HomeMy WebLinkAboutItem 08 Approval of the Florida Midland Railroad Company License Agreement for Downtown Stormwater Park Improvements OC(*)()
florida
AGENDA ITEM COVER SHEET
Meeting Date: April 6, 2021
Item # 4
Reviewed By:
Contact Name: Milen Womack Department Director: Ste Kru
Contact Number: 6013 City Manager:
Subject: Florida Midland Railroad Company License Agreement for Dow town Stormwater
Park Improvements
Background Summary:
The City Commission approved the Downtown Master Plan in October 2016 and the project list
associated with the plan. A key element of the Plan is the development of the Downtown Stormwater
Park which will provide stormwater retainage and treatment for much of the downtown area. The
drainage basin of the Downtown Stormwater Park includes the area bounded between W Oakland Ave
and Floral St on the north and south and N Bluford Ave and the Kissimmee Ave railroad tracks on the
east and west.
The Downtown Stormwater Park will also provide a connection point on the west side of the railroad
tracks on Franklin Ave for future connection of developments. The City will have to enter into an
agreement with Florida Midland Railroad Company in order to install the stormwater pipe under the
railroad tracks. Typically, the license agreements are structured as annual payments; however, for this
crossing Florida Midland Railroad Company has proposed a one-time license fee. Public Works
recommends approval of this one-time license fee.
Issue:
Request the City Commission to approve and sign the License Agreement with Florida Midland Railroad
Company
Recommendations:
Recommend the City Commission approve and sign the License Agreement with Florida Midland
Railroad Company.
Attachments:
License Agreement with Florida Midland Railroad Company, Inc.
Financial Impact:
One-time license fee of Fourteen Thousand Seven Hundred Twenty-Seven and 34/100 ($14,727.34)
Dollars. Available funding comes from the Master Stormwater Project, Job Number 18501.
Type of Item: (please mark with an 'x')
Public Hearing Fof Clerk's Dept Use:
Ordinance First Reading X Consent Agenda
Ordinance Second Reading / Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion& Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. Q.,` N/A
Review ed by ( ) N/A
2
OCOE-20011 A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made and entered into as of this day of
, 2021 by and between FLORIDA CENTRAL RAILROAD COMPANY,
INC., a Florida corporation with an address of 3001 West Orange Avenue, Apopka, FL
32703 ("FCEN") and CITY OF OCOEE., a Florida municipal corporation with an
address of 150 Lakeshore Dr., Ocoee Fl 37461 (the "Licensee").
Preliminary Statement
A. Licensee, for the economical and convenient conduct of Licensee's business,
desires to obtain from FCEN a license to use a portion of FCEN's right of way
leased to FCEN pursuant to a lease agreement between FCEN and CSX
Transportation, Inc. (the "CSX Lease"), without establishing, claiming, or
possessing any estate or interest therein (the "License"), for the benefit of
Licensee.
B. FCEN has the right,power and authority to enter into this License Agreement,
pursuant to the CSX Lease.
C. Licensee desires to construct and maintain an underground storm water pipe (the
"Pipe") within the License Area, defined below.
NOW THEREFORE, in consideration of the mutual promises contained herein the
parties agree as follows:
1. GRANT OF LICENSE
FCEN hereby grants unto Licensee, its successors and assigns a License, with
authority to enter upon, construct and maintain, pursuant to this License, the Pipe
under the FCEN's tracks and right of way in the vicinity of Franklin St. Ocoee,
Orange County, Florida, approximately forty-four(44') feet north of Railroad Mile
Post AVB 832.60, DOT Crossing 621880W (the "License Area"), described on
Exhibit A, which is attached hereto and incorporated herein. In addition,
improvements will be made to the headwall of the culvert that runs under railroad
property between Franklin St. DOT 621880W and Oakland St. DOT 621881D
2. SUBJECT TO MASTER LEASE AGREEMENT
This License shall be subject to the terms and conditions of the CSX Lease, a
memorandum of which is recorded in the public records.
3. STATUS OF SUBCONTRACTORS
For purposes of this Agreement, all references to Licensee shall include Licensee, its
contractors, subcontractors, agents, officers, employees and others acting under its or
their authority.
657845.1
4. USE
Licensee shall use the License Area for the construction, maintenance and operation
of the Pipe that is the subject of this Agreement only for the conveyance of
wastewater,and any other purpose or use is prohibited. Notwithstanding any contrary
provisions herein, Licensee agrees that this License shall not be used in any way that
will inhibit the use of the License Area by FCEN, its successors or assigns. The Pipe
shall be constructed,maintained and operated by Licensee in accordance with Exhibit
A.
