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PIPELINE CROSSING AGREEMENT , ~ , . , '.. ~ t ~T Form 2037-Sheet 1 Z; 1987 RE-86468 4JW0720871 26 PIPELINE CROSSING AGREEMENT THIS AGREEMENT, Made as of the 20th day of July, 1987, by and between CSX TRANSPORTATION, INC., a Virginia corporation, whosemailingaddress.is 500 Water Street, Jacksonville, Florida 32202, hereinafter called "Licensor" and CITY OF CLEARWATER, a municipal corporation under the laws of the State of Florida, whose mailing address is 10 Missouri Avenue South, Clearwater, Florida 33516, hereinafter called "Licensee", WITNESSETH: WHEREAS, Licensee desires to construct and maintain a certain pipeline or duct work, for the transmission of storm water only, hereinafter called "Pipeline" under or across the track(s) and property owned or controlled by Licensor at or near CLEARWATER, County of PINELLAS, State of FLORIDA, at a point 1592 feet southwardly measured along the center line of Licensor's main track(s) from Licensor's Milepost SY-875 (Station No. --), hereinafter called the "Crossing"; as shown in green on print of Licensee's Drawing attached hereto and made a part hereof; other details and data pertaining to said Pipeline being as indicated on Licensee's Application Form, dated December 4, 1986, also attached hereto and made a part hereof: NOW, THEREFORE, in consideration of the mutual covenants, conditions, terms and agreements herein contained, the parties hereto agree and covenant as follows: 1. LICENSE: 1.1 Licensor, insofar as it has the legal right, power and authority to do so, and subject to: (A) Licensor's present and future right to occupy, possess and use its property within the area of the Crossing for any and all purposes; (B) All encumbrances, conditions, covenants, easements, and limitations applicable to Licensor's title to or rights in the subject property; and (C) Compliance by Licensee with the terms and conditions herein contained; does hereby license and permit Licensee to construct, maintain, repair, renew, operate, use, alter or change said Pipeline at the Crossing above for the term herein stated, and to remove same upon termination. 1.2 The term Pipeline, as used herein, includes pipes, ducts, casing, vents, manholes, connectors, fixtures, appliances and ancillary facilities devoted exclusively to the transmission usage above. 2. LICENSE FEE, TERM: 2.1 Upon execution of this Agreement, Licensee shall pay Licensor the sum of THREE HUNDRED AND NO/100 U.S. DOLLARS ($300.00) toward the cost of preparing and processing this Agreement. C? .i)<,/) II ,..t'-"i'i '<','! ,~ ., I ' ,_ . ~Form 2037-Sheet 2 ~-1987 2.2 Licensee shall also pay to Licensor the following (Licensee shall check and initial one): [] (A) An annual license fee of EIGHTY-FOUR AND NO/100 U.S. DOLLARS ($84.00), payable annually in advance. Such fee shall be subject to periodic review and adjustment by Licensor. Payment by Licensee of any annual license fee shall not be held to create an irrevocable license for any period beyond said one (1) year term. This license shall remain in effect from year to year, subject to the right of either party hereto to terminate at the end of anyone (1) year term by written notice given to the other party at least thirty (30) days prior to the end of such term. [] (B) A five (5) year initial lieense fee of FOUR HUNDRED TWENTY AND NO/100 U.S. DOLLARS ($420.00). In the event of termination of this license prior to the expiration of five (5) years, a prorated refund shall be paid to Licensee, unless said termination is due to cause of or default of Licensee - in which event, no refund is payable. Any further term or renewal must be renegotiated. Licensee shall be revocable during term only in event of breach or default by Licensee. [ xl (C) A one-time license fee of ONE THOUSAND TWO HUNDRED SIXTY AND NO/IOO U.S. DOLLARS ($1,260.00). License shall be revocable only in the event of Licensee's default. License shall end upon Licensee's cessation of use for the purpose(s) above. 2.3 In any term, Licensee shall indemnify Licensor against and shall pay directly or reimburse Licensor for any additional taxes and/or assessments levied against Licensor or Licensor's property on account of Pipeline or Crossing. 3. CONSTRUCTION AND MAINTENANCE: 3.1 Licensee, at its sole cost and expense, shall construct, maintain, relocate, repair, renew, alter, and/or remove said Pipeline, in a prudent, workmanlike manner, using quality materials and complying with any applicable standard(s) or regu1ation(s) of Licensor (Exhibit "A") , Licensee's particular industry, A.R.E.A. Specifications, or any governmental body having jurisdiction over the Crossing. 