FACILITY ENCROACHMENT AGREEMENT - CSX792133AGREEMENT NO. CSX792133
FACILITY ENCROACHMENT AGREEMENT
THIS AGREEMENT, made and effective as of Gt+01311e- 5 ,A61.2015, 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, FLORIDA, d/b /a CLEARWATER GAS SYSTEM, a municipal corporation,
political subdivision or state agency, under the laws of the State of Florida, whose mailing
address is 400 North Myrtle Avenue, Clearwater, Florida 33755, hereinafter called "Licensee,"
WITNESSETH:
WHEREAS, Licensee desires to construct (unless previously constructed and designated
as existing herein), use and maintain the below described facility(ies), hereinafter called
"Facilities," over, under or across property owned or controlled by Licensor, at the below
described location(s):
1. One (1) six inch (6 ") diameter pipeline crossing, solely for the conveyance of natural gas,
located at or near Oldsmar, Pinellas County, Florida, Jacksonville Division, Clearwater
Subdivision, Valuation Station 717, Milepost SY- 862.27, Latitude N28:02:18.30, Longitude
W82:39:43.18;
hereinafter, called the "Encroachment," as shown on print(s) labeled Exhibit "A," attached hereto
and made a part hereof;
NOW, THEREFORE, in consideration of the mutual covenants, conditions, terms and
agreements herein contained, the parties hereto agree and covenant as follows:
1. LICENSE:
1.1 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 Encroachment 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 the Facilities at the Encroachment above for the term herein stated, and to remove
same upon termination.
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1.2 The term Facilities, as used herein, shall include only those structures and
ancillary facilities devoted exclusively to the transmission usage above within the Encroachment,
and as shown on attached Facility Application Form and plan(s).
1.3 No additional structures or other facilities shall be placed, allowed, or
maintained by Licensee in, upon or on the Encroachment except upon prior separate written
consent of Licensor.
1.4 The term "Contractor" shall mean Licensee's agent, contractor, developer,
and/or designees performing any of the work related to the Facilities as provided in this
Agreement. Prior to any work described in this Agreement is performed by Contractor, Licensee
shall require Contractor to execute and deliver to Licensor the Contractor Acceptance Form,
attached to and made part of this Agreement as Contractor Acceptance Form, to acknowledge
Contractor's agreement to observe and abide by terms and conditions of this Agreement.
2. ENCROACHMENT FEE; TERM:
2.1 Licensee shall pay Licensor a one -time nonrefundable Encroachment Fee of
FIVE HUNDRED AND 00 /100 U.S. DOLLARS ($500.00) upon execution of this Agreement.
Licensee agrees that the Encroachment 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 Facilities or Encroachment.
2.3 This Agreement shall terminate as herein provided, but shall also terminate
upon: (a) Licensee's cessation of use of the Facilities or Encroachment for the purpose(s) above;
(b) removal of the Facilities; (c) subsequent mutual consent; and/or (d) failure of Licensee to
complete installation within five (5) 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 Facilities and appurtenances, and/or maintenance thereof, or
for any public works project of which said Facilities is a part.
3. CONSTRUCTION, MAINTENANCE AND REPAIRS:
3.1 Licensee shall construct, maintain, relocate, repair, renew, alter, and/or remove
the Facilities, 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), or Licensee's
particular industry, National Electrical Safety Code, or any governmental or regulatory body
having jurisdiction over the Encroachment.
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3.2 Location and construction of Facilities shall be made strictly in accordance
with design(s) and specifications furnished to and approved by Licensor and of material(s) and
size(s) appropriate for the purpose(s) above recited.
3.3 All of 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.
3.4 In the installation, maintenance, repair and/or removal of said Facilities,
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 the Facilities, 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 Facilities, 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 Encroachment, nor any approval given or
supervision exercised by Licensor, shall be construed as an admission of liability or
responsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or
responsibility of Licensee under this Agreement.
3.8 All work on the Encroachment shall be conducted in accordance with
Licensor's safety rules and regulations.
3.9 Licensee hereby agrees to reimburse Licensor any actual loss, cost or expense
(including losses resulting from train delays and/or inability to meet train schedules) arising
directly 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 the Facilities or
Encroachment.