5. CONDUCT OF WORK
All work connected with the construction,maintenance,repair,renewal,modification,
relocation, reconstruction or removal of the said Pipe shall be undertaken within the
License Area. However,no such work shall be performed without prior written notice
to, and approval of, FCEN's General Manager. Any and all work shall be performed
in a manner satisfactory to the FCEN. All work shall be performed at times and in a
manner which shall not disturb the reasonable operation of the business of FCEN. At
the sole discretion of FCEN's General Manager, flag protection services may be
required during construction and periods of maintenance. Licensee, in accordance
with Paragraph 14 below, shall be responsible for all costs and expenses of any
flagging service.
6. FEE
Licensee shall pay to FCEN for this License a one-time fee of Fourteen Thousand
Seven Hundred Twenty-Seven and 34/100 ($14,727.34) Dollars (the "Fee").
Licensee shall pay the Fee to FCEN within thirty (30) days after presentation of an
invoice. Notwithstanding any contrary provisions herein, Licensee shall not access,
enter upon, or use the License Area until FCEN receives the Fee from Licensee.
7. TERM
The term of the License this Agreement shall run for a period of one (1) year from
the above date. Thereafter, this Agreement shall automatically renew for
successive one-year periods unless or until it is terminated as provided below. In
no event shall the Term of the License or this Agreement extend beyond the term
of the CSX Lease.
8. TERMINATION
Notwithstanding any contrary provisions contained herein, this Agreement may be
terminated at any time by either FCEN or Licensee by giving to the other party thirty
(30) days advance written notice of its intention to so terminate. In the event of
termination,Licensee shall remove the Pipe and restore the License Area as nearly as
possible to as good order and condition as when original entry was made thereon by
said Licensee,at its sole expense,cost and liability.Upon failure to do so,FCEN,may
at any time thereafter,remove the Pipe and repair the License Area at the sole expense,
cost and liability of Licensee.
657845.1 2
9. GOVERNMENT REQUIREMENTS
Installation of the Pipe pursuant to this License Agreement shall be performed in
accordance with all appropriate governmental and administrative requirements for the
use(s)for which such Pipe is to be maintained.
10. FCEN REGULATIONS
Licensee agrees that it shall observe and obey all regulations of FCEN respecting the
use of the License and the License Area.
12. RISK, LIABILITY, INDEMNITY
12.1 Licensee shall defend, indemnify and save FCEN and its officers,
shareholders, directors, affiliates, parents, employees, and agents harmless, from and
against, any and all liability, loss, claim, suit, damage, charge, or expense (including
reasonable attorney's fees and experts)which any such party may suffer,sustain,incur
or in any way be subjected to, on account of death of, or injury to, any person and
damage to or loss of or destruction of any property, arising out of, or resulting from,
or in any way connected with, the construction, presence, existence, repair,
maintenance, replacement, operation, use, or removal of Licensee's Pipe, the use of
the License Area pursuant hereto or any structure in connection therewith, or
restoration of the License Area to good order or condition.
12.2. Use of FCEN's right of way involves certain risks of loss or damage as a
result of FCEN's operations. Licensee expressly assumes all risk of loss and
damage to persons or Licensee's property or Pipe, in, on, over or under the License
Area, including loss of or any interference with use thereof, regardless of cause,
including derailment, arising out of FCEN's operations. For purposes of this
section, Licensee's property shall include the contents of the Pipe as well as
property of third parties situated or placed upon FCEN's right of way by Licensee
or by such third parties at the request of or for the benefit of Licensee.
12.3 Without limiting the generality of other provisions herein, Licensee also
expressly assumes all risk of loss which may result from Licensee's failure to
maintain either the Pipe or the required depth and support for the Pipe.
12.4 Without limiting the generality of other provisions contained herein,
Licensee assumes all responsibility for, and agrees to defend, indemnify and hold
FCEN and its officers, shareholders, directors, affiliates, parents, employees, and
agents harmless from (a) all claims, costs and expenses, including reasonable
attorneys' fees as a consequence of any pollution of air, water, land and/or ground
water on or off the License Area, arising from, or in connection with, Licensee's
use of this License Area or resulting from the leaking, bursting, spilling, or escape
of the material transmitted in or through Licensee's Pipe; (b) any claim or liability
arising under federal or state law dealing with pollution of air, water, land, and/or
ground water arising from the circumstances referenced in (a) of this provision or
657845.1 3
the remedy thereof; and(c) any subsidence or failure of lateral or subjacent support
of FCEN's tracks caused by Licensee's use of the License Area or the presence of
Licensee's facilities.
