CM-2019-0016 - 1/18/2019AMENDED AND RESTATED
DONATION AND INDEMNITY AGREEMENT
THIS AMENDED AND RESTATED D0a,4TION AND INDEMNITY AGREEMENT (this
"Ageement") is made and entered into as of the may of January, 2019 (the "Effective Date"), by and
between GATX CORPORATION, a New York corporation ("Donor"), and CITY OF ROUND ROCK
("Donee"). Each of Donor and Donee may be individually referred to herein as a "Party" and collectively
as the "Parties".
WHEREAS, Donor and Donee are parties to that certain Donation and Indemnity Agreement,
dated September 21, 2018 (the "Prior Donation Agreement") whereby Donor agreed to donate two (2)
railcars to Donee;
WHEREAS, the parties wish to correct the listed railcars to reflect the actual car marks of the
railcars Donor agrees to donate to Donee;
WHEREAS, Donor and Donee are willing to amend and restate the Prior Donation Agreement as
of the Effective Date;
WHEREAS, Donor owns two (2) railcars bearing the marks GATX071633 and GATX034384 (the
"Cars") which are no longer of use to Donor; and
WHEREAS, Donee desires to use the Cars for training purposes and has asked Donor to donate the
Cars to Donee for such purpose.
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
1. Donor hereby conveys, assigns and transfers all of its right, title and interest in and to the Cars to
Donee. Donor warrants that the Cars transferred hereunder shall be free of all liens and
encumbrances, but otherwise the Cars are transferred "AS IS, WHERE IS" AND DONOR SHALL
NOT BE DEEMED TO HAVE MADE AND DISCLAIMS ANY REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, NOW OR HEREAFTER, AS TO THE CONDITION,
DESIGN, OPERATION, MAINTENANCE, VALUE, MARKETABILITY, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE CARS AND ANY IMPLIED
WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF THE
TRADE. DONOR DISCLAIMS ANY LIABILITY TO DONEE WITH RESPECT TO THE
CONDITION OF ANY CAR, INCLUDING, BUT NOT LIMITED TO, ANY LIABILITY IN TORT
OR ARISING FROM NEGLIGENCE, STRICT LIABILITY OR FOR LOSS OR INTERRUPTION
OF USE, PROFIT OR BUSINESS OR OTHER CONSEQUENTIAL INJURY, AND DONEE
WAIVES, RELEASES, RENOUNCES AND DISCLAIMS EXPECTATION OF OR RELIANCE
UPON ANY SUCH WARRANTY OR WARRANTIES. IN NO EVENT SHALL DONOR BE
LIABLE TO DONEE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE, BOTH ORDINARY AND GROSS), STRICT LIABILITY OR
OTHERWISE.
2. Donee shall bear all responsibility for transporting the Cars from their current location at Donee's
sole risk, cost and expense. To the extent that any of Donor's current road markings or any other
6"2011-td(o
reference to GATX Corporation or any of its affiliates is on the Cars, Donee shall remove all such
markings and references from the Cars as soon as possible.
3. Donee hereby agrees (a) to only use the Cars for training purposes only and to never operate them in
interchange, and (b) to indemnify and hold harmless Donor, its employees and agents from and
against any and all claims, liabilities, losses, damage, suits, expenses or claims, including for bodily
injury, death and property damage, arising out of or relating to the donation, use or possession of the
Cars, including any acts or omissions of Donor, its agents or employees with respect to such Cars.
4. Donee agrees that the Cars shall only be used on or over the property owned by Donee and that
Donee shall not sell or transfer the Cars to any party except for purposes of scrapping the Cars.
5. This Agreement shall be governed by the laws of the State of Illinois except for its conflicts of laws
principles.
6. All representations, warranties, indemnities, covenants and agreements in this Agreement shall
survive the donation and transfer of the Cars under this Agreement. Any term, condition or provision
of this Agreement which is, or is deemed to be, void, prohibited, or unenforceable in any jurisdiction
is, as to such jurisdiction, severable here from, is ineffective to the extent of such avoidance,
prohibition and unenforceability without in any way invalidating the remaining terms, conditions and
provisions hereof and any such avoidance, prohibition or unenforceability in any jurisdiction does not
invalidate or render unenforceable such term, condition or provision in any other jurisdiction. This
Agreement contains the entire agreement and understanding between the Parties hereto with respect
to the subject matter contained herein and supersedes all prior agreements, understandings and
representations, oral or written. The provisions of this Agreement shall not be modified, waived, or
amended except by written agreement executed by each of the parties hereto. No failure or delay by
either Party in enforcing this Agreement shall constitute a waiver of its rights hereunder. This
Agreement may not be assigned by Donee without the prior written consent of Donor, but shall
otherwise be binding upon and inure to the benefit of each of the Parties and their respective
successors and assigns.
7. This Agreement may be executed in several counterparts and via facsimile (or other form of
electronic transaction, including email), all of which taken together shall constitute one single
agreement between the Parties hereto.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed by
their duly authorized representatives as of the date first above set forth.
Donor:
GATX CORPORATION
By:
T n K G k 6 AII
Title: &,- e, Jot)-.,o"Si-rah-B4
Donee:
CITY OF ROUND ROCK
By 13AMW
Name: k->i1I mss'
Title: , ci,�
Y ' �J
City of Round Rock
r..
RoeNORocK Agenda Item Summary
Agenda Number:
Title: Amended Donation Indemnity Agreement - Donated Railcars to RR Fire, for
training purposes. Dated September 21, 2018
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 1/18/2019
Dept Director: Robert Isbell
Cost:
Indexes:
Attachments: CMAF RR.PDF, AR Donation Agreement - Execution.pdf
Department: Fire Department
Text of Legislative File CM -2019-0016
This agreement update is due to the railcars to be donated changing during the process to
different cars at the request of the doper. The doner is wanting a new agreement to reflect the
new railcar numbers. These rallcars will be used as a permanent training prop at the Public
Safety Training Center.
Clly o/Round Rack Page 1 Pjfnfed an 1/17/2019