3.2 Location and construction of Pipeline shall be made strictly in accordance with design(s) and specifications furnished to and approved by Licensor. 3.3 All Licensee's work and execution of rights hereunder shall be undertaken so as to eliminate or minimize any impact on Licensor's track(s) and appurtenances thereto. , aT Form 2037-Sheet 3 Mr; 1987 4. PERMITS, LICENSES: 4.1 Before any work hereunder is performed, or before use by Licensee of the Crossing for the contracted purpose, Licensee, at its sole cost and expense, shall obtain all necessary permits or licenses from any federal, state or local public authorities having jurisdiction over the Crossing or its intended use, and shall thereafter observe and comply with the requirements of such public authorities, and all applicable laws and regulations and future modifications hereof. 4.2 Licensee shall also defend, protect and hold Licensor harmless for failure to obtain such permits or licenses, any violations thereof, or for costs or expenses of compliance or remedy. 5. REPAIRS, COSTS: 5.1 Any repairs or maintenance to Pipeline which are necessary to protect or facilitate Licensor's use of its property shall be made by Licensee promptly, but in no event later than ten (10) days after Licensee has notice as to the need for such repairs or maintenance. 5.2 Licensee hereby agrees to reimburse Licensor any loss, cost or expense incurred by Licensor as a result of Licensee's Pipeline being in need of repairs or maintenance (including losses resulting from train delays and inability to meet train schedules), whether or not said repairs or maintenance result from acts of Licensee, natural or weather events or otherwise. 6. MARKING AND SUPPORT: 6.1 With respect to any subsurface installation upon Licensor's property, Licensee, at its sole cost and expense, shall: (A) Erect, maintain and periodically verify the accuracy of aboveground markers, in a form approved by Licensor, indicating the location, depth and ownership of Pipeline or other facilities; (B) Support track and roadbed of Licensor, in a manner satisfactory to Licensor. 6.2 After construction of Pipeline, Licensee shall restore said track(s), roadbed and other disturbed property of Licensor, and shall leave same in a condition satisfactory to Licensor. Licensee shall backfill with satisfactory material and thoroughly tamp all trenches to prevent settling of surface of land and roadbed of Licensor, and shall either remove any surplus earth or material from Licensor's property or cause said surplus earth or material to be placed and distributed at location(s) and in such manner as Licensor may direct. , ~T Form 2037-Sheet 4 Z; 1987 7. TRACK CHANGES: 7.1 In the event that Licensor's ongoing operating needs and/or maintenance result in the future raising or lowering of Licensor's tracks, or in the event future use by Licensor of right-of-way and property (including any relocation of changes in or additions to Licensor's track(s) or other facilities) necessitate any change of location, height or depth of Pipeline or Crossing, Licensee, at its sole cost and expense and within twenty (20) days after notice in writing from Licensor, shall make changes in Pipeline or Crossing to accommodate Licensor's tracks or operations. Any additional costs or expenses incurred by Licensor to accommodate the use of Licensor's property by Licensee shall also be paid by Licensee. 7.2 Licensee agrees to periodically monitor and verify the depth or height of Pipeline and Crossing in relation to Licensor's tracks and facilities, and to relocate Pipeline or change Crossing, at Licensee's expense, should such relocation or change be necessary to comply with the minimum clearance requirements of this Agreement. 8. PIPE CHANGES: 8.1 If Licensee undertakes to revise, renew, relocate or change in any manner whatsoever all or any part of Pipeline (including any change in circumference, diameter or radius of pipe or change in materials transmitted in and through said pipe), plans therefor shall be submitted to Licensor for approval before any such change is made. After approval the terms and conditions of this Agreement shall apply thereto. 