12.5 Obligations of Licensee hereunder to defend, indemnify and hold FCEN
harmless shall also extend to companies or other legal entities that control or are
under common control with FCEN and its/their respective officers, shareholders,
directors, agents and employees.
12.6 Nothing in this Agreement shall require Licensee to indemnify FCEN or its
other subsidiaries or affiliates or hold them harmless from damages caused
exclusively by FCEN's own willful misconduct or gross negligence.
12.7. Licensee's duty to defend, indemnify, and hold FCEN harmless shall survive
the expiration and/or termination of this License Agreement.
13. NOTICES
All notices on the part of Licensee to FCEN shall be given in writing to the General
Manager, FLORIDA CENTRAL RAILROAD COMPANY, INC., 3001 West
Orange Avenue,Apopka, Florida 32703.
All notices on the part of FCEN to Licensee shall be given in writing to the Attn:
Robert Frank, City Manager, CITY OF OCOEE., 150 Lakeshore Dr., Ocoee Fl
37461
All notices shall be delivered in person, or via overnight courier, or email.
14. FCEN COSTS AND EXPENSES
Licensee agrees to pay to FCEN all reasonable costs and expenses incurred by FCEN
due to FCEN's granting of this License or due to the use,maintenance or existence of
said License by Licensee. Such costs and expenses shall include, but are not limited
to, FCEN's cost of providing flag protection services pursuant to Paragraph 5
above. Licensee's cost for such flag protection services shall be the then-current
rate per day for the particular flag protection services that FCEN determines, in its
sole discretion, are required after reviewing the needs of the work site.
15. NO WARRANTIES
This License is herein granted without any warranty,express or implied,and Licensee
hereby agrees that no damages shall be recoverable from FCEN because of any
dispossession of Licensee or because of any failure of, defect in, cancellation of, or
termination of, FCEN's property interest in the License Area.
16. ASSIGNMENT
No assignment of rights or privileges hereunder by Licensee shall be valid unless the
written consent of FCEN is first obtained which shall not be unreasonably withheld,
conditioned or delayed.
657845.1 4
17. FUTURE PARTIES
This License shall inure to the benefit of, and be binding upon,the Parties hereto and
their respective,heirs, legal representatives, successors and assigns.
18. REMEDIES
The remedies under this Agreement are cumulative and shall not exclude any other
remedies to which any party may be lawfully entitled. The failure or delay of any
party to insist upon the strict or timely performance of a covenant hereunder or any
obligation hereunder, shall not be a waiver of such party's right to demand strict
compliance therewith in the future.
19. CAPTIONS
All titles or captions are inserted for convenience only and they in no way shall be
construed to define, limit or describe the scope of this Agreement or any provision
thereof.
20. SEVERABILITY
If any clause or provision of this Agreement shall be deemed to be invalid or
unenforceable under present or future laws,then, in that event it is the intention of the
Parties that the remainder of this Agreement shall not be affected thereby.
21. CHOICE OF LAW
This instrument is being delivered and is intended to be performed in the state of
Florida and shall be construed and enforced in accordance with the laws of that state.
Any aggrieved party may proceed to enforce its rights in the appropriate action at law
or in equity. Venue for all suits arising out of this instrument shall lie exclusively in
the Courts of Orange County, Florida. By execution or adoption of this agreement,
each party hereby submits itself to the in personam jurisdiction of the Courts of
Orange County,Florida.
22. INSURANCE
Licensee shall maintain insurance in the following amounts:
(a) General liability insurance in the amount of Two Million dollars($2,000,000);
(b) Contractual liability in the amount of Two Million dollars($2,000,000);
(c) Worker's compensation, statutory limits or greater;
(d) Automobile liability, One Million dollars($1,000,000); and
(e) Railroad Protective Liability with bodily injury protection of Two Million
dollars ($2,000,000) and property damage of Two Million dollars
($2,000,000).
All such insurance shall name FCEN as an additional insured. The original of the
railroad protective liability policy shall be provided to FCEN and certificates of
insurance evidencing Licensee's compliance with subparagraphs (a), (b), (c), (d)
and (e) above shall be forwarded to FCEN prior to any work commencing on or
within the License Area. Notwithstanding anything to the contrary, the insurance
required under subparagraph (e) shall only be required during installation of the
657845.1 5
Pipe and whenever the Pipe will be reconstructed, updated, maintained or
otherwise improved.
23. MODIFICATION
All modifications or waivers to this License Agreement must be in writing and
executed by both parties.
24. MERGER
This Agreement represents the final, complete and exclusive understanding of the
Parties of the subject matter hereto.
25. LICENSