TEMPORARY RIGHT OF ENTRY AGREEMENT NUMBER CSX-048893
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TRANSPORTATION
Becky Snyder
Project Specialist
Corridor & Contract Administration
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500 Water Street, SC 1180
Jacksonville, FL 32202-4423
(904) 359-3405
FAX (904) 359-3665
E-mail: Becky_Snyder@csx.com
csx
August 25, 2005
CSX Agreement No. CSX-048893
Customer Reference No.: 03-0030-
EN
Mr. Michael Quillen, P.E.
City Engineer
City of Clearwater
100 S. Myrtle Avenue
Suite #200
Claerwater, FL 33637
Re: Temporary Right-of-Entry Agreement in Clearwater, Florida.
Dear Mr. Quillen:
Attached is fully-executed original of Agreement No. CSX-048893, dated April 20, 2005.
Access to CSXT property is not permitted without Roadmaster's authorization. It is your
responsibility to schedule access to CSXT property with CSXT Roadmaster by sending
notification via fax, which includes the project description and date and time of access, to fax
number: (813) 664-6388, at least thirty (30) days in advance ofthe date you desire to commence
the project. If after one week of faxing notification to the CSXT Roadmaster you receive no
response, you may call the CSXT Roadmaster at telephone number: (813) 664-6257 (ideally
between the hours of 6:30 AM and 8:30 AM). If you still have trouble receiveing a response
from the CSXT Roadmaster, please contact the CSXT Division Engineer's office at telephone
number: (904) 279-6778 for assistance.
This agreement, and your right to enter CSX property, will expire on June 30, 2006.
Please make a note of this date. If you require to utilize CSXT property beyond that date, it is
your responsibility to contact us, at least 30 days prior to expiration of the agreement.
Very truly yours,
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Becky Snyder
Attachment
CSXT Form ROEl - Page 1
Revised September 2004 0
Agreement No. CSX-048893
CSX Transportation, Inc.
Temporary Right of Entry Agreement
THIS AGREEMENT, Made and effective as of April 20, 2005, by and between CSX
TRANSPORTATION, INC., a Virginia corporation, whose mailing address is 500 Water Street,
Jacksonville, Florida 32202, hereinafter called "CSXT," and CITY OF CLEARWATER, a
municipal corporation, political subdivision or state agency, under the laws of the State of
Florida, whose mailing address is 100 S.MyrtleAvenue, Suite #200, Claerwater, Florida 33637,
hereinafter called "Licensee," WIlNESSETH:
WHEREAS, Licensee has submitted a written application to CSXT requesting
permission to enter CSXT's property located at Clearwater, County of Pin ell as, State of Florida,
Clearwater Subdivision at Milepost ARE-883.06 (the "Property"), for the purpose of
ingress/egress to access adjecent property outside ofCSXT right of way, as shown on print of
Licensee's Drawing EXHIBIT 1.0, dated March 1, 2004, attached hereto and made a part hereof
(the "Project"); and
WHEREAS, CSXT is willing to grant to Licensee the limited right and permission to
enter upon the Property for the limited purpose of performing the Project.
NOW THEREFORE, CSXT hereby grants to Licensee the right and permission to enter
upon the Property for the purpose of performing said Project, subject to the terms and conditions
set forth below:
1. PROJECT: The Project shall be performed at the entire cost and expense of Licensee, in
accordance with good and sound engineering practices, to the satisfaction of CSXT' s
Division Engineer or his or her duly authorized representative ("Division Engineer") and
in a manner to avoid accidents, damages, unnecessary delays to or interference with train
traffic ofCSXT. Prior to entry, Licensee shall notify the Division Engineer's
representative and arrange for flagging protection in accordance with Sections 4 and 6 of
this Agreement. Licensee shall not dig in the ballast line or within the tracks loading
influence area, or otherwise disturb the track structure. Licensee and Licensee's
employees, agents, contractors and other representatives (collectively, "Agents") shall
maintain in their possession a copy of this Agreement at all times during their occupation
of the Property.