9. INTERFERENCE WITH RAIL FACILITIES: 9.1 If the operation, existence or maintenance of said Pipeline, at any time in the judgment of Licensor, causes: (a) interference with Licensor's communication, signal or other wires, train control system, or facilities; or (b) interference in any manner with the operation, maintenance or use by Licensor of its right-of-way, track(s), structures, pole lines, devices, other property, or any appurtenances thereto; then and in either event, Licensee, upon receipt of written notice from Licensor of any such interference, and at Licensee's sole risk, cost and expense, shall promptly make such changes in its Pipeline as may be required in the judgment of Licensor to eliminate all such interference. 9.2 Without assuming any duty hereunder to inspect Licensee's Pipeline, Licensor hereby reserves the right to inspect same and to require Licensee to undertake repairs, maintenance or adjustments to Pipeline, which repairs, maintenance or adjustments Licensee hereby agrees to make promptly, at Licensee's sole cost and expense. 10. LIABILITY, INDEMNITY: With respect to the liabilities of the parties, it is hereby agreed that: 10.1 indemnify, liability, Licensee hereby assumes, and shall at all times hereafter release, defend and save Licensor harmless from and against any and all loss, claim, suit, damage, charge or expense which Licensor may " ' , ~T Form 2037-Sheet 5 ~ 1987 suffer, sustain, incur or in any way be subjected to, on account of death of or injury to any person whomsoever (including officers, agents, employees or invitees of Licensor), and for damage to or loss of or destruction of any property whatsoever, arising out of, resulting from, or in any way connected with the presence, existence, operations or use of Pipeline or any structure in connection therewith, or restoration of premises of Licensor to good order or condition after removal, EXCEPT when caused solely by the fault, failure or negligence of Licensor. However, during any period of actual construction, repair, maintenance, replacement or removal of the Pipeline when equipment, agents or personnel of Licensee are on the railroad right-of-way, Licensee's liability hereunder shall be absolute, irrespective of any sole fault, failure or negligence of Licensor. 10.2 Use of Licensor's property involves certain risks of loss or damage as a result of Licensor's rail operations. Notwithstanding Section 10.1, Licensee hereby assumes all risk of loss and damage to Licensee's property which may result from fire or derailment resulting from Licensor's rail operations, and Licensee hereby agrees to defend, protect, save harmless and indemnify Licensor from all claims of third parties for any loss of or damage to property of said third parties situated or placed upon Licensor's property by Licensee or by such third parties, resulting from fire or derailment. 10.3 Notwithstanding Section 10.1, Licensee also expressly assumes all risk of loss which in any way may result from Licensee's failure to maintain either the required clearances for any overhead Pipeline or the required depth and encasement for any underground Pipeline, whether or not such 10ss(es) resu1t(s) in whole or part from Licensor's contributory negligence or joint fault. 10.4 All obligations of Licensee hereunder to release, indemnify and hold Licensor harmless shall also extend to officers, agents and employees of Licensor, and to companies and other legal entities that control or are controlled by or subsidiaries of or are affiliated with Licensor, and their respective officers, agents and employees. 11. INSURANCE: 11.1 Prior to commencement of surveys, installation or occupation of Premises pursuant to this Agreement, Licensee shall procure and shall maintain during the continuance of this Agreement, at its sole cost and expense, a policy of Public Liability Insurance or Commercial Liability Insurance, naming Licensee as insured and covering liability assumed by Licensee under this Agreement. A coverage limit of not less than THREE MILLION DOLLARS ($3,000,000) Combined Single Limit per occurrence for bodily injury liability and property damage liability is recommended as a prudent limit to protect Licensee's assumed obligations. If said policy does not automatically cover Licensee's contractual liability during periods of survey, installation, maintenance and continued occupation, a specific endorsement adding such coverage shall be purchased by Licensee. 11.2 If said policy is written on a "claims made" basis instead of an "occurrence" basis, Licensee shall arrange for adequate time for reporting losses. Failure to do so shall be at Licensee's sole risk. , ~T Form 2037-Sheet 6 Mr; 1987 11.3 Licensor may at any time request evidence of insurance purchased by Licensee to comply with this requirement, and may demand that Licensee purchase insurance deemed adequate by Licensor. Failure of Licensee to comply with Licensor's demand shall be considered a default, subject to Article 19. 11.4 Securing by Licensee of insurance hereunder shall not limit Licensee's liability under this Agreement, but shall be additional security therefor. 12. GRADE CROSSINGS: 12.1 Nothing herein contained shall be construed to permit Licensee or Licensee's contractor to move any vehicles or equipment over track(s) of Licensor, except at public road crossing(s), without separate prior written approval of Licensor. 13. FLAGGING: 13.1 If Licensor deems it advisable, during the progress of any construction, maintenance, repair, renewal, alteration, change or removal of said Pipeline, to place watchmen, flagmen, inspectors or supervisors for protection of operations of Licensor or others on Licensor's property at the Crossing, Licensor shall have the right to do so at the expense of Licensee, but Licensor shall not be liable for failure to do so. 13.2 Subject to Licensor's consent and to Licensor's railroad operating rules and labor agreements, Licensee may provide flagmen, watchmen, inspectors or supervisors, during all times of construction, in place of Licensor provision, at Licensee's sole risk; and in such event, Licensor shall not be liable for the failure or neglect of such watchmen, flagmen, inspectors or supervisors. 14. LICENSOR'S COSTS: 14.1 Licensor's expense for wages and materials for any work performed at the expense of Licensee pursuant hereto shall be paid by Licensee within thirty (30) days after receipt of Licensor's bill therefor. 14.2 Such expense shall include, but not be limited to, cost of supervision, traveling expenses, Federal Railroad Retirement and Unemployment Taxes, insurance and vacation allowances for Licensor's employees, and insurance and freight and handling charges on all material used. Any equipment rentals shall be payable by Licensee in accordance with Licensor's fixed applicable rate. 14.3 All bills not paid within said thirty (30) days shall thereafter accrue interest at the highest rate permissible by local law or twelve percent (12%) per annum, whichever is higher. , ~T Form 2037-Sheet 7 II; 1987 15. TERMINATION, REMOVAL: 15.1 Upon termination or cancellation, for any reason, or within thirty (30) days of cancellation or revocation, Licensee, at its sole risk and expense, shall remove Pipeline from the property of Licensor, unless the parties hereto agree otherwise, and shall restore property of Licensor in a manner satisfactory to Licensor, and reimburse Licensor all loss, cost or expense Licensor may suffer resulting from such removal. 15.2 All rights which Licensee may have hereunder shall cease and end upon the date of expiration of term or revocation; provided, however, that termination or revocation of this Agreement shall not affect any claims and liabilities which may have arisen or accrued hereunder, and which at the time of termination or revocation have not been satisfied. 16. NOTICE: 16.1 Licensee shall give Licensor at least five (5) days' written notice before doing any work of any character hereunder on Licensor's property, except that in cases of emergency shorter notice may be given. 16.2 All notices and communications concerning this Agreement shall be addressed to Licensee at the address above and to Licensor at the address above, c/o CSXT Property Services J180; or at such other address as either party may designate in writing to the other. 16.3 Unless otherwise expressly stated herein, all such notices shall be in writing and sent via Certified or Registered Mail, Return Receipt Requested, and shall be effective upon receipt or refusal of delivery. 17. ASSIGNMENT: 17.1 Licensee shall obtain Licensor's written consent to any assignment of Licensee's interest herein and shall reimburse Licensor for any loss, cost or expense Licensor may incur as a result of Licensee's failure to obtain said written consent. 17.2 Subject to Section 17.1, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 18. TITLE: 18.1 Licensee shall not at any time own or claim any right, title or interest in or to Licensor's property occupied by Licensee's Pipeline, nor shall the exercise of this Agreement for any length of time give rise to any right, title or interest in Licensee to said property other than the license herein created. , "'T Form 2037-Sheet 8 MT; 1987 19. DEFAULT BY LICENSEE: 19.1 The proper and complete performance of each and every of the covenants of this license shall be deemed of the essence of this Agreement, and in the event Licensee shall fail or refuse to fully and completely perform any or all of said covenants or remedy any breach within thirty (30) days after receiving a written notice from Licensor to do so, Licensor shall have the option of terminating this Agreement, regardless of license fee(s) having been paid in advance for any annual or other period, and revoking the privileges and powers hereby conferred upon Licensee. 