05-34
RESOLUTION NO. 05-34
A RESOLUTION OF THE CITY OF CLEARWATER, FLORIDA,
AUTHORIZING THE EXECUTION OF TWO PIPELINE CROSSING
AGREEMENTS AND A TEMPORARY RIGHT-OF-ENTRY
AGREEMENT BETWEEN THE CITY OF CLEARWATER AND CSX
TRANSPORTATION, INC., FOR THE INSTALLATION OF DRAINAGE
CULVERTS WITHIN AND ADJACENT TO CSX RIGHT-OF-WAY,
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City authorizes the execution of agreements Nos, CSX-
048892; CSX-048733; and CSX-048893 and agrees to the terms and conditions of the
agreements, copies of which are attached hereto, and
WHEREAS, CSX Transportation Inc, has agreed to allow the City to install
(1) 3' x 5' box culvert in the vicinity of Howard Street; three (3) 36" concrete pipes in the
vicinity of Belleview Boulevard; and one (1) 4' x 5' box culvert in the vicinity of Woodlawn
Street, all within the CSX Right-of-way, as stated within the terms of said agreement, and
WHEREAS, the City Manager of the City of Clearwater is hereby authorized
to sign the agreement described in this resolution.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section 1. The City Commission hereby accepts and approves the Pipeline
Crossing Agreements and Temporary Right-of-Entry between the City of Clearwater and
CSX Transportation, Inc" allowing the City to install drainage structures and re-construct
and existing ditch,
Section 2. This resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this
4th day of August ,2005.
~".~ r #~
Ftfnk V. Hibbard
Mayor
Attest:
~c ~.JJ._,
Cy t ic:l E. Goudeau
City lerJs, .
Leslie K, Dougall- ide
Assistant City Attorney
Resolution No. 05-34
..
CSXT Form 2537G - Page 1
Revised March, 2005 0
Agreement No. CSX-048892
PIPELINE LONGITUDINAL OCCUPANCY AGREEMENT
THIS AGREEMENT, Made and effective as of June 15,2005, by and between CSX
TRANSPORTATION, INC., a Virginia corporation, whose mailing address is 500 Water Street,
Jacksonville, Florida 32202, hereinafter called "Licensor," 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 South Myrtle Avenue, Suite 200, Clearwater, Florida
33637, hereinafter called "Licensee," WITNESSETH:
WHEREAS, Licensee desires to construct, use and maintain a pipeline, solely for the
transmission of stormwater, hereinafter called "Pipeline." along the rail corridor, right of way and
property owned or controlled by Licensor at or near Belleair, County of Pin ell as, State of Florida,
paralleling Railroad's trackage, 1:?eginning at Valuation Station 3134+18, Milepost ARE-883.20,
and extending to Valuation Station 3135+32, Milepost ARE-883.22, Clearwater Subdivision,
including necessary aerial or subterranean crossing(s), hereinafter called the "Occupan~ as
shown on print of Licensee's DraWing MA048892, dated March 1, 2004, last revised
June 14,2005, attached hereto and made a part hereof; other details and data pertaining to said
Pipeline being as indicated on Licensee's Application Form, dated March 24,2005, also attached
hereto and made a part hereof;
NOW, THEREFORE, inconsideration of the mutual covenants, conditions, terms and
agreements herein contained, the parties hereto agree and covenant as follows:
1. LICENSE:
1.1 Subject to Article 17, Licensor, insofar as it has the legal right, power and authority
to do so, and its present title permits, and subject to:
(A) Licensor's present and future right to occupy, possess and use its property
within the area of the Occupancy for any and all purposes;
(B) All encumbrances, conditions, covenants and easements 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 grant to Licensee the nonexclusive license and permission to construct, maintain,
repair, renew, operate, use, alter or change said Pipeline in the Occupancy above solely for the use
stated above, for the term herein stated, and to remove same upon termination.
1.2 The term Pipeline, as used herein, shall include only the pipes, ducts, casing, vents,
manholes, connectors, fixtures, appliances and ancillary facilities devoted exclusively to the
transmission usage above within the Occupancy, and as shown on attached Application Form,
CSXT Form 25370 - Page 2
Revised March, 2005 0
Agreement No. CSX-048892
..
1.3 No additional pipeline or other facilities shall be placed, allowed or maintained by
Licensee in, upon or along the Occupancy except upon separate prior written consent of Licensor.
2. LICENSE FEE; TERM:
2,1 In lieu of annual payments and in consideration of Licensor's waiver of future fee
increases, Licensee shall pay Licensor a one-time nomefimdable License Fee of FIVE HUNDRED
AND 001100 U.S. DOLLARS ($500,00) upon execution of this Agreement. Licensee agrees that
the License Fee applies only to the original Licensee under this Agreement. In the event of a
successor (by merger, consolidation, reorganization and/or assignment) or if the original
Licensee changes its name, then Licensee shall be subject to payment of Licensor's current
administrative and document preparation fees for the cost incurred by Licensor in preparing and
maintaining this Agreement on a current basis.
2.2 However, Licensee assumes sole responsibility for, and shall pay directly (or
reimburse Licensor), any additional annual taxes and/or periodic assessments levied against
Licensor or Licensor's property solely on account of said Pipeline or Occupancy.
2.3 This Agreement shall terminate (1) June 14, 2030, or (2) as herein provided, but
shall also terminate upon (a) Licensee's cessation of use of the Pipeline or Occupancy for the
purpose(s) above, (b) removal of the Pipeline (c) subsequent mutual consent, and/or (d) failure of
Licensee to complete installation within 5 (five) years from the effective date of this Agreement.
2.4 In further consideration for the license or right hereby granted, Licensee hereby
agrees that Licensor shall not be charged or assessed, directly or indirectly, with any part of the
cost of the installation of said Pipeline and appurtenances, and/or maintenance thereof, or for any
public works project of which said Pipeline is a part.
3. CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee 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 regulation(s) of Licensor, (A.R.E.M.A. Specifications), Licensee's
particular industry, and/or any governmental or regulatory body having jurisdiction over the
Occupancy or Pipeline.
3.2 Location and construction of Pipeline shall be made strictly in accordance with
design(s) and specifications furnished to and approved by Licensor and of the material(s) and
size(s) appropriate for the purpose(s) above recited,
3.3 All Licensee's work and exercise of rights hereunder shall be undertaken so as to
eliminate or minimize any impact on or interference with the safe use and operation of Licensor's
property and appurtenances thereto.
CSXT Form 2537G - Page 3
Revised March, 2005 0
Agreement No. CSX-048892
3.4 In the installation, maintenance, repair or removal of said Pipeline, Licensee shall
not use explosives of any type or perform or cause any blasting without the separate express
written consent of Licensor. As a condition to such consent, a representative will be assigned by
Licensor to monitor blasting, and Licensee shall reimburse Licensor for the entire cost and/or
expense of furnishing said monitor.
3.5 Any repairs or maintenance to Pipeline, whether resulting from acts of Licensee, or
natural or weather events, 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 thirty (30) days after Licensee has
notice as to the need for such repairs or maintenance.
3.6 Licensor, in order to protect or safeguard its property, rail operations, equipment
and/or employees from damage or injury, may request immediate repair or renewal of the Pipeline,
and if the same is not performed, may make or contract to make such repairs or renewals, at the
sole risk, cost and expense of Licensee.
3.7 Neither the failure of Licensor to object to any work done, material used, or method
of construction or maintenance of said Occupancy, nor any approval given or supervision
exercised by Licensor, shall be construed as an admission ofliability or responsibility by Licensor,
or as a waiver by Licensor of any of the obligations, liability and/or responsibility of Licensee
under this Agreement.
3.8 All work on the Occupancy shall be conducted in accordance with Licensor's safety
rules and regulations.
3.9 Licensee hereby agrees to reimburse Licensor any loss, cost or expense (including
losses resulting from train delays and/or inability to meet train schedules) arising from any failure
of Licensee to make, or from improper or incomplete, repairs or maintenance of Pipeline.
4. PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Occupancy for the
contracted purpose, 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) (20 CFR 1926.651(b), et al.), and State "One Call" -"Call Before You
Dig" requirements.
4.2 Licensee assumes sole responsibility for failure to obtain such permit(s) or
approval(s), any violations thereof, or for costs or expenses of compliance or remedy.
CSXT Form 2537G - Page 4
Revised March, 2005 13
Agreement No. CSX-048892
5. MARKING AND SUPPORT:
5.1 With respect to any subsurface installation or maintenance upon Licensor's
property, Licensee, at its sole cost and expense, shall:
(A) Support track(s) and roadbed in a manner satisfactory to Licensor;
(B) Backfill with satisfactory material and thoroughly tamp all trenches to
prevent settling of surface of land and roadbed of Licensor; and
(C) 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 approve.
5.2 After construction or maintenance of Pipeline, Licensee shall:
(A) Restore said track(s), roadbed and other disturbed property; and
(B) 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 related facilities.
," 5.3 Licensee shall be solely responsible for any subsidence or failure oflateral or
subjacent support in the Occupancy area for a period of three (3) years after completion of
installation.