2. INDEMNITY:
2.1 Licensee hereby assumes risk of and agrees to indemnify, defend, protect and
save CSXT and CSXT's Affiliates harmless with respect to any and all attorneys' fees,
liability, claims, demands, payments, suits, actions, recoveries, penalties, costs, legal
expenses, judgments, settlements, and damages of every nature, degree, and kind
(including direct, indirect, consequential, incidental, and punitive damages) for:
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CSXT Form ROEl - Page 2
Revised September 2004 {21
Agreement No. CSX-048893
2.1.1 personal injury, including, but not limited to bodily injury to or death of any
person or persons whomsoever, including the agents, servants, Affiliates or
employees of the parties;
2.1.2 the loss or damage to any property whatsoever, including property owned or
in the care, custody or control of the parties hereto or their respective
Affiliates;
2.1.3 any environmental damage and any related remediation brought or recovered
against CSXT or any of its Affiliates; and
2.1.4 any and all other losses or damages;
arising directly or indirectly from the presence of Licensee or its Agents on or about
the Property, whether or not attributable in whole or part to the negligence, gross
negligence, or intentional misconduct of CSXT or its Affiliates.
2.2 The parties waive any and all right or opportunity to contest the enforceability of
this Section and agree that, in the event this Section, or any part of this Section, is found
unenforceable by the fmal, unappealable judgment of a court of competent jurisdiction,
this Section shall be construed so as to be enforceable to the maximum extent permitted
by applicable law. In the event that such court of competent jurisdiction finds that
Florida statutory construction contract indemnity monetary limits apply to this
Agreement with respect to Licensee's indemnification ofCSXT and its Affiliates for
liability caused in whole or in part by any act, omission or default by CSXT or its
Affiliates, the parties hereto agree that such limit shall be equal to the limits (exclusive of
deductibles) of the applicable insurance required by Sections 3 and 4 of this Agreement.
The parties acknowledge and agree that this monetary limit, if required, bears a
commercially reasonable relationship to this Agreement, in so far as, among other
factors, the parties have taken into account the availability and cost of insurance and
other risk transference devices, the scope of the Project, the risks associated with the
Project, and the compensation and any other benefits exchanged between the parties in
connection with this Agreement.
2.2.1 Licensee shall comply with any federal, state, or local laws, statutes, codes,
ordinances, rules, and regulations applicable to its presence or performance of
any activity on the Property and agrees to indemnify, defend, and hold CSXT
and its Affiliates harmless with respect to any fines, penalties, liabilities, or
other consequences for its failure to so comply.
2.2.2 For the purpose of this Agreement, the term "Affiliates" includes all entities,
directly or indirectly owned or controlled by, or under common control of a
party or its respective officers, directors, employees and agents, and in the
case of CSXT, includes CSX Corporation, CSXT and their Affiliates and their
respective officers, directors, employees and agents.
CSXT Form ROEl - Page 3
Revised September 2004 "
Agreement No. CSX-048893
2.2.3 The provisions of this Section shall survive the termination or expiration of
this Agreement.
3. GENERAL LIABILITY INSURANCE:
3.1 Licensee shall procure and maintain, at its expense: (i) statutory Worker's
Compensation and Employers Liability Insurance with available limits of not less than
$1,000,000.00, which insurance must contain a waiver of subrogation against CSXT and
its Affiliates; (ii) Commercial General Liability coverage (inclusive of contractual
liability) with available limits of not less than $3,000,000.00 in combined single limits for
bodily injury and property damage and covering the contractual liabilities assumed under
this Agreement; (iii) business automobile liability insurance with available limits of not
less than $500,000 combined single limit for bodily injury and/or property damage per
occurrence; and (iv) such other insurance as CSXT may reasonably require. Upon
request, Licensee shall provide CSXT with a copy of Licensee's applicable insurance
policies. A policy endorsement naming CSXT, and/or its designee, as an additional
insured and specifying such coverage shall be furnished to CSXT prior to the execution
of this Agreement, and the required coverage will be kept in force until all of Licensee's
obligations under this Agreement have been fully discharged and fulfilled, or until
Licensee shall have been specifically released by a written instrument signed by an
authorized officer ofCSXT. Licensee shall also provide CSXT with a copy of the
insurance policies. The insurance policies shall provide that the insurance carrier must
give CSXT notice at least thirty (30) days in advance of cancellation of coverage, of any
change in coverage, or of cancellation of the policy. Notwithstanding any provisions of
this Section, the liability assumed by Licensee shall not be limited to the required
insurance coverage.
3.2 Notwithstanding the provisions of Section 3.1, Licensee may self-insure in any
amount(s) the CGL liability under this Agreement.
4. PRIOR NOTIFICATION: Licensee or Licensee's Agents shall notify CSXT's
Roadmaster at least 10 days prior to requiring entry on the Property and shall abide by
the instructions of the Division Engineer, or his or her authorized representative. The
Division Engineer can be contacted at Jacksonville Division, 6735 Southpoint Drive, J-
390, Building II, Jacksonville, FL 32216.
5. CLEARANCES: Neither Licensee nor Agents shall perform any Project or place or
operate any equipment of Licensee or Agents at a distance closer than fifty (50) feet from
the center of any track, without the prior approval of the Division Engineer. The
Division Engineer may require protective services or such other services as deemed
necessary or appropriate. Equipment shall be moved across CSXT's track(s) only at a
public crossing unless prior arrangements have been made with the Division Engineer
and a Private Crossing Agreement is fully executed and in place. Licensee and Agents
shall take all precautions necessary to avoid interference with or damage to CSXT's
property and signal and communication facilities during their performance of the Project.
CSXT Form ROE 1 - Page 4
Revised September 2004 '"
Agreement No. CSX-048893
6. PROTECTIVE SERVICES: Ifprotective services, such as flagging protection, are
required by CSXT, Licensee shall make arrangements with the Division Engineer to
furnish such personnel, flagman or watchman, that in the Division Engineer's opinion
may be necessary to protect the facilities and traffic of CSXT during the performance of
the Project. Licensee shall pay for the cost of such services, including all applicable
surcharges and additives.
7. PAYMENT FOR PROTECTIVE SERVICES: Payment shall be made by Licensee in
accordance with the following designated option:
( ) Option 1: Licensee shall make an advance deposit of funds based on an estimate of
the cost of protective or other services as determined by CSXT. The cost for
CSXT's services shall then be assessed by CSXT against this advance deposit.
Upon completion of the Project, any unused funding will be returned to Licensee. If
CSXT's costs exceed the advance deposit(s), a request will be made to Licensee for
additional funds or an invoice will be issued to Licensee for final payment. Licensee
shall remit payment to CSXT within thirty (30) days of receipt of either a request for
additional funds or an invoice.
(X) Option 2: Licensee shall promptly reimburse CSXT for the cost of protective or
other services on an as-incurred basis, including all applicable surcharges, upon
receipt ofbil1(s) therefor.
8. ENVIRONMENTAL: This Agreement does not include and expressly excludes the
performance of any site investigation activities designed to determine environmental
conditions on, about or beneath the Property. Precluded activities include performing
soil borings for purposes other than geotechnical investigation, obtaining soil, sediment,
groundwater and surface water samples, and conducting field or laboratory analyses of
any soil, sediment, groundwater or surface water samples obtained from CSXT property
to identify chemical composition or environmental condition. If any type of
environmental investigation is desired, a separate right of entry agreement issued
through CSXT's Environmental Department must be secured
9. CLAIMS: Licensee shall, or shall require Agents, to promptly notify the Division
Engineer of any loss, damage, injury or death arising out of or in connection with the
Proj ect.
10. REMEDIATION: It is understood and agreed that, upon completion of the Project, the
Property shall be left in a condition satisfactory to Division Engineer or his or her duly
authorized representative.
11. SAFETY:
11.1 All personnel entering the Property must comply with CSXT safety rules and
requirements to include, without exception, the wearing of hard hats and approved safety
"
CSXT Form ROEl - Page 5
Revised September 2004 "
Agreement No. CSX-048893
shoes and safety glasses with side shields. Anyone not in compliance with these rules
and regulations will be asked to leave the Property.
11.2 Before performing any work authorized by this Agreement, Licensee, at its sole
cost and expense, shall obtain all necessary permit(s) (including but not limited to zoning,
building, construction, health, safety or environmental matters), letter(s) or certificate(s) of
approval. Licensee expressly agrees and warrants that it shall conform and limit its
activities to the terms of such permit(s), approval(s) and authorization(s), and shall comply
with all applicable ordinances, rules, regulations, requirements and laws of any
governmental authority (state, federal or local) having jurisdiction over Licensee's
activities, including the location, contact, excavation and protection regulations of the
Occupational Safety and Health Act (OSHA) (29 CFR 1926.65 I (b), et al.), and State "One
Call" -"Call Before You Dig" requirements.
12. TERM: This Right-of-Entry Agreement and the permission conferred and the license
granted by it does not constitute a grant of permanent easement and shall terminate upon
completion of the Project or at midnight, June 30, 2006, whichever occurs first, unless
extended in writing by CSXT. In the event Licensee fails to comply with terms and
provisions of this Agreement, Licensee agrees to pay and agrees that CSXT shall be
entitled to recover costs and expenses incurred by CSXT, including legal fees and
expenses, to enforce the terms of this Agreement.
13. SEVERABILITY: The parties agree that if any part, term or provision of the
Agreement is held to be illegal, unenforceable or in conflict with any applicable federal,
state, or local law or regulation, such part, term or provision shall be severable, with the
remainder of the Agreement remaining valid and enforceable. If any provision or any
part of a provision of the Agreement shall be finally determined to be superseded, invalid,
illegal, or otherwise unenforceable pursuant to any applicable law, ordinance, rule or
regulation, such determination shall not impair or otherwise affect the validity, legality,
or enforceability of the remaining provision or parts of the provision of the Agreement,
which shall remain in full force and effect as if the unenforceable provision or part were
deleted.
14. ENTIRE AGREEMENT: This Agreement embodies the entire understanding of the
parties, may not be waived or modified except in a writing signed by authorized
representatives of both parties, and supersedes all prior or contemporaneous written or
oral understandings, agreements or negotiations regarding its subject matter.
15. NOTICES: All notices, consents and approvals required or permitted by this agreement
shall be in writing and shall be deemed delivered; upon personal delivery, upon the
expiration of three (3) business days following mailing by U.S. first class mail, or upon the
next business day following mailing by a nationally recognized overnight carrier, to the
Licensee at the address above, and to Licensor at the address shown on Page I, c/o CSXT
Contract Administration, 1180; or at such other addresses as either party may designate by
delivery of prior notice to the other party .
CSXT Form ROE! - Page 6
Revised September 2004 0
Agreement No. CSX-048893
16. TERMINATION: CSXT shall have the right at any time and at its sole discretion to
terminate this Agreement upon notice to Licensee.
17. WAIVER: If either party fails to enforce its respective rights under this Agreement, or
fails to insist upon the performance of the other party's obligations hereunder, such
failure shall not be construed as a permanent waiver of any rights or obligations in this
Agreement.
18. GOVERNING LAW; VENUE: This Agreement shall be governed by and construed
under the laws of the State of Florida, without regard to the choice of law provisions
thereof. Venue for any action arising from, or brought to enforce, this Agreement, shall
vest exclusively in the state or federal courts located in Duval County, Florida, and the
parties agree to submit to the personal jurisdiction of any state or federal court located in
Duval County, Florida.
19. NO ASSIGNMENT: Notwithstanding anything to the contrary contained in this
Agreement, Licensee.shall not permit Agents to enter the Property without first requiring
Agents to agree in writing to comply with all of the terms of this Agreement.
Notwithstanding the foregoing, Licensee shall continue to be responsible for insuring that
Agents comply with all of the terms and conditions of this Agreement and shall
indemnify and hold CSXT harmless for any damages described in Section 2 above
caused in whole or in part by such subcontractor. Assignment of this Agreement to any
party other than Agents in accordance with this Section shall not be permitted except
upon the prior written consent of CSXT, which consent may be granted or withheld at
CSXT's sole discretion. This Agreement shall be binding upon the parties and their
respective successors and assigns.
I
CSXT Form ROE! - Page 7
Revised September 2004 0
Agreement No. CSX-048893
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the effective date of this Agreement.
Witness for CSXT:
:S~~OR$if1L
y. I 'h. . olllel
P . tIT N Director - R E Engineerinr
nn ype ame:
~~
PrintlType Title:
Witness for Licensee:
CI~C~~RWATER _
By: 6J!k{A <H-'\-'t3.~ .!.L
Who, by the execution hereof, affirms that he/she
has the authority to do so and to bind the Licensee
to the terms and conditions of this Agreement.
Countersigned:
Print/Type Name: William B. Horne II
.1~~ ;(' ~~
hank V. Hibbard '
Mayor
Print/Type Title: City Manager
Tax ID No.
62-02-134859-54C
Approved as to form:
Authority under Ordinance or
Resolution No. 05-34
dated
Attest:
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C~nt 'a E. Goude:au .
C1ty lerk -
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