating a parklike setting to entice individuals to a site within feet of the commercial operations of the Railroad and urge you to consider the possible consequences of a park at that location. It is the position of the Railroad that, if the County and the Commission attempt to convert the vehicular portion of its Bridge to a park, it (i) will have breached certain provisions of the Lease, (ii) will have created a hazardous condition on the Bridge (iii) will have unreasonably interfered with the Railroad’s use of the Bridge and (iv) will have substantially modified the purpose of the Bridge, all without seeking the approval of the Rairoad. If the Commission persists in going forward with developing plans to modify the use of the Bridge, the Railroad will seek whatever legal and equitable remedies it has available.
By copy of this letter, we are notifying the Federal Railroad Administration, which has jurisdiction over rail safety concerns, and the Office of Homeland Security, which has been entrusted with protecting the residents of the United States from terrorist attacks. Should you like to discuss these issues with the Railroad, it would welcome the opportunity to do so; however the idea of a recreational park on the Bridge is not acceptable. KCSR looks forward to working with the City and the County on numerous other productive efforts to promote tourism and economic development in your community.
Very truly yours,
Betty Toon Collins
cc: Federal Railroad Administration
Office of Homeland Security
Randy Sherard, Esq.
Robert R. Bailess, Esq.