6. TRACK CHANGES:
6.1 In the event that rail operations and/or track maintenance result in changes in grade
or alignment of, additions to, or relocation oftrack(s) or other facilities, or in the event future use
of Licensor' s right-of-way and property necessitate any change oflocation, height or depth of
Pipeline or Occupancy, Licensee, at its sole cost and expense and within thirty (30) days after
notice in writing from Licensor, shall make changes in Pipeline or Occupancy to accommodate
such track(s) or operations.
6.2 If Licensee fails to do so, Licensor may make or contract to make such changes, at
Licensee's cost.
7. PIPE CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of Pipeline and
Occupancy in relation to the existing track(s) and facilities, and shall relocate Pipeline or change
Occupancy, at Licensee's expense, should such relocation or change be necessary to comply with
the minimum clearance requirements of this Agreement or of any public authority.
;,
CSXT Form 2537G - Page 5
Revised March, 2005 I2l
Agreement No. CSX-048892
7.2 If Licensee undertakes to revise, renew, relocate or change all or any part of
Pipeline (including any change in circumference, diameter or radius of pipe or carrier pipe, change
in pipe operating pressure, or change in materials transmitted in and through said pipe), or is
required by any public agency or court order to do so, 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.
8. INTERFERENCE WITH RAIL FACILITIES:
8.1 Although the Pipeline/Occupancy herein permitted may not presently interfere with
Licensor's railroad operations or facilities, in the event that the operation, existence or maintenance
of said Pipeline, in the sole judgment of Licensor, causes: (a) interference (physical, magnetic or
otherwise) with Licensor's communication, signal or other wires, powerlines, train control system,
or other facilities; or (b) interference in any manner with the operation, maintenance or use of the
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 take such remedial action
or make such changes in its Pipeline as may be required in the judgment of Licensor to eliminate
all such interference. Upon Licensee's failure to remedy or change, Licensor may do so or contract
to do so, at Licensee's sole cost.
8.2 Without assuming any duty hereunder to inspect Licensee's Pipeline, Licensor
hereby reserves the right to inspect same and to require Licensee to undertake necessary repairs,
maintenance or adjustments to Pipeline, which Licensee hereby agrees to make promptly, at
Licensee's sole cost and expense.
9. RISK, LIABILITY, INDEMNITY:
With respect to the relative risk and liabilities of the parties, it is hereby agreed that:
9.1 Licensee hereby assumes, and, to the fullest extent permitted by State law
(Constitutional or Statutory, as amended), shall defend, indemnify, and hold Licensor harmless
from and against any and all liability, loss, claim, suit damage, charge or expense which Licensor
may 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 construction, repair, maintenance, replacement, presence,
existence, operations, use or removal of Pipeline or any structure in connection therewith, or
restoration of premises of Licensor to good order or condition after removal, EXCEPT when
proven to have been caused solely by the willful misconduct or gross negligence of Licensor.
HOWEVER, to the fullest extent permitted by State law, during any period of actual
construction, repair, maintenance, replacement or removal of Pipeline, wherein agents,
equipment or personnel of Licensee are on the railroad right-of-way, Licensee's liability
hereunder shall be absolute, irrespective of any joint, sole or contributory fault or negligence of
Licensor.
CSXT Form 25370 - Page 6
Revised March, 2005 0
Agreement No. CSX-048892
9.2 Use of Licensor's right-of-way involves certain risks ofloss or damage as a result of
the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of loss and
damage to Licensee's Property or Pipeline in, on, over or under the Occupancy, including loss of or
any interference with use or service thereof, regardless of cause, including electrical field creation,
fire or derailment arising out of rail operations. For this Section, the term "Licensee's Property"
shall include pipe contents as well as property of third parties situated or placed upon Licensor's
right-of-way by Licensee or by such third parties at request of or for benefit of Licensee.
9.3 . Notwithstanding Section 9.1, Licensee also expressly assumes all risk ofloss which
may result from Licensee's failure to maintain either the Pipeline or the required depth and
encasement for Pipeline.
9.4 . To the extent permitted by State law, as above, Licensee assumes all responsibility
for, and agrees to defend, indemnify and hold Licensor hannless from: (a) all claims, costs and
expenses, including reasonable attorneys' fees, as a consequence of any sudden or nonsudden
pollution of air, water, land and/or ground water on or off the Occupancy area, arising from or in
conn~ction with the use of this Occupancy or resulting from leaking, bursting, spilling, or any
escape of the material transmitted in or through said Pipeline; (b) any claim or liability arising
under federal or state law dealing with either such sudden or nonsudden pollution of air, water,
land and/or ground water arising therefrom or the remedy thereof; and (c) any subsidence or failure
of lateral or subjacent support of the tracks arising from such leakage.
9.5 Obligations of Licensee hereunder to defend, indemnify and hold Licensor
hannless shall also extend to companies and other legal entities that control, are controlled by,
subsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the right-
of-way on which the Crossing is located, and their respective officers, agents and employees.
9.6 If a claim is made or action is brought against either party, for which the other party
may be responsible hereunder, in whole or in part, such other party shall be notified and permitted
to participate in the handling or defense of such claim or action.
CSXT Form 2537G - Page 7
Revised March, 2005 "
Agreement No. CSX-048892
10. INSURANCE:
10.1 Prior to commencement of surveys, construction or occupation of Occupancy
pursuant to this Agreement, Licensee shall procure, and shall maintain during the continuance of
this Agreement, at Licensee's sole cost and expense, a policy of Commercial General Liability
Insurance (CGL), naming Licensor, and/or its designee, as additional insured and covering liability
assumed by Licensee under this Agreement. A coverage limit of not less than THREE MILLION
AND 00/1 00 U.S. DOLLARS ($3,000,000.00) Combined Single Limit per occurrence for bodily
injury liability and property damage liability is currently required as a prudent minimum to protect
Licensee's assumed obligations. The evidence of insurance coverage shall be endorsed to provide
for thirty (30) days' notice to Licensor, or its designee, prior to cancellation or modification of any
policy. Mail CGL certificate, along with agreement, to CSX Transportation, Inc., Speed Code J180,
500 Water Street, Jacksonville, FL 32202. On each successive year, send certificate to Speed Code
C907 at the address listed above.
10.2 If said CGL policy does not automatically cover Licensee's contractual liability
during periods of survey, construction, maintenance and continued occupation, a specific
endorsement adding such coverage shall be purchased by Licensee. If said CGL policy is written
on a "claims made" basis instead of a "per occurrence" basis, Licensee shall arrange for adequate
time for reporting losses. Failure to do so shall be at Licensee's sole risk.
10.3 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee, pursuant to
State Statute(s), may self-insure or self-assume, in any amount(s), any contracted liability arising
under this Agreement, under a ftmded program of self-insurance, which fund will respond to
liability of Licensee imposed by and in accordance with the procedures established by law.
10.4 Securing such insurance shall not limit Licensee's liability under this Agreement,
but shall be additional security therefor.
10.5 Specifically to cover construction and/or demolition activities within fifty feet
(50') of any operated railroad track(s) or affecting any railroad bridge, trestle, tunnel, track(s),
roadbed, overpass or underpass, Licensee shall first procure, at Licensor's current rate at time of
request, Railroad Protective Liability (RPL) insurance from Licensor to cover the cost of adding
this Crossing, or additional construction and/or demolition activities, to Licensor's Railroad
Protective Liability (RPL) Policy for the period of actual construction. This coverage is offered
at Railroad's discretion and may not be available under all circumstances.
11. GRADE CROSSINGS; FLAGGING:
11.1 Nothing herein contained shall be construed to permit Licensee, or any contractor
of Licensee, to move any vehicles or equipment over the track( s), except at public road crossing( s),
without separate prior written approval of Licensor (CSXT Form 7422).
CSXT Form 25370 - Page 8
Revised March, 2005 0
Agreement No. CSX-048892
11.2 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 at the Occupancy for protection of operations of Licensor or
others on Licensor's right-of-way, and to keep persons, equipment and materials away from the
track(s)"Licensor shall have the right to do so at the expense of Licensee, but Licensor shall not be
liable for failure to do so.
11.3 Subject to Licensor's consent and to Licensor's Railroad Operating Rules and
existing labor agreements, Licensee may provide such flagmen, watchmen, inspectors or
supervisors, during all times of construction, repair, maintenance, replacement or removal, at
Licensee's sole risk and expense; and in such event, Licensor shall not be liable for the failure or
neglect of such watchmen, flagmen, inspectors or supervisors.
i:
12. LICENSOR'S COSTS:
12.1 Any additional or alternative costs or expenses incurred by Licensor to
accommodate Licensee's continued use of Licensor's property as a result of track changes or pipe
changes shall also be paid by Licensee.
, 12.2 Licensor's expense for wages ("force account" charges) 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, subject to Licensee's budgetary rules. Licensor may, at
its discretion, request an advance deposit for estimated Licensor costs and expenses.
. .
.12.3 Such expense shall include, but not be limited to, cost of railroad labor and
supervision under "force account" rules, plus current applicable overhead percentages, the actual
cost of materials, and insurance, freight and handling charges on all materials used. Equipment
rentals shall be in accordance with Licensor's applicable fixed rate(s). Licensor may, at its
discretion, require advance deposits for estimated costs of such expenses and costs.
13. DEFAULT, BREACH, WAIVER:
13.1 The proper and complete performance of each covenant of this Agreement shall be
deemed of the essence thereof, and in the event Licensee shall fail or refuse to fully and completely
perform any of said covenants or to remedy any breach, within thirty (30) days after receiving a
written notice from Licensor to do so (or within forty-eight (48) hours in the event of notice of a
railroad emergency), Licensor shall have the option of revoking this Agreement, and the privileges
and powers hereby conferred, regardless oflicense fee(s) having been paid in advance for any
annual or other period. Upon such revocation, Licensee shall make removal in accordance with
Article 14.
13.2 Any waiver by Licensor of any breach of covenant or condition shall not be
construed as a permanent waiver of such covenant or condition, or any subsequent breach thereof,
unless such covenant or condition is permanently waived in writing by Licensor.
,
CSXT Form 2537G - Page 9
Revised March, 2005 0
Agreement No. CSX-048892
14.
TERMINATION, REMOVAL:
14.1 All rights which Licensee may have hereunder shall cease upon (a) termination,
(b) revocation, (c) subsequent agreement, or (d) Licensee's removal of Pipeline from the
Occupancy. However, neither the termination nor revocation of this Agreement shall 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; neither party, however, waiving any third party
defenses or actions.
14.2 Within thirty (30) days after revocation or termination, Licensee at its sole risk
and expense, shall (a) remove Pipeline from the right-of-way of Licensor, unless the parties
hereto agree otherwise, (b) restore property of Licensor in a manner satisfactory to Licensor, and
(c) reimburse Licensor any loss, cost or expense of Licensor resulting from such removal.
15. NOTICE:
15.1 Licensee shall give Licensor's Division Engineer (Jacksonville Division, 6735
Southpoint Drive, J-390,Building II, Jacksonville, FL 32216) at least thirty (30) days written notice
before doing anv work on Licensor's right-of-way, except that in cases of emergency shorter notice
may be given to said Division Engineer. The rail operations emergency phone number fer Licensor
is: 1-800-232-0144. The emergency phone number for Licensee is:
727.1;62-- '1')/J'7
15.2 All other notices and communications concerning this Agreement shall be
addressed to Licensee at the address shown on Page 1, and to Licensor at the address shown on
Page 1, c/o CSXT Contract Administration J180; or at such other address as either party may
designate in writing to the other.
15.3 Unless otherwise expressly stated herein, all such notices shall be in writing and
sent via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be
effective upon (a) actual receipt, or (b) date of refusal of such delivery.
16. ASSIGNMENT:
16.1 The rights herein conferred are the privilege of Licensee only, and Licensee shall
obtain Licensor's prior written consent to any assignment of Licensee's interest herein; said
consent shall not be unreasonably withheld.
16.2 Subject to Sections 2 and 16.1, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors or assigns.
16.3 Licensee shall give Licensor notice of any legal succession (by merger,
consolidation, reorganization, etc.) or other change oflegal existence or status of Licensee, with a
copy of docwnents attesting to such change or legal succession, within thirty (30) days thereof.
CSXT Form 25370 - Page 10
Revised March, 2005 0
Agreement No. CSX-048892
16.4 Licensor expressly reserves the right to assign this Agreement, in whole or in part,
to any grantee, lessee, or vendee of Licensor's underlying property interests in the Occupancy,
upon notice thereof to' Licensee.
16.5 In the event of any unauthorized sale, transfer, assignment, sublicense or
encumbrance of this Agreement, or any of the rights and privileges hereunder, Licensor, at its
option, may revoke this Agreement by written notice to Licensee or any such assignee; and
Licensee shall reimburse Licensor any loss, cost or expense incurred by Licensor as a result of
Licensee's failure to obtain said written consent.
17. TITLE:
17.1 Licensee understands that Licensor occupies, uses and possesses lands, rights-of-
way and rail corridors under all forms and qualities of ownership rights or facts, from full fee
simple absolute to bare occupation. Accordingly, nothing in this Agreement shall act as or be
deemed to act as any warranty, guaranty or representation of the quality of Licensor's title for any
particular Right-of-Way in Crossing(s) occupied, used or enjoyed in any manner by Licensee
under any rights created in this Agreement. It is expressly understood that Licensor does not
warrant title to any Right-of-Way in the Occupancy, and Licensee will accept the grants and
privileges contained herein, subject to all lawful outstanding existing liens, mortgages and superior
rights in and to the Right-of-Way, and all leases, licenses and easements or other interests
previously granted to others herein.
17.2 The term "license," as used herein, shall mean with regard to any portion of the
Right-of-Way which is owned by Licensor in fee simple absolute, or where the applicable law of
the State where the Occupancy is located otherwise permits Licensor to make such grants to
Licensee, a "permission to use" the Right-of-Way, with dominion and control over such portion
of the Right-of-Way remaining with Licensor, and no interest in or exclusive right to possess
being otherwise granted to Licensee. With regard to any other portion of Right-of-Way
occupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives
its exclusive right to occupy the Right-of-Way and grants no other rights whatsoever under this
Agreement, such waiver continuing only so long as Licensor continues its own occupation, use
or control. Licensor does not warrant or guarantee that the license granted hereunder provides
Licensee with all of the' rights necessary to occupy any portion of the Right..;of-Way. Licensee
further acknowledges that it does not have the right to occupy any portion of the Right-of-Way
held by Licensor in less than fee simple absolute without also receiving the consent of the
owner(s) of the fee simple absolute estate. Further, Licensee shall not obtain, exercise or claim
any interest in the Right-of-Way that would impair Licensor's existing rights therein.
17.3 Licensee agrees it shall not have nor shall it make, and hereby completely and
absolutely waives its right to, any claim against Licensor for damages on account of any
deficiencies in title to the Right-of-Way in the event of failure or insufficiency of Licensor's title to
any portion thereof arising from Licensee's use or occupancy thereof.
CSXT Form 2537G - Page II
Revised March, 2005 "
Agreement No. CSX-048892
17.4 Licensee agrees to fully and completely indemnify and defend all claims or
litigation for slander of title, overburden of easement, or similar claims arising out of or based upon
Licensee's facilities placement, or the presence of Licensee's facilities in, on, or along Occupancy,
including claims for punitive or special damages.
17.5 Licensee shall not at any time own or claim any right, title or interest in or to
Licensor's property occupied by the Occupancy, nor shall the exercise of this Agreement for any
length of time give rise to any right, title or interest in License to said property other than the
license herein created.
18. GENERAL PROVISIONS:
18.1 This Agreement, and the attached specifications, contains the entire understanding
between the parties hereto.
18.2 Neither this Agreement, any provision hereof, nor any agreement or provision
included herein by reference; shall operate or be construed as being for the benefit of any third
person.
18.3 Except as otherwise provided herein, or in any Rider attached hereto, neither the
form of this Agreement, nor any language herein, shall be interpreted or construed in favor of or
against either party hereto as the sole drafter thereof.
18.4 This Agreement is executed under current interpretation of applicable, federal, state,
county, municipal or other local statute, ordinance or law. However, each separate division
(paragraph, clause, item, term, condition, covenant or agreement) hereof shall have independent
and severable status for the determination of legality, so that if any separate division is determined
to be void or unenforceable for any reason, such determination shall have no effect upon the
validity or enforceability of each other separate division, or any combination thereof.
18.5 This Agreement shall be construed and governed by the laws of the state in which
the Pipeline and Occupancy are located.
18.6 If any amount due pursuant to the terms of this Agreement is not paid by the due
date, it will be subject to Licensor's standard late charge and will also accrue interest at eighteen
percent (18%) per annum, unless limited by local law, and then at the highest rate so permitted.
18.7 Licensee agrees to reimburse Licensor for all reasonable costs (including attorney's
fees) incurred by Licensor for collecting any amount due under the Agreement.
CSXT Form 2537G - Page 12
Revised March, 2005 "
Agreement No. CSX-048892
18.8 The provisions of this License are considered confidential and may not be disclosed
to a third party without the consent of the other party(s), except: (a) as required by statute, regulation
or, court order, (b) to a parent, affiliate or subsidiary company, (c) to an auditing firm or legal
counsel that are agreeable to the confidentiality provisions, or (d) to Lessees of Licensor's land
a,nd/or track who are affected by the terms and conditions of this Agreement and will maintain the
confidentiality of this Agreement.
18.9 Licensor shall refund to Licensee any overpayments collected, plus any taxes paid in
advance; PROVIDED, however, such refund shall not be made when the cumulative total involved
is less than One Hundred Dollars ($100.00).
19. RIDERS:
The following Rider(s) is/are herewith attached and included herein:
[X] Telecommunication Cable or Fiber Optic line
.
CSXT Form 2537G - Page 13
Revised March, 2005 fa
Agreement No. CSX-048892
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
(each of which shall constitute an original) as of the effective date of this Agreement.
Witness for Licensor:
Witness for Licensee:
Countersigned:
Frank V. Hibbard
Mayor
Approved as
I '
I
Leslie K. DougalL~
(
Assistant City Art
CSX TRANSPORTATION, INC.
By:
Print/Type Name: '
Print/Type Title:
CITY OF CLEARWATER
By:
Who, by the execut.i~n hereof, affirms that he/she
has the authority to do so and to bind the Licensee
to the terms and conditions of this, Agreement.
Print/Type Name: William B. Horne II
Print/Type Title:
City Manager
Tax ID No.
Authority under Ordinance or
Resolution No. 05-34
dated
ATTEST:
Cynthia E. Goudeau
City Clerk
COMMUNICATIONS CABLE OR FIBER OPTIC LINE PROTECTION RIDER
~
1. 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 first giving at least thirty (30) days written notice to the following Parallel Cable
Occupier( s):
"
.J/'
: C1MCI")
,',t'"
A T1N: Investigations
Mr. Dean Boyers
Worldcom/MCI Telecommunications Corporation
2400 North Glenville Drive
FUchardson, 1J{ 75082-4354
Phone No. (800) 624-9675
or (972) 729-6016
(NOTE: WRITTEN NOTICE TO MCI IS ALSO REQUIRED)
2. The notice shall be accompanied by drawing(s) showing the general plan, elevation,
details and methods of Licensee's proposed construction, and the location ofOccupier(s)' cable or
facilities in relation to Licensee's proposed construction.
_s,;
1 ,3. .:prior to any construction, Licensee must locate and identify, any existing cable,
wire or.fiber optic line (including any appurtenances thereto) of said cable occupier( s) traversing or
located in, on, or.iJl1!11ediatelyadjacent to the proposed Crossing, at Licensee's sole risk.
4. Any changes, alteration, relocation or protection ofwire(s), cable(s) or facilities of
such Occupier(s), required by said Occupier(s), shall be at Licensee's sole expense except as
, othenyi~e negqtiated between Licensee and said Occupier(s).
S. Licensee shall be solely responsible and liable for any damage to (e.g., cutting,
dislocating, etc.) said wire(s) or cable(s), and appurtenances thereto, resulting in any way from
Licensee's exercise of rights or privileges under this Agreement.
,6. Licensee shall defend, indemnify and hold Licensor hannless from any such
damage claims and any relocation or protection costs of said Occupier(s).
CSX TRANSPORTATION, INC.
Licensor:
(Initial)
(Date)
CITY OF CLEARWATER
Licensee:
(Initial)
(Date)
FORM CSXT 7455 -Rev. 1/01/05 (page 1 of 2)
.. ,;. ..
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APPLICATION FOR PIPELINE CROSSING OR PARALLELING
PROPERTffiS AND TRACK.
Submit one original and one copy of both the application and drawing along with a $750.00
nonrefundable Application Fee to CSX Transportation, Property Services 1180, 500 Water
Street, Jacksonville, FL 32202.
Application and plans must be approved and written authority received from the Railroad before
construction is begun. Your proposal and construction must be in accordance with CSXT's
Specifications and any current governing laws or regulations. Note: Specifications furnished in
the Application Package are to be used as a guideline only. CSXT reserves the right to approve
or decline any application.
PLEASE SIGN BEFORE COMPLETING:
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I affirm the information I am furnishing in this application will comply with the current CSX Standards, governing
laws ocregu1atioos, ~~ the ~ _on pI....: , .
Signature: ... ~ Application Date: '3,- ~ y:-CU....
\Project Owner Information:1 0 Check here if agreement should be mailed to this address
1. Complete Le2al Name of aDDlicant as it would aunear in a lenl document (ilUlccurate information wHl delav
your reauest):
City of Clearwater
2. Company Contact Name: Michael Quillen, P.E.
Title: City Engineer
3. Telephone: tn:J) 562-4743 Fax: (727)562-4755 E-Mail: mquillen@c1earwater-fl.com
Company Emergency Contact Number (in case of derailment, pipe failure, etc.):
4. Street Address: 100 S. Mvrtle A venue #200 City: Clearwater State: FL Zip; 33637
5. Type of business:
0, Corporation (State of incorporation )
o Partnership (Type and State of Partnership )
o Individual 0 Developer I Municipality 0 Other
!Engineer/Consultant Information:!
6. Company Name: Ayres Associates Inc.
7. Company Contact Name: Alex Ghafari. P.E.
8. Telephone: (su) 978-8688 Fax: (813) 978-9369
9. Street Address: .ver Pkw Suite 200 City:
o Check here if agreement should be mailed to this address
Title: Project Manager
E-Mail: JdJ.afariA@AyresAssociates.com
Tam a State: FL Zip: 33637
/Project Information:l (Note: Metric Information will ti!lI lie accepted.)
10. Is this installation: 0 New 0 Revision to existing 0 Attachment to existiag . Upgrade to existing
11. If not a new installation, furnish existing Agreement Number: Nt A
12. If this installation is to be a supplement to your master (general) agreement, furnish:
Agreement Number: Date:
13. Your Reference Number: 03-0030-EN
14. Work to be performed by:
o Applicant's employees Is Applicant an Aegis member? 0 Yes 0 No
JI Contractor Contractor Name: TBD
15. Town Location: Clearwater County: Pinellas StatelProvince: FL
(Form continued on Page 2)
!Proiect Information Cont'd:1 (S i~ (JLf~ 'L .
16. Product to be Conveyed: Stormwater Flammable: 0 Yes:>> No
Temperature: Ambient
17. Maximum Working Pressure: N/A Field Test Pressure: Type Test:
18. Location ofShut-OffValves: N/A
19. Number: 0 Manholes_ l( Other (describe) (1) 3' x 5' RCBC
to be located within Railroad corridor. Manholes shall be flush with top of ground and dimensions
of ancillary structures are required on drawing.
20. Distance from manholes/other to nearest track: - 60 ft
21. Angle of Crossing: Number of Tracks to be crossed2
22. PIPE SPECIFICATIONS: CARRIER PIPE: CASING PIPE:
Material Reinforced Concrete
Material Specifications & Grade
Minimum Yield Strength of Material PSI 3000 PSI
Inside Diameter 3' x 5'
Wall Thickness 8"
Outside Diameter 4' - 4" x 6' - 4"
Type of Seam
Kind of Joints Tongue & Groove
Total Length Within Railroad RIW 52LF
Tunneling (Liner Plates) Note: Attach manuladarer's ShOB detail and comButations that
include Dlate thickness and 2a2e.
Vents: Number Size Height above ground
Seals: 0 One End 0 Both Ends
Bury depth: Base of rail to top of cuing: feet inches
Not beneath tndcs: 1 feet 0 inches
(Below ditches) 0 fee~ 0 inches
Cathodic Protection: 0 Yes J[ No Protective Coating: 0 Yes (Kind) INo
23. Method of installation: Open trench (Note: Directional boring is prohibited. See specs)
24. Location of boring pits from adjacent track @ 900: Launching Pit: ft., Receiving Pit: ft.
25. Temporary track support or riprapping required? 0 Yes I No (Describe and Detail on Drawing)
26. Wires, poles, obstructions to be relocated? 0 Yes JI No (Describe and Detail on Drawing)
27. Is this both a Crossing and Parallelism? 0 Yes INo
28. Crossing location: feet (direction) from Railroad Milepost:
Ifknown: Valuation Station: Valuation Map Number:
If known: LatitudelLongitude:
Ifknown: Street Address of Crossing/Parallelism: Howard St. & Mvrtle Ave. Intersection
29. Parallelism location: Beginning: 1052 feet S (direction) from RR Milepost: 883
and Ending: 1166 feet S (direction) from RR Milepost: 883
30. Total length on Railroad R/W: 52LF Length Crossing: Length Paralleling: 52 LF
31. Will line be entirely within a public road R1W?:rJ{ Yes o No DOT/AARCrossing No.: 626649L
*. If you answered yes, road name, number, and width of public right-of-way are required on drawing
32. a) Will this occupancy connect to an existing facility within Railroad corridor?lI Yes o No
b) If Yes, name facility owner(s): City of Clearwater
FORM CSXT 7455 - Rev. 1/01/05 (Page 2 of 2)
"lroad Use OnI :
Division '"$ At u.s ON 1/ r.. J..--t-t: Subdivision C L f.A-fl.\4/A ~ GIl No. of Crossings: cj
Absolute No.: V03iSS- d- V01.ts""7 Valuation Section/Map No.:
Valuation Station: .tr-o"" '11 3 Lf -r ,8" (0 3 1 3S"' -+ "J "l...
Milepost: kg,,^- A;t~- ~3, 2-0 tii AR'; - g--g:l.-,,,-
Roadmaster No.:
P7l.
Contr. Type: P1-5rL / ~/w
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AGREEMENT CHECKLIST
Agreement Number: CSX-048733
Please perform the following when executing the attached instrument:
X Sign the signature page in order to execute the agreement One of the following should apply:
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, (Copy of Board Authorization
should be furnished for anyone signing, other than the President or Vice President) If the Corporate name is set out
erroneously in the Agreement, the document should be executed and the name corrected and initialed where it appears.
(Municipal Corporation, furnish copy of such Resolution.)
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,
If the Agreement is with a PARTNERSHIP, 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 the
Agreement (Furnish copy of such authority.)
~ The signature(s) must be WITNESSED by ONE (1) witness in the spac~(s) provided.
X NAME(S} and TITlE(S} of person(s) executing the agreement must be typed or printed in. ink directly beneath
- signature(s), '
X Social Security Number is required if Agreement is with an INDIVIDUAL, if Agreement is with other than an
- INDIVIDUAL, a Tax Identification Number is required.
~ Furnish Certificate of Insurance which states "CSX Transportation, Inc. as additional insured,'. which is required
under the INSURANCE Article, to Speed Cod~ J180, 500 Water Street, Jacksonville, Fl 32202, Questions regarding
the insurance requirements should be directed to CSXTs Mr. W. D, Tyler, Manager Risk Management (904) 366-5090.
X Initial and date each rider attached to the document following the signature page.
X In returning the Agreement, please furnish the following fee(s) set out in the Article(s) described within the Agreement:
One-Time License Fee (refer to FEE's Article)
$16,000,00
*$2,250.00
$18,250.00
Railroad Protective Liability Insurance (refer to INSURANCE Article)
TOTAL DUE
* If because of State Statute/law you cannot meet the monetary coverage limits required in Section 10.1 of the Agreement,
you must pay the total due listed above, which includes a 50% surcharge, in the amount of $750,00, towards the RPl
payment If you can meet the monetary requirements of Section 10.1, you may reduce the total amount due by $750.00.
Payment of the surcharge does not waive Section 10,1, it only compensates for less than required monetary coverage. You
will still need to provide insurance documentation in accordance with Section 10.1,
CSXT Form 2037G - Page 1
Revised March, 2005 0
Agreement No. CSX-048733
PIPELINE CROSSING AGREEMENT
THIS AGREEMENT, Made and effective as of May 16, 2005, by and between CSX
TRANSPORTATION, INC., a Virginia corporation, whose mailing address is 500 Water Street,
Jacksonville, Florida '32202, hereinafter called "Licensor," and CITY OF CLEAR WATER, a
municipal corporation.; political subdivision or state agency, under the laws of the State of
Florida, whose mailing address is 100 South Myrtle Avenue, Suite 200, Clearwater, Florida
33637, hereinafter called "Licensee," WITNESSETH:
WHEREA~, L~censee desires to construct, use and maintain pipeline crossings, hereinafter called
"Pipeline." under or across property owned or controlled by Licensor at or near Belleair, County of
Pinellas,State of Florida, Clearwater Subdivision, listed below, hereinafter collectively called the
"Crossing. II as shown on print of Licensee's DraWIngs attached hereto and made a part hereof; other
details and data pertaining to said Pipeline being as indicated on Licensee's Applications Form(s), also
attached hereto and made a part hereof;
1 a new 36" pipeline solely for the transmission of stormwater located at Valuation
Statioli'3122+04, Milepost ARE-882.97;
2 a new 36" pipeline solely for the transmission of stormwater located at Valuation
Station 3122+10, Milepost ARE-882.97;
3 a new 36" pipeline solely for the transmission of stormwater located at Valuation
Sta.tion3122+ 16, Milepost ARE-882.97;
4 an existing 36" pipeline solely for the transmission of stormwater located at
Valuation Station 3122+23, Milepost ARE-882.97.
NOW, THEREFORE, in consideration ofthe mutual covenants, conditions, terms and
agreements herein contained, the parties hereto agree and covenant as follows:
1. LICENSE:
1.1 Subject to Article 17, Licensor, insofar as it has the legal right, power and authority
to do so, and its present title permits, and subject to:
(A) Licensor's present and future right to occupy, possess and use its property
within the area ofthe 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, shall include only the pipes, ducts, casing, vents,
manholes, connectors, fixtures, appliances and ancillary facilities devoted exclusively to the
transmission usage above within the Crossing, and as shown on attached Application Form.
....
CSXT Form 2037G - Page 2
Revised March, 2005 0
Agreement No. CSX-048733
1.3 No additional pipeline or other facilities shall be placed, allowed or maintained by
Licensee in, upon or along the Crossing except upon separate prior written consent of Licensor.
2. LICENSE FEE; TERM:
2.1 In lieu of annual payments and in consideration of Licensor's waiver of future fee
increases, Licensee shall pay Licensor a one-time nomefundable License Fee of SIXTEEN
THOUSAND AND 00/100 D.S, DOLLARS ($16,000.00) upon execution of this Agreement.
Licensee agrees that the License Fee applies only to the original Licensee under this Agreement.
In the event of a successor (by merger, consolidation, reorganization and/or assignment) or if the
original Licensee changes its name, tl?-en Licensee shall be subject to payment of Licensor's
current administrative and document preparation fees for the cost incurred by Licensor in
preparing and maintaining this Agreement on a current basis.
2.2 However, Licensee assumes sole responsibility for, and shall pay directly (or
reimburse Licensor), any additional annual taxes and/or periodic assessments levied against
Licensor or Licensor's property solely on account of said Pipeline or Crossing.
2.3 This Agreement shall terminate (1) May 15,2030, or (2) as herein provided, but
shall also terminate upon (a) Licensee's cessation of use ofthe Pipeline or Crossing for the
purpose(s) above, (b) removal of the Pipeline, (c) subsequent mutual consent, and/or (d) failure of
Licensee to complete installation within 5 (five) years from the effective date of this Agreement.
2.4 In further consideration for the license or right hereby granted, Licensee hereby
agrees that Licensor shall not be charged or assessed, directly or indirectly, with any part ofthe
cost of the installation of said Pipeline and appurtenances, and/or maintenance thereof, or for any
public works project of which said Pipeline is a part.
3. CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee 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 regulation(s) of Licensor (A.R.E.M.A, Specifications) and Licensee's
particular industry, and/or any governmental or regulatory body having jurisdiction over the
Crossing or Pipeline.
3.2 Location and construction of Pipeline shall be made strictly in accordance with
design(s) and specifications furnished to and approved by Licensor, and ofmaterial(s) and size(s)
appropriate for the purpose(s) above recited.
3.3 All Licensee's work and exercise of rights hereunder shall be undertaken at time(s)
satisfactory to Licensor and so as to eliminate or minimize any impact on or interference with the
safe use and operation of Licensor's property and appurtenances thereto.
CSXT Form 2037G - Page 3
Revised March, 2005 0
Agreement No. CSX-048733
3.4 In the installation, maintenance, repair and/or removal of said Pipeline, Licensee
shall not use explosives of any type or perform or cause any blasting without the separate express
written consent of Licensor. As a condition to such consent, a representative will be assigned by
Licensor to monitor blasting, and Licensee shall reimburse Licensor for the entire cost and/or
expense of furnishing said monitor.
3.5 Any repairs or maintenance to Pipeline, whether resulting from acts of Licensee, or
natural or weather events, 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 thirty (30) days after Licensee has
notice as to the need for such repairs ortnaintenance,
3.6. Licensor, in order to protect or safeguard its property, rail operations, equipment
and/or employees from damage or injury, may request immediate repair or renewal of the Pipeline,
and if the same is not performed, may make or contract to make such repairs or renewals, at the
sole risk, cost and expense of Licensee.
3.7 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 ofthe obligations, liability and/or responsibility of Licensee under this
Agreement.
3.8, All work on the Crossing shall be conducted in accordance with Licensor's safety
rules and regulations.
3.9 Licensee hereby agrees to reimburse Licensor any loss, cost or expense (including
losses resulting from train delays and/or inability to meet train schedules) arising from any failure
of Licensee to make repairs or conduct maintenance as required by Section 3.5 above or from
improper or incomplete repairs or maintenance to Pipeline.
4. PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Crossing for the
contracted purpose, 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
govemmentalauthority (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) (20 CFR 1926,651(b), et aL), and State "One Call" - "Call Before You
Dig" requirements,
4.2 Licensee assumes sole responsibility for failure to obtain such permit(s) or
approval(s), for any violations thereof, or for costs or expenses of compliance or remedy,
CSXT Form 2037G - Page 4
Revised March, 2005 0
Agreement No. CSX-048733
5. MARKING AND SUPPORT:
5.1 With respect to any subsurface installation or maintenance upon Licensor's
property, Licensee, at its sole cost and expense, shall:
(A) Support track(s) and roadbed in a manner satisfactory to Licensor;
(B) Backfill with satisfactory material and thoroughly tamp all trenches to
prevent settling of surface ofland and roadbed of Licensor; and
(C) 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 approve.
5.2 After construction or maintenance of Pipeline, Licensee shall:
(A) Restore said track(s), roadbed and other disturbe<,i property; and
(B) 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 related facilities,
5.3 Licensee shall be solely responsible for any subsidence or failure oflateral or
subjacent support in the Crossing area for a period of three (3) years after completion of
installation.
6. TRACK CHANGES:
6.1 In the event that rail operations and/or track maintenance result in changes in grade
or alignment of, additions to, or relocation oftrack(s) or other facilities, or in the event future use
of Licensor's right-of-way and property necessitate any change of location, height or depth of
Pipeline or Crossing, Licensee, at its sole cost and expense and within thirty (30) days after notice
in writing from Licensor, shall make changes in Pipeline or Crossing to accommodate such track(s)
or operations.
6.2 If Licensee fails to do so, Licensor may make or contract to make such changes at
Licensee's cost.
7. PIPE CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of Pipeline and
Crossing in relation to the existing tracks and facilities, and shall relocate Pipeline or change
Crossing, at Licensee's expense, should such relocation or change be necessary to comply with the
minimum clearance requirements ofthis Agreement or of any public authority.