4. PERMITS, LICENSES:
4.1 Before any work hereunder is performed, or before use of the Encroachment
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
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AGREEMENT NO. CSX792133
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 1926.651(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.
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
Licensor may approve.
5.2 After construction or maintenance of the Facilities, Licensee shall:
(A) Restore any 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 any
underground Facilities or related facilities.
5.3 Licensee shall be solely responsible for any subsidence or failure of lateral or
subjacent support in the Encroachment 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 of track(s) or other facilities, or in the event
future use of Licensor's rail corridor or property necessitate any change of location, height or
depth in the Facilities or Encroachment, Licensee, at its sole cost and expense and within thirty
(30) days after notice in writing from Licensor, shall make changes in the Facilities or
Encroachment to accommodate such track(s) or operations.
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6.2 If Licensee fails to do so, Licensor may make or contract to make such
changes at Licensee's cost.
7. FACILITY CHANGES:
7.1 Licensee shall periodically monitor and verify the depth or height of the
Facilities or Encroachment in relation to the existing tracks and facilities, and shall relocate the
Facilities or change the Encroachment, at Licensee's expense, should such relocation or change
be necessary to comply with the minimum clearance requirements of Licensor.
7.2 If Licensee undertakes to revise, renew, relocate or change in any manner
whatsoever all or any part of the Facilities (including any change in voltage or gauge of wire or
any change in circumference, diameter or radius of pipe 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 such change. After approval, the terms and
conditions of this Agreement shall apply thereto.
8. INTERFERENCE WITH RAIL FACILITIES:
8.1 Although the Facilities/Encroachment herein permitted may not presently
interfere with Licensor's railroad or facilities, in the event that the operation, existence or
maintenance of said Facilities, in the sole judgment of Licensor, causes: (a) interference
(including, but not limited to, physical or interference from an electromagnetic induction, or
interference from stray or other currents) with Licensor's power lines, communication, signal or
other wires, train control system, or electrical or electronic apparatus; or (b) interference in any
manner, with the operation, maintenance or use of the rail corridor, 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 make such changes in its Facilities or installation, as may be
required in the reasonable judgment of the 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 the Facilities, Licensor hereby
reserves the right to inspect same and to require Licensee to undertake repairs, maintenance or
adjustments to the Facilities, 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 To the limits as set forth by State law (constitutional or statutory, as amended),
Licensee hereby agrees to, 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
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AGREEMENT NO. CSX792133
(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 the Facilities 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.
9.2 Use of Licensor's rail corridor involves certain risks of loss 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 the Facilities in, on, over or under the Encroachment,
including loss of or any interference with use or service thereof, regardless of cause, including
electrical field creation, fire or derailment resulting from rail operations. For this Section, the
term "Licensee's Property" shall include property of third parties situated or placed upon
Licensor's rail corridor by Licensee or by such third parties at request of or for benefit of
Licensee.
9.3 To the fullest 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 Encroachment area,
arising from or in connection with the use of this Encroachment or resulting from leaking,
bursting, spilling, or any escape of the material transmitted in or through the Facilities; (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 Facilities
leakage.
9.4 Notwithstanding Section 9.1, Licensee also expressly assumes all risk of loss
which in any way may result from Licensee's failure to maintain either required clearances for
any overhead Facilities or the required depth and encasement for any underground Facilities,
whether or not such loss(es) result(s) in whole or part from Licensor's contributory negligence or
joint fault.
9.5 Obligations of Licensee hereunder to release, 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 rail
corridor on which the Encroachment is located, and the officers, employees and agents of each.
9.6 If a claim is made or action is brought against Licensor, and/or its operating
lessee, for which Licensee may be responsible hereunder, in whole or in part, Licensee shall be
notified to assume the handling or defense of such claim or action; but Licensor may participate
in such handling or defense.
9.7 Notwithstanding anything contained in this Agreement, the limitation of
liability contained in the state statutes, as amended from time to time, shall not limit Licensor's
ability to collect under the insurance policies required to be maintained under this Agreement.