20. BREACH, WAIVER: 20.1 Any waiver by either party at any time of its rights as to any covenant or condition herein contained shall not be construed as a permanent waiver of such covenant or condition, or any subsequent breach thereof, unless such covenant or breach is permanently waived in writing by said party. 21. LICENSOR APPROVAL, LIMITS: 21.1 Neither the failure of Licensor to object to any work done, material used, or method of construction or maintenance of said Crossing, nor any approval given or supervision exercised by Licensor, shall be construed as an admission of liability or responsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or responsibility of Licensee under this Agreement. 22. ENTIRETY, EXCLUSIVITY: 22.1 This Agreement contains the entire understanding between the parties hereto. 22.2 provision being for Neither this Agreement, any prOV1Slon hereof, nor any agreement or included herein by reference~ shall operate or be construed as the benefit of any third person. 23. FORM, LAW, FORUM: 23.1 The form or any language of this Agreement shall not be interpreted or construed in favor of or against either party hereto as the drafter thereof. 23.2 It is understood and agreed that this Agreement is executed by all parties under current interpretation of any and all applicable federal, state, county, municipal or other local statute, ordinance or law. Further, it is understood and agreed that each and every separate division (paragraph, clause, item, term, condition, covenant or agreement) herein contained shall have independent and severable status from each other, separate division, or combination thereof, for the determination of legality, so that if any separate division herein is determined to be unconstitutional, illegal, violative of trade or commerce in contravention of public reason, that separate division shall be treated as a nullity, but such holding or determination shall have no effect upon the validity or enforceability of each and every other separate division, herein contained, or any other combination thereof. , "'T Form 2037-Sheet 9 Mr; 1987 23.3 This Agreement shall be construed and governed by the laws of the state in which the Pipeline is located. 24. RIDERS: The following Rider(s) is/are herewith attached and included herein: ] None ] Open-cut or tunneling construction limits ] Flammable or combustible product limits [] Pipe pressure limits [X] Telecommunication Cable or Fiber Optic line [] Public Highway or Municipal Occupancy rider [] Hazardous material transmission [~ Other: Limitations on Liability rider IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate as of the date and year first above written. Witness(es) for Licensor: CSX TRANSPORTATION, INC. ?1; t2~ !0/;J!:6- 9~~~ By G m. /Jf~ Title: CSX Rail Transport Witness(es) for Licensee: LICENSEE: CITY OF CLEARWATER, FLORIDA By: Approved as to form and correctness: c~- Attest: w". _- By: )::.; ~~ - ... .-: .. ..~J~ Cler~ ~ - ~ , ~ Form 2037-Sheet 10 MI;- 1987 COMMUNICATIONS LINE RIDER: No Construction of any type pursuant or related in any way to this Agreement shall be commenced by Licensee, or by any agent, representative, contractor, subcontractor of Licensee, without Licensee giving at least seven (7) days written notice to, and receiving written approval from: ("MCI") Mr. Randy K. Dellinger MCI Telecommunications Corporation 400 International Parkway Richardson, TX 75081 Dept. 1106/041 Phone No. 1-800-624-9675 Licensee must protect any existing wire or fiber optic line (including any appurtenances thereto) of MCI which may traverse or be located in, on, or immediately adjacent to the premises. Licensee shall be solely responsible and liable for any damage (e.g., cutting, dislocating, etc.) to said wire or fiber optic line, and appurtenances thereto, resulting from or incident to Licensee's exercise of rights or privileges under this Agreement. Licensee: Licensor: , ~ , CSXT Form 2037-Sheet 11 LIMITATIONS ON LIABILITY RIDER: Paragraphs 4.2, 5.2, 10.1, 10.2, 10.3, 10.4, 11.1, 11.2, 11.3 and 11.4 are amended as follows: Licensee is a municipality of the State of Florida, and is self insured. This agreement shall not be construed as a waiver by the Licensee or any of its officers, agents or employees of any of the defenses and limitations available to the Licensee and its officers, agents and employees pursuant to Section 768.28, Florida Statutes (1986 Supplement), as amended from tim~ to time. Licensor: O/J1f (Ini tial d)~:,J7 Date) Licensee: ~~....