CSXT Form 2037G - Page 5
Revised March, 2005 0
Agreement No. CSX-048733
"
7,2 If Licensee undertakes to revise, renew, relocate or change all or any part of
Pipeline (including any change in circumference, diameter or radius of pipe or carrier pipe, change
in operating pressure, or change in materials transmitted in and through said pipe), or is required by
any public agency or court order to do so, plans therefor shaH be submitted to Licensor for
approval before any such change is made. After approval the terms and conditions of this
Agreement shaW,apply thereto.
8. INTERFERENCE WITH RAIL FACILITIES:
8.1 Although the Pipeline/Crossing herein permitted may not presently interfere with
Licensor's railroad operations or facilities, in the event that the operation, existence or maintenance
of said Pipeline, in the sole judgment of Licensor, causes: (a) interference (physical, magnetic or
otherwise) with Licensor's communication, signal or other wires, powerlines, train control system,
or facilities; or (b) interference in any manner with the operation, maintenance or use of the right-
of-way, track(s), structures, pole line(s), 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 take such remedial action
or make such changes in its Pipeline as may be required in the reasonable judgment of Licensor to
eliminate all such interference. Upon Licensee's failure to remedy or change, Licensor may do so
or contract to do"so, at Licensee's sole cost.
8.2 Without assuming any duty hereunder to inspect Licensee's Pipeline, Licensor
hereby reserves the right to inspect same and to require Licensee to undertake necessary repairs,
maintenance or adjustments to Pipeline, which Licensee hereby agrees to make promptly, at
Licensee's sole cost and expense.
9. RISK, LIABILITY, INDEMNITY:
With respect to the relative risk and liabilities of the parties, it is hereby agreed that:
9.1 Licensee hereby assumes, and, to the fullest extent permitted by State law
(Constitutional or Statutory, as amended), shall defend, indemnify, and hold Licensor harmless
from and against any and all liability, loss, claim, suit, damage, charge or expense which Licensor
may 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 construction, presence, existence, repair, maintenance, replacement,
operations, use or removal 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
willful misconduct or gross negligence of Licensor. HOWEVER, to the fullest extent permitted by
State law, during any period of actual construction, repair, maintenance, replacement or removal of
pipeline, wherein agents, equipment or personnel of Licensee are on the railroad right-of-way,
Licensee's liability hereunder shall be absolute, irrespective of any joint, sole or contributory fault
or negligence of Licensor.
CSXT Form 2037G - Page 6
Revised March, 2005 0
Agreement No, CSX-048733
9.2 Use of Licensor's right-of-way involves certain risks ofloss or damage as a result of
the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of loss and
damage to Licensee~s Property or Pipeline in, on, over or under the Occupancy, including loss of or
any interference with use thereof, regardless of cause, including electrical field creation, fire or
derailment arising out of rail operations. For this Section, the term "Licensee's Property" shall
include pipe contents as well as property of third parties situated or placed upon Licensor's right-
of-way by Licensee or by such third parties at request of or for benefit of Licensee.
9.3 To the extent permitted by State law, as above, Licensee assumes all responsibility
for, and agrees to defend, indemnify and hold Licensor harmless from: (a) all claims, costs and
expenses, including reasonable attorneys' fees, as a consequence of any sudden or nonsudden
pollution of air, water, land and/or ground water on or off the Crossing area, arising from or in
connection with the use ofthis Crossing or resulting from leaking, bursting, spilling, or any escape
of the material transmitted in or through said Pipeline; (b) any claim or liability arising under
federal or state law dealing with either such sudden or nonsudden pollution of air, water, land
and/or ground water arising therefrom or the remedy thereof; and (c) any subsidence or failure of
lateral or subjacent support of the tracks arising from such Pipeline leakage.
9.4 Obligations of Licensee hereunder to defend, indemnify and hold Licensor
harmless shall also extend to companies and other legal entities that control, are controlled by,
subsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the right-
of-way on which the Crossing is located, and their respective officers, agents and employees.
9.5 If a claim is made or action is brought against either party, for which the other party
may be responsible hereunder, in whole or in part, such other party shall be notified and permitted
to participate in the handling or defense of such claim or action.
10. INSURANCE:
10,1 Prior to commencement of surveys, construction or occupation of Crossing
pursuant to this Agreement, Licensee shall procure, and shall maintain during the continuance of
this Agreement, at Licensee's sole cost and expense, a policy of Commercial General Liability
Insurance (CGL), naming Licensor, and/or its designee, as additional insured and covering liability
assumed by Licensee under this Agreement. A coverage limit of not less than THREE MILLION
AND 00/100 U.S. DOLLARS ($3,000,000.00) Combined Single Limit per occurrence for bodily
injury liability and property damage liability is currently required as a prudent minimum to protect
Licensee's assumed obligations. The evidence of insurance coverage shall be endorsed to provide
for thirty (30) days' notice to Licensor, or its designee, prior to cancellation or modification of any
policy. Mail CGL certificate, along with agreement, to CSX Transportation, Inc., Speed Code 1180,
500 Water Street, Jacksonville, FL 32202. On each successive year, send certificate to Speed Code
C907 at the address listed above,
10.2 If said CGL policy does not automatically cover Licensee's contractual liability
during periods of survey, construction, maintenance and continued occupation, a specific
endorsement adding such coverage shall be purchased by Licensee, If said CGL policy is written
on a "claims made" basis instead of a "per occurrence" basis, Licensee shall arrange for adequate
time for reporting losses, Failure to do so shall be at Licensee's sole risk.
CSXT Form 2037G - Page 7
Revised March, 2005 0
Agreement No. CSX-048733
'!
10.3 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee, pursuant to
State Statute(s), may self-insure or self-assume, in any amount( s), any contracted liability arising
under this Agreement, under a funded program of self-insurance, which fund will respond to
liability of Licensee imposed by and in accordance with the procedures established by law.
10.4 Securing such insurance shall not limit Licensee's liability under this Agreement,
but shall be additional security therefor.
10.5 Specifically to cover construction and/or demolition activities within fifty feet
(50') of any operated railroad track( s) or affecting any railroad bridge, trestle, tunnel, track( s),
roadbed, overpass or underpass, Licensee shall first procure, at Licensor's current rate at time of
request, Railroad Protective Liability (RPL) insurance from Licensor to cover the cost of adding
this Crossing, or additional construction and/or demolition activities, to Licensor's Railroad
Protective Liabilitv (RPL) Policy for the period of actual construction. This coverage is offered
at Railroad's discretion and may not be available under all circumstances.
11. GRADE CROSSINGS; FLAGGING:
11.1 Nothing herein contained shall be construed to permit Licensee, or any contractor
of Licensee, to mov;e any vehicles or equipment over the track(s), except at public road crossing(s),
without separate prior written approval of Licensor (CSXT Form 7422).
11.2 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 at the Crossing for protection of operations of Licensor or others
on Licensor's right-of-way, and to keep persons, equipment and materials away from the track(s),
Licensor shall have the right to do so at the expense of Licensee, but Licensor shall not be liable
for failure to do so.
11.3 Subject to Licensor's consent and to Licensor's Railroad Operating Rules and
existing labor agreements, Licensee may provide such flagmen, watchmen, inspectors or
supervisors, during all times of construction, repair, maintenance, replacement or removal, at
Licensee's sole risk and expense; and in such event, Licensor shall not be liable for the failure or
neglect of such watchmen, flagmen, inspectors or supervisors,
12. LICENSOR'S COSTS:
12.1 Any additional or alternative costs or expenses incurred by Licensor to
accommodate Licensee's continued use of Licensor's property as a result oftrack changes or pipe
changes shall also be paid by Licensee.
12.2 Licensor's expense for wages ("force account" work) 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, subject to Licensee's budgetary rules, Licensor may, at
its discretion, request an advance deposit for estimated Licensor costs and expenses.
CSXT Form 2037G - Page 8
Revised March, 2005 0
Agreement No. CSX-048733
12.3 Such expense shall include, but not be limited to, cost of railroad labor and
supervision under "force account" rules, plus current applicable overhead percentages, the actual
cost of materials, and insurance, freight and handling charges on all materials used. Equipment
rentals shall be in accordance with Licensor's applicable fixed rate(s). Licensor may, at its
discretion, require advance deposit for estimated costs and expenses associated herein.
13. DEFAULT, BREACH, WAIVER:
13.1 The proper and complete performance of each covenant of this Agreement shall be
deemed ofthe essence thereof, and in the event Licensee fails or refuses to fully and completely
perform any of said covenants or remedy any breach within thirty (30) days aiter receiving written
notice from Licensor to do so (or within forty-eight (48) hours in the event of notice of a railroad
emergency), Licensor shall have the option of immediately revoking this Agreement and the
privileges and powers hereby conferred, regardless of license fee(s) having been paid in advance for
any annual or other period. Upon such revocation, Licensee shall make removal in accordance with
Article 14,
13.2 No waiver by Licensor of its rights as to any breach of covenant or condition herein
contained shall be construed as a permanent waiver of such covenant or condition, or any
subsequent breach thereof, unless such covenant or condition is permanently waived in writing by
Licensor.
14. TERMINATION, REMOVAL:
14.1 All rights which Licensee may have hereunder shall cease upon the date of:
(a) revocation, (b) termination, (c) subsequent agreement, or (d) Licensee's removal of Pipeline
from the Crossing. However, neither revocation nor termination ofthis Agreement shall 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; neither party, however, waiving any third party
defenses or actions.