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10. INSURANCE:
10.1 Prior to commencement of surveys, installation or occupation of premises
pursuant to this Agreement, Licensee shall require its Contractor to procure and shall maintain
during the time of construction, at its sole cost and expense, a policy of
(i) Statutory Worker's Compensation and Employers Liability Insurance with
available limits of not less than ONE MILLION AND 00 /100 U.S. DOLLARS ($1,000,000.00),
which 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 FIVE MILLION AND 00 /100 U.S. DOLLARS ($5,000,000.00),
naming Licensor, and/or its designee, as additional insured and in combined single limits for
bodily injury and property damage and covering the contractual liabilities assumed under this
Agreement. 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
RenewalCOI @csx.com.
(iii) Business automobile liability insurance with available limits of not less than ONE
MILLION AND 00 /100 U.S. DOLLARS ($1,000,000.00) combined single limit for bodily
injury and/or property damage per occurrence;
(iv) Such other insurance as Licensor may reasonably require.
10.2 If Licensee's Contractor's existing CGL policy(ies) do(es) not automatically
cover Licensee's contractual liability during periods of survey, installation, maintenance a
specific endorsement adding such coverage shall be purchased by Licensee's Contractor. If said
CGL policy is written on a "claims made" basis instead of a "per occurrence" basis, Licensee's
Contractor shall arrange for adequate time for reporting losses. Failure to do so shall be at
Licensee's Contractor's sole risk.
10.3 Licensor, or its designee, may at any time request evidence of insurance
purchased by Licensee and/or Licensee's Contractor to comply with this Agreement. Failure of
Licensee to comply with Licensor's request shall be considered a default by Licensee.
10.4 Securing such insurance shall not limit Licensee or it Contractor's Liability
under this Agreement, but shall be security therefor.
10.5 (A) In the event Licensee finds it necessary to perform construction or
demolition operations 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: (a) notify
Licensor; and (b) require its contractor(s) performing such operations to procure and maintain
during the period of construction or demolition operations, at no cost to Licensor, Railroad
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Protective Liability (RPL) Insurance, naming Licensor, and/or its designee, as Named Insured,
written on the current ISO /RIMA Form (ISO Form No. CG 00 35 01 96) with limits of FIVE
MILLION AND 00 /100 U.S. DOLLARS ($5,000,000.00) per occurrence for bodily injury and
property damage, with at least TEN MILLION AND 00 /100 U.S. DOLLARS ($10,000,000.00)
aggregate limit per annual policy period, with Pollution Exclusion Amendment (ISO CG 28 31
11 85) if an older ISO Form CG 00 35 is used. The original of such RPL policy shall be sent to
and approved by Licensor prior to commencement of such construction or demolition. Licensor
reserves the right to demand higher limits.
(B) At Licensor's option, in lieu of purchasing RPL insurance from an insurance
company (but not CGL insurance), Licensee may pay Licensor, at Licensor's current rate at time
of request, the cost of adding this Encroachment, 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 Licensor's discretion and may not be available under all
circumstances.
10.6 Notwithstanding the provisions of Sections 10.1 and 10.2, Licensee only,
pursuant to State Statute(s), may self - insure, self - assume or provide general liability coverage, in
any amount(s), any contracted liability arising under this Agreement, under a funded insurance
program, which fund will respond to liability of Licensee imposed by and in accordance with the
procedures established by law.
11. GRADE CROSSINGS; FLAGGING:
11.1 Nothing herein contained shall be construed to permit Licensee or Licensee's
contractor 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).
11.2 If Licensor deems it advisable, during any construction, maintenance, repair,
renewal, alteration, change or removal of said Facilities, to place watchmen, flagmen, inspectors
or supervisors for protection of operations of Licensor or others on Licensor's rail corridor at the
Encroachment, and to keep persons, equipment or 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
labor agreements, Licensee may provide 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 of track changes or wire
changes shall also be paid by Licensee.
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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. 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 material used. Equipment
rentals shall be in accordance with Licensor's applicable fixed rate. 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 fails or refuses to fully and
completely perform any of said covenants or remedy any breach within thirty (30) days after
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 encroachment 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.
13.3 Neither the failure of Licensor to object to any work done, material used, or
method of construction or maintenance of said Encroachment, nor any approval given or
supervision exercised by Licensor, shall be construed as an admission of liability or
responsibility by Licensor, or as a waiver by Licensor of any of the obligations, liability and/or
responsibility of Licensee under this Agreement.