~.,.,~,:-J,'-~_',.,,: ":.;. , . Form CCB-13 March 1987 PLEASE DO NOT REMOVE FROM AGREEMENT Please observe the following when executing the attached instrument: 1. Execution on behalf of a CORPORATION should be accomplished by the - President, Vice President or an officer authorized by Board Resolution to execute legal documents on behalf of the Corporation. If the Corporate name is set out erroneously in the Agreement, the document should be executed and the name corrected and initiaJed where it appears. (Furnish copy of such Resolution.) 2. If Agreement is with an INDIVIDUAL, that individual should sign - the Agreement exactly as the name is set out in the caption of the Agreement. If the name is set out erroneously in the Agreement, the document should be executed and the name corrected and initialed where it appears. 3. If the Agreement is with a PARTNERSH IP, all general members of the - partnership should execute the document unless one member of the firm has been designated managing partner or expressly by the partnership to execute this Agreement. (Furnish copy of such authority. ) 4. The signatures must be WITNESSED by two (2) witnesses in the - spaces provided. 5. NAME(S) and TITlE(S) of person(s) executing the document must be - typed or printed in ink directly beneath signature(s). 6. In returning the Agreement, please furnish fee(s) set out in - Article(s) 7. Check and initial your payment preference in Article 8._ Initial and date each rider attached to the document following the execution sheet. .9._ Furnish Certificate of Insurance as evidenced by Article lO.L Subsequent to receipt of a fully executed copy of this Agreement, you must notify the Division Engineer's office at Tampa, Florida, Telephone (813) 626-4214, extending at least five (5) days' advance notice of the date and time you desire to perform any work on Railroad property. 11. If RENTAL, MAINTENANCE CHARGE or OTHER FEES are involved, show below the address to which bills should be sent: Street Address and/or P. O. Box No. City State Zip Code csx: f ,.-- Property Services I~.' . 500 Water Street. . Jacksonville, Florida 32202-44 ..J (904) 359-1774 TRANSPORTATION October 26, 1987 When corresponding, always refer to: RE-86468-CQ Mr. William C. Baker Director of Public Works City of Clearwater 10 Missouri Avenue South Clearwater, Florida 33516 Dear Mr. Baker: For completion of your records, I am attaching hereto a fully executed duplicate-original of agreement dated July 20 ,1987, between CSX Transportation, Inc. and City of Clearwater, Florida, covering installation and maintenance of a storm water pipeline crossing Railroad's rigpt of way and trackage at a point 1,592 feet southwardly of Milepost SY-875, at or near Clearwater, Florida; which agreement stipulates no work is to be undertaken involving Railroad property until written approval is received by the City of Clearwater from MCI, enabling them to protect their installation on Railroad property. I call your attention to Item 10 on the attached Form which states that you must notify the Division Engineer's office at least five (5) days prior to the date and time you desire to perform any work on Railroad property. Further correspondence pertaining to this agreement should be addressed: Mr. C. M. Kiefer, Jr., Division Manager CSX Transportation, Inc. 5656 Adamo Drive Tampa, FL 33619-3240 referring to his File 13-15615. Very truly yours, ,11,,;J .'7 IJ~ If'. u~~;?~ D. R. Edwards Director Contracts Property Services A~l:,r'f~ ~:~. t~~-;.'.~-r ,-*} -...., /JJl.;'r-;s .. L., <J'. . .,~F." .... ~')T r:JJ'Z" [Jj;;, ~~i:;"'~~i,t ; !:". '1 )-'~_ .,' ~_. ',_l_ -.:" .:.. o c:< '" -,- --_:.' -'. -..... :.-.; L_ . > ~:- _'j OCT 2 8. 87 !-. .;.- :'.J j ;--1-", (.' V:~..i '.'."","..:J C->~.-2': .-', .'" E' ~I Clearwater IIJInterrng De~rtm<e:lt l~." ._ ,-.;" . , . "'-'---~-""_-,--",- ----.- r-. .". CSX Distribution Services. CSX Equipment, CSX Rail Transport and American Corfimerdaf Ones:-:.. ':) ,-:. r.- are business units of the CSX Transportation Group. -- '.,_J . -.-----_____ ,.t, .*.-....,-.~-'-'--,,.-------..--. - -......---.--..