14.2 Within thirty (30) days after revocation or termination, Licensee, at its sole risk and
expense, shall (a) remove Pipeline from the right-of-way of Licensor, unless the parties hereto
agree othelWise, (b) restore property of Licensor in a manner satisfactory to Licensor, and (c)
reimburse Licensor any loss, cost or expense of Licensor resulting from such removal.
15. NOTICE:
15,1 Licensee shall give Licensor's Division Engineer (Jacksonville Division, 6735
Southpoint Drive, J-390, Building II, Jacksonville, FL 32216) at least thirty (30) days written notice
before doing any work on Licensor's right-of-way, except that in cases of emergency shorter notice
may be given to said Division Engineer. The rail operations emergency phone number for Licensor
is: 1-800-232-0144. The emergency phone number for Licensee is:
7Z7.S"6z- - lI-7Y' ")
CSXT Form 2037G - Page 9
Revised March, 2005 0
Agreement No. CSX-048733
15.2 All other notices and communications concerning this Agreement shall be addressed
to Licensee at the address above, and to Licensor at the address shown on Page 1, c/o CSXT
Contract Administration, J 180; or at such other address as either party may designate in writing to
the other.
15.3 Unless otherwise expressly stated herein, all such notices shall be in writing and sent
via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be considered
effective upon: '(a) actual receipt, or (b) date of refusal of such delivery.
16. ASSIGNMENT:
16.1 The rights herein conferred are the privileges of Licensee only, and Licensee shall
obtain Licensor's prior written consent to any assignment of Licensee's interest herein; said consent
shall not be unreasonably withheld.
16.2 Subject to Sections 2 and 16.1, this Agreement shall be binding upon and inure to
the benefit ofthe parties hereto and their respective successors or assigns.
16.3 Licensee shall give Licensor written notice of any legal succession (by merger,
. consolidation, reorganization, etc.) or other change of legal existence or status of Licensee, with a
copy of all documents attesting to such change or legal succession, within thirty (30) days thereof.
16.4 Licensor expressly reserves the right to assign this Agreement, in whole or in part, to
any grantee, lessee, or vendee of Licensor's underlying property interests in the Crossing, upon
written notice thereofto Licensee.
,16.5 In the event of any unauthorized sale, transfer, assignment, sublicense or
encumbrance of this Agreement, or any of the rights and privileges hereunder, Licensor, at its
option, may revoke this Agreement by giving Licensee or any such assignee written notice of such
revocation; and Licensee shall reimburse Licensor for any loss, cost or expense Licensor may incur
as a result of Licensee's failure to obtain said consent
17. TITLE:
17.1 Licensee understands that Licensor occupies, uses and possesses lands, rights-of-
way and rail corridors under all forms and qualities of ownership rights or facts, from full fee
simple absolute to bare occupation. Accordingly, nothing in this Agreement shall act as or be
deemed to act as any warranty, guaranty or representation of the quality of Licensor's title for
any particular Right-of-Way in the Crossing occupied, used or enjoyed in any manner by
Licensee under any rights created in this Agreement It is expressly understood that Licensor
does not warrant title to any Right-of-Way in the Crossing, and Licensee will accept the grants
and privileges contained herein, subject to all lawful outstanding existing liens, mortgages and
superior rights in and to the Right-of-Way, and all leases, licenses and easements or other
interests previously granted to others therein,
CSXT Form 2037G - Page 10
Revised March, 2005 121
Agreement No. CSX-048733
17.2 The term "license," as used herein, shall mean with regard to any portion of the
Right-of- W ay which is owned by Licensor in fee simple absolute, or where the applicable law of
the State where the Crossing is located otherwise permits Licensor to make such grants to
Licensee, a "permission to use" the Right-of-Way, with dominion and control over such portion
of the Right-of-Way remaining with Licensor, and no interest in or exclusive right to possess
being otherwise granted to Licensee. With regard to any other portion of Right-of- W ay
occupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives
its exclusive right to occupy the Right-of-Way and grants no other rights whatsoever under this
Agreement, such waiver continuing only so long as Licensor continues its own occupation, use
or control. Licensor does not warrant or guarantee that the license granted hereunder provides
Licensee with all of the rights necessary to occupy any portion of the Right-of-Way. Licensee
further acknowledges that it does not have the right to occupy any portion ofthe Right-of-Way
held by Licensor in less than fee simple absolute without also receiving the consent of the
owner(s) of the fee simple absolute estate. Further, Licensee shall not obtain, exercise or claim
any interest in the Right-of-Way that would impair Licensor's existing rights therein.
17.3 Licensee agrees it shall not have nor shall it make, and hereby completely and
absolutely waives its right to, any claim against Licensor for damages on account of any
deficiencies in title to the Right-of-Way in the event of failure or insufficiency of Licensor's title to
any portion thereof arising from Licensee's use or occupancy thereof.
17.4 Licensee agrees to fully and completely indemnify and defend all claims or
litigation for slander oftitle, overburden of easement, or similar claims arising out of or based upon
Licensee's facilities placement, or the presence of Licensee's facilities in, on, or along the Crossing,
including claims for punitive or special damages.
17,5 Licensee shall not at any time own, or claim any right, title or interest in or to
Licensor's property occupied by the Crossings, nor shall the exercise of this Agreement for any
length oftime give rise to any right title or interest in License, to said property other than the
license herein created.
18. GENERAL PROVISIONS:
18.1 This Agreement, and the attached specifications, contains the entire understanding
between the parties hereto.
18.2 Neither this Agreement, any provision hereof, nor any agreement or provision
included herein by reference, shall operate or be construed as being for the benefit of any third
person.
18.3 Except as otherwise provided herein, or in any Rider attached hereto, neither the
form of this Agreement, nor any language herein, shall be interpreted or construed in favor of or
against either party hereto as the sole drafter thereof.
CSXT Form 2037G - Page 11
Revised March, 2005 0
Agreement No, CSX-048733
~
18.4 This Agreement is executed under current interpretation of applicable Federal, State,
County, Municipal or other local statute, ordinance or law(s). However, each separate division
(paragraph, clause, item, term, condition, covenant or agreement) herein shall have independent and
severable status for the determination oflegality, so that if any separate division is determined to be
void or unenforceable for any reason, such determination shall have no effect upon the validity or
enforceability of each other separate division, or any combination thereof.
18.5 This Agreement shall be construed and governed by the laws ofthe state in which
the Pipeline and Crossing are located.
18.6 If any amount due pursuant to the terms of this Agreement is not paid by the due
date, it will be subject to Licensor's standard late charge and will also accrue interest at eighteen
percent (18%) per annum, unless limited by local law, and then at the highest rate so permitted.
18.7 Licensee agrees to reimburse Licensor for all reasonable costs (including
attorney's fees) incurred by Licensor for collecting any amount due under the Agreement.
18.8 The provisions of this License are' ,considered confidential and may not be
disclosed to a third party without the consent of the other party(s), except: (a) as required by
statute, regulation or court order, (b) to a parent, affiliate or subsidiary company, (c) to an
auditing firm or legal counsel that are agreeable to the confidentiality provisions, or (d) to
Lessees of Licensor's land and/or track who are affected by the terms and conditions of this
Agreement and will maintain the confidentiality of this Agreement.
18.9 Licensor shall refund to Licensee any overpayments collected, plus any taxes paid
in advance; PROVIDED, however, such refund shall not be made when the cumulative total
involved is less than One Hundred Dollars ($100,00).
19. RIDERS:
The following Rider(s) is/are herewith attached and included herein:
[X] Telecommunication Cable or Fiber Optic line
,
CSXT Form 2037G - Page 12
Revised March, 2005 0
Agreement No. CSX-048733
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
(each of which shall constitute an original) as of the effective date of this Agreement.
Witness for Licensor:
Witness for Licensee:
Countersigned:
Frank V. Hibbard
Mayor
as to form:
Leslie K. Dougal
Assistant City At't
CSX TRANSPORTATION, INC.
By:
Print/Type Name:
Print/Type Title:
CITY OF CLEARWATER
By:
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 ofthis Agreement.
Print/Type Name:
William B. Horne II
Print/Type Title:
City Manager
Tax ill No.
Authority under Ordinance or
Resolution Noo_ 05-34
dated
ATTEST:
Cynthia E. Goudeau
City Clerk
COMMUNICATIONS CABLE OR FIBER OPTIC LINE PROTECTION RIDER
,
1. 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 first giving at least thirty (30) days written notice to the following Parallel Cable
Occupier(s):
("MCI")
A TTN: Investigations
Mr. Dean Boyers
WorldcomlMCI Telecommunications Corporation
2400 North Glenville Drive
Richardson, TX 75082-4354
Phone No. (800) 624-9675
or (972) 729-6016
(NOTE: WRITTEN NOTICE TO MCI IS ALSO REQUIRED)
'\ f.,
.i The notice shall be accompanied by drawing(s) showing the general plan, elevation,
details'and methods of Licensee's proposed construction, and the location of Occupier(s)' cable or
facilities m relation to Licensee's proposed construction,
;,3;~ Prior to any construction, Licensee must locate and identify, any existing cable,
wire or fiber optic line (including any appurtenances thereto) of said cable occupier( s) traversing or
located in, on, or immediately adjacent to the proposed Crossing, at Licensee's sole risk
4. Any changes, alteration, relocation or protection ofwire(s), cable(s) or facilities of
such OC~llpier(s), required by said Occupier(s), shall be at Licensee's sole expense except as
otherwi~enegotiated between Licensee and said Occupier(s).