14. TERMINATION, REMOVAL:
14.1 All rights which Licensee may have hereunder shall cease upon the date of
(a) termination, (b) revocation, or (c) subsequent agreement, or (d) Licensee's removal of the
Facility from the Encroachment. However, neither termination nor revocation of this Agreement
shall affect any claims and liabilities which 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.
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14.2 Within thirty (30) days after revocation or termination, Licensee, at its sole
risk and expense, shall (a) remove the Facilities from the rail corridor of Licensor, unless the
parties hereto agree otherwise, (b) restore the rail corridor 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 at least thirty (30) days written notice before
doing any work on Licensor's rail corridor, except that in cases of emergency shorter notice may
be given. Licensee shall provide proper notification as follows:
a. For non - emergencies, Licensee shall complete and submit Licensor's
Outside Party Number Request Form (Form # OP) by facsimile, to facsimile numbers: (904)
245 -3692. Licensee may also scan and email a completed form to email address:
OP_Request @csx.com. A blank form, as well as additional instructions and information, can be
obtained from Licensor's web site, via web link:
http://www.csx.com/ share/ wwwcsx_ mura/assets/File /Customers/Non-
freight_ Services / Property_ Real_Estate /Outside_Party_Number Request_Form.pdf.
b. For emergencies, Licensee shall complete all of the steps outlined in
Section 15.1 a. above, and shall also include detailed information of the emergency. Licensee
shall also call and report details of the emergency to Licensor's Rail Operations Emergency
Telephone Number: 1- 800 - 232 -0144. In the event Licensor needs to contact Licensee
concerning an emergency involving Licensee's Facility(ies), the emergency phone number for
Licensee is: 727 - 744 -5254.
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 Management, 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
considered delivered 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 of the parties hereto and their respective successors or assigns.
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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
Encroachment, upon written 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 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 Encroachment or segment of Rail Corridor 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 Rail Corridor 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 Rail Corridor, and all leases, licenses and easements or other
interests previously granted to others therein.
17.2 The term "license," as used herein, shall mean with regard to any portion of
the Rail Corridor which is owned by Licensor in fee simple absolute, or where the applicable law
of the State where the Encroachment is located otherwise permits Licensor to make such grants
to Licensee, a "permission to use" the Rail Corridor, with dominion and control over such
portion of the Rail Corridor remaining with Licensor, and no interest in or exclusive right to
possess being otherwise granted to Licensee. With regard to any other portion of Rail Corridor
occupied, used or controlled by Licensor under any other facts or rights, Licensor merely waives
its exclusive right to occupy the Rail Corridor 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 Rail Corridor. Licensee
further acknowledges that it does not have the right to occupy any portion of the Rail Corridor
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 Rail Corridor that would impair Licensor's existing rights therein.
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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 Rail Corridor 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 of title, overburden of easement, or similar claims arising out of or based
upon the Facilities placement, or the presence of the Facilities in, on or along any
Encroachment(s), 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 Encroachments, nor shall the exercise of this Agreement for
any length of time give rise to any right, title or interest in Licensee to said property other than
the license herein created.
17.6 Nothing in this Agreement shall be deemed to give, and Licensor hereby
expressly waives, any claim of ownership in and to any part of the Facilities.
17.7 Licensee shall not create or permit any mortgage, pledge, security, interest,
lien or encumbrances, including without limitation, tax liens and liens or encumbrances with
respect to work performed or equipment furnished in connection with the construction,
installation, repair, maintenance or operation of the Facilities in or on any portion of the
Encroachment (collectively, "Liens or Encumbrances "), to be established or remain against the
Encroachment or any portion thereof or any other Licensor property.
17.8 In the event that any property of Licensor becomes subject to such Liens or
Encumbrances, Licensee agrees to pay, discharge or remove the same promptly upon Licensee's
receipt of notice that such Liens or Encumbrances have been filed or docketed against the
Encroachment or any other property of Licensor; however, Licensee reserves the right to
challenge, at its sole expense, the validity and/or enforceability of any such Liens or
Encumbrances.
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.
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AGREEMENT NO. CSX792133
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 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 Facilities and Encroachment 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:
19.1 The following Rider(s) is /are herewith attached and included herein:
[X] Telecommunication Cable or Fiber Optic Line
[X] Contractor Acceptance Form
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AGREEMENT NO. CSX792133
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.
