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| <p><strong>KEOKUK JUNCTION RAILWAY CO.</strong></p> |
| <p>1318 S. JOHANSON ROAD</p> |
| <p>PEORIA, ILLINOIS 61607</p> |
| <p>(309) 697-1400</p> |
| <p>June 3, 2005</p> |
| <p>Melvin F. Clemens, Jr.,</p> |
| <p>Director, Office of Compliance and Enforcement</p> |
| <p>Surface Transportation Board</p> |
| <p>1925 K Street, N.W.</p> |
| <p>Washington, D.C. 20423</p> |
| <p>RE: Docket No. FD 34335 – <em>Keokuk Junction Railway Co. – Feeder Railroad Development Application – Line of Toledo, Peoria & Western Railway Corporation between LaHarpe and Hollis, Illinois.</em> </p> |
| <p>Dear Director Clemens:</p> |
| <p>On May 17, 2005 Toledo, Peoria & Western Railway Corporation (“TP&W”) sent you a letter requesting mediation of certain alleged issues surrounding the trackage rights agreement covering TP&W’s operations to and from the Mapleton Industrial Spur. At this time, Keokuk Junction Railway Co. (“KJRY”) does not believe mediation is required. Furthermore, there are several statements in TP&W’s May 17 letter that require clarification, or are simply incorrect. </p> |
| <p>I would like to first clarify the statement that “KJRY has not returned an executed copy of the agreement.” The fact is that TP&W executed and faxed the Board-approved agreement to KJRY under protest and only after the closing of the transaction. Despite the fact that TP&W failed to meet the Board’s requirement of negotiating in good faith and accepting the agreement prior to closing, KJRY nonetheless honored the agreement and continues to do so today. Frankly, KJRY expected to receive the “hard copies” of the signed agreement for KJRY’s execution rather than facsimile versions of the signature pages and requested more than once that original documents be sent. At one point TP&W implied that it had sent those copies, but then stated they did not intend to send the hard copies because they viewed the agreement as an “interim” agreement. Now, having failed to send “hard copies” to KJRY, it wants to criticize KJRY for not returning executed copies to it. KJRY stands willing and able to send an executed copy to TP&W as soon as TP&W sends its original “hard copies” of the agreement to KJRY. Of course TP&W won’t do so because it wants to better the Board-approved agreement with unilateral concessions from KJRY, before doing so.. To criticize KJRY for not executing the agreement when TP&W has refused to do so itself is absurd. Nonetheless, KJRY has been and will continue to operate as if the agreement is in full force and effect.</p> |
| <p>As with its refusal to comply with the Board’s order to either accept or reject the approved trackage rights agreement, TP&W has also failed to comply with the Board’s order to forward documents to KJRY within 90 days. In fact, although TP&W has repeatedly told KJRY they have agreed on the language of an assignment agreement and had only to “find whose desk the agreement is on,” to date, KJRY has not received the assignment agreement. Nor has KJRY received any of the contracts to be assigned, valuation maps, or other documents that the Board ordered TP&W to produce. TP&W has not responded to KJRY’s requests for revisions in the proposed deeds, and, has refused to discuss the various real estate issues. Thus, it is TP&W that is being uncooperative, not KJRY, and it is TP&W that is in blatant violation of the Board’s order, not KJRY. </p> |
| <p>Indeed, KJRY has sent more than one list of closing issues to be resolved, and has left numerous voice mail and e-mail messages with TP&W attorneys asking for a time at which the parties could discuss those issues. TP&W has yet to even offer a time .</p> |
| <p>KJRY went so far as to attempt to use the Seventh Circuit mediation attorney (who was discussing the TP&W’s pending appeal of the Board’s decision) to initiate a discussion of the outstanding issues. TP&W again refused to enter into any discussions, apparently deliberately waiting so that TP&W could later write to you and claim intransigence. If TP&W were truly interested in resolving these issues, they would have responded to the numerous e-mails, phone calls, and attempts by KJRY to initiate discussions. The fact that TP&W did none of those things is telling.</p> |
| <p>Meanwhile, KJRY continues to honor the trackage rights agreement. Traffic is moving, without any significant problems. Operating personnel have a good working relationship, and customers are being served. KJRY and TP&W have even concluded an interchange agreement. </p> |
| <p>KJRY is not opposed to ultimately mediating outstanding issues, but it is unwilling to do so until such time as TP&W complies with the Board’s order to turn over documents related to the Line, which TP&W is now almost four weeks delinquent in doing, and send KJRY a “hard copy” of the executed trackage rights agreement. Until these basic Board-ordered actions are undertaken, KJRY believes that any meaningful mediation must wait. Finally, for there to be any true mediation, such a process must encompass all outstanding issues, not just the trackage rights agreement.</p> |
| <p>Sincerely yours,</p> |
| <p>Daniel A. LaKemper,</p> |
| <p>General Counsel.</p> |
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