,5. Licensee shall be solely responsible and liable for any damage to (e,g., cutting,
dislocating, etc.) said wire(s) or cable(s), and appurtenances thereto, resulting in any way from
Licenses;'s exercise of rights or privileges under this Agreement.
(i Licensee shall defend, indemnify and hold Licensor hannless from any such
damage claims and any relocation or protection costs of said Occupier(s).
CSX TRANSPORTATION, INC.
Licensor:
(mitial)
(Date)
CITY OF CLEARWATER
Licensee:
(mitial)
(Date)
" APPLICATION ~~:::/;.~:~~S~~R PARALLELIN<t':~E ;~ IE ~ Wi IE r;:
I ,'., I I
Submit one original and one copy of both the application and drawing along with a $750.00 i . !:~.\ ; II
nonrefundable ~llPPliCation220F2ee to CSX Transportation, Property Services 1180, Soo Water J Uil. YAY 2 2005 IL
Street, JacksonVl e, FL 3 . 1
Application and plans must be approved and written authority received from the Railroad be re- csy TRA'''~')O'HATiGN
construction is begun. Your proposal and construction must be in accordance with CSXT's PR'oPER1:Y' SERVICES
Specifications and any current governing laws or regulations. Note: Specifications furnish ID
the Application Package are to be used as a guideline only. CSXT reserves the right to approve
or decline any application. .
PLEASE SIGN BEFORE COMPLETING: Agreement No.: r.J 'I.--o'T frl3 .3
e--:'+
..... ,
, i __ ' r ." , .
FORM CSXT 7455 - Rev. IJOlJOS (page I of2)
I affirm the information I am furnishing in this application will comply with the current CSX Standards.,governing
laws or regulations, and accurately reflects the proposed construction plans: '
, Signature: Application Date: 4-/1'1' /o..r
!Project Owner Information:' 0 Check here if agreement should be mailed to this address
1. Complete Leal Name of .DOlicant as it would aonear in a !enl docllmP.nt (Inaccurate iDformaUOft will delay
vour reauest):
City of Clearwater
2. Company Contact Name: Michael Quillen, P.E.
Title: City Enaineer
3. Telephone: C1Jj) S62-4743 ,Fax: (727)S62-47SS E-Mail: mquillen~c1earwater-n.com
Company Emergency Contact Number (in case of derailment, pipe failure, etc.):
4. Street Address: 100 S. Mvrtle Avenue #200 City: Clearwater State: ~_ Zip: 33637
S. Type of business:
o 'Colp()ration (State of incorporation )
o Pau1nership (Type and State of Partnership )
o IndiViduaJ 0 Devel er :J( Municipality 0 O1her
o Check here if agreement should be ,mailed to this ac:ldI'ess
6. Company ,Name: Avres Associates IDe.
7. Comp.y Contact Name: Alex GhafarL P.E. Title: Project Manager
8. TeJephone:'CalJ) 978-8688 ' Fax: (813) 978-9369 E-Mail: ghafariA@AyresAssOCiates.com
9. Street Address: 'ver P Suite 200 City: Tam a State: FL 7Jp: 33637
fProject Infonnation~ (Note: Metric Info17lllltion will NOT be accepted.)
:~: :::.~ms:;~";,.,,;~=:.==~ ~ JI,J~toOl<ialiDg
12. If thisinstallatioB is lobe a supplement to your master (general) agreelnen~ furnish: .
Agreement Number: Date:
13. Your Reference Number. 03-0030-EN
14. Work to be performed by:
o Applicant's employees Is Applicant an Aegis member? 0 Yes 0 No
. Contractor Contractor Name: TBD
15. Town Location: 'el~.& ..ater County: PineUas StatelProvince: FL
(Fonn continued on Page 2)
o'eel Information Cont'd.
FORM CSXT 7455 - Rev. 1/01105 (page 2 of2)
(! 'frO~~33
16. Product to be Conveyed: Stormwater
Temperature: Ambient
17. Maximum Working ~ssure: N/A
18. Location ofShut-OffValves: N/A
19. Number: 0 Manholes_X Other (describe) (3)36" RCP's (Class V)
to be located within Railroad corridor. Manholes shaD be Dash with top of ground and dlmeDSioDS
of andDary structures are required on drawing.
20. Distance from manholes/other to nearest track:
21. Angle of Crossing: 900 Number of Tracks to be crossed:' 2
22. PIPE SPECIFICATIONS: CARRIER PIPE:
Material Reinforced Concrete
Material Specifications & Grade Class V
Minimum Yield Strength of Material PSI 3000
Inside Diameter 36"
Walllbickness 4"
Outside Diameter 44"
Type of Seam
Kind of Joints
TotalLengtb Within Railroad RIW
Tunneling (Liner Plates) Note:
Flammable: 0 Yes N No
Field Test Pressure:
Type Test:
CASING PIPE:
23.
24.
25.
,26.
27.
28.
Vents: Number Size
Seals: 0 One End 0 Both Ends
Bury depth: Base of rail to top of casing: 3 feet 10
Not beneath traclcs: feet inches
(Below ditches) 0 feet, , 0 inches
Cathodic Protection: 0 Yes Ja: No Protective Coating: 0 Yes (Kind) . No
MetbodofinstalIation: Jack & Bore " " , , (Note: Directional borios is prohibited. See specs)
Location of boring pits from adjacent track @ 900: Launching Pit: 18 ft., Receiving Pit: 17 ft.
Temporary track support or riprapping required? 0 Yes ]( No (Describe and Detail on Drawing)
Wires, poles, obstructioDS to be relocated? 0 Yes :x No (Describe and Detail OD Drawing)
Is this both a Crossing and Parallelism? 0 Yes 11 No
Crossing location: 156 feet N (direction) from Railroad Milepost: 883
lfknown: Valuation Station: Valuation Map Number:
lfknown: LatitudelLongitude:
lflmown: Street Address ofCrossingIParallelism:N. of the Intersection ofWoodlaWll St. & RR
29. Parallelism location: Beginning: feet (direction) ftom RR Milepost:
and Ending: feet (direction) from RR Milepost:
30. Total length on Railroad RIW: 50 ft. L<mgth'Crossmg: 60 ft. Length Paralleling:
31. Will line be entirely within a public road RIW? 0 Yes . No DOT/AAR Crossing No.:
**lfyou answered yes, road nametoumber, and width of public right-of-way are required on drawing
32. a) Will this occupancy connect to an existing facility within Railroad corridor? . Yes 0 No
b) If Yest name facility,owner(s): Ci of Clearwater
Tongne & Groove
47LF
A~ch man.....ctarer'...OD detail .nd eomDutatio.. th.t
inelude Dlate thickDesa and ft2e..
Height above ground
inches
CLf..ff< Lvlt"'l.~ No. of Crossings: '1
Valuation SectionlMap No.:
, .' 12-2 J ~ ·
Roadmaster No.: Pi.'
Conti'. Type: p:z:.
Fiber?
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HORIZONTAL: 1" = 20'
VERTICAL: 1" =4'
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>- 8875 HIDDEN RNER PAFOONAY. SUITE 200
c; TAMPA, FLORIDA 33637
,; (813)978-8688 FAX: (813)978-9369
SCALE:
VARIES
CSX PERMIT EXHIBIT
PREPA~ORE - PERPENDICULAR CROSSING
6XIIIBIT,
DATE:
04-28-05
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PROJECT:
66-0115,01
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"
CSXT Form ROEl - Page 1
Revised September 2004 "
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, whosemailingaddressis100S.MyrtleAvenue.Suite #200, Claerwater, Florida 33637,
hereinafter called "Licensee," WI1NESSETH:
WHEREAS, Licensee has submitted a written application to CSXT requesting
permission to enter CSXT's property located at Clearwater, County of Pine lIas, 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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CII Y OF CLEM it ':-'::---.1
-BJ811C WORKS AD~l!~ATlON
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CSXT Form ROEl - Page 2
Revised September 2004 "
Agreement No. CSX-048893
~
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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 final, unappealable judgment of a court of competent jurisdiction,
this Section shall be construed so as to be enforceable to the maximwn 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
Mfiliates, 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 of CSXT. 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! - 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. Li~ensee 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 ofbill(s) therefor.
8. ENVIRONMENTAL: This Agreement does not include and expressly eIcludes 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
Project.
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 pennit(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 1 (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, tenn 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 fmally detennined 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 1, 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 ofCSXT, 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.
..
CSXT Form ROE! - Page 7
Revised September 2004 '"
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:
CSX TRANSPORTATION, INC.
By:
Print/Type Name:
Print/Type Title:
Witness for Licensee:
CITY OF CLEARWATER
By:
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
Print/Type Title:
City Manager
Frank V. Hibbard
Mayor
Tax ID No.
Approved as to form:
Authority under Ordinance or
Resolution No. 05-34
dated
Attest:
Cynthia E. Goudeau
City Clerk
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