W. for Licensor: CSX T
y d
COUNTERSIGNED:
George N. Cretekos, Mayor
APPROVED AS TO FORM:
Laura Mahony, Assistant City A
B:
N, INC
David E. Elder
Print/Type Name: Director
Print/Type Title:
CITY OF CLEARWATER, FLORIDA
William B. Horne II, City Manager
ATTEST:
ey 'Coe = Rosemarie Call, City Clerk'—)
Page 14 of 16 0
AGREEMENT NO. CSX792133
CONTRACTOR ACCEPTANCE
This Rider is and shall be a part of Agreement CSX792133, and is incorporated therein.
To and for the benefit of CSX Transportation, Inc., ( "Railroad ") and to induce Railroad to permit
Contractor on or abo y t the Railroad's property for the purposes of performing work in accordance with
the agreement dated , 2015, between Utility and Railroad, (the "Agreement "),
Contractor hereby agrees to abide by and perform all applicable terms of the Agreement, including, but
not limited to Sections 3, 9, 10, and 19 of the Agreement, and the Contractor Insurance Requirements
listed below.
CONTRACTOR INSURANCE REQUIREMENTS:
Railroad requires that the following insurance coverage be provided prior to any entry and/or work within
Railroad's property and maintained by the Contractor until completion of the work. Railroad or its
designee, may at any time request evidence of insurance purchased by Contractor to comply with the
Agreement. Securing such insurance shall not limit Contractor's liability under the Agreement but shall
be a security therefor.
(i) Statutory Worker's Compensation and Employers Liability Insurance with
available limits of not less than ONE MILLION AND 00 /100 U.S. DOLLARS ($1,000,000.00), which
must contain a waiver of subrogation against Railroad and its Affiliates;
(ii) Commercial General Liability coverage (inclusive of contractual liability) with available limits
of not less than FIVE MILLION AND 00 /100 U.S. DOLLARS ($5,000,000.00), naming Railroad, and /or
its designee, as additional insured and in combined single limits for bodily injury and property damage
and covering the contractual liabilities assumed under the Agreement. The evidence of insurance
coverage shall be endorsed to provide for thirty (30) days' notice to Railroad, or its designee, prior to
cancellation or modification of any policy. If Contractor's existing CGL policy(ies) do(es) not
automatically cover Contractor's contractual liability during periods of survey, installation, maintenance
and continued occupation, a specific endorsement adding such coverage shall be purchased by Contractor.
If said CGL policy is written on a "claims made" basis instead of a "per occurrence" basis, Contractor
shall arrange for adequate time for reporting losses. Failure to do so shall be at Contractor's sole risk;
(iii) Business automobile liability insurance with available limits of not less than ONE MILLION
AND 00 /100 U.S. DOLLARS ($1,000,000.00) combined single limit for bodily injury and /or property
damage per occurrence;
(iv) Such other insurance as Railroad may reasonably require.
Utility may require its Contractor performing the work cover its requirement for Railroad Protective
Liability ( "RPL ") Insurance coverage. In the event Contractor will be responsible for procuring and
maintaining RPL the following shall apply:
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AGREEMENT NO. CSX792133
Contractor shall procure and maintain during the period of construction or demolition
operations, at no cost to Railroad, Railroad Protective Liability (RPL) Insurance, naming Railroad, and/or
its designee, as Named Insured, written on the current ISO/RIMA Form (ISO Form No. CG 00 35 01 96)
with limits of FIVE MILLION AND 00 /100 U.S. DOLLARS ($5,000,000.00) per occurrence for bodily
injury and property damage, with at least TEN MILLION AND 00 /100 U.S. DOLLARS
($10,000,000.00) aggregate limit per annual policy period, with Pollution Exclusion Amendment (ISO
CG 28 31 11 85) if an older ISO Form CG 00 35 is used. The original of such RPL policy shall be sent to
and approved by Railroad prior to commencement of such construction or demolition. Railroad reserves
the right to demand higher limits
At Railroad's option, in lieu of purchasing RPL insurance from an insurance company (but
not CGL insurance), Contractor may pay Railroad, at Railroad's current rate at time of request, the cost of
adding this Encroachment, or additional construction and /or demolition activities, to Railroad'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.
CONTRACTOR:
By:
Name:
Title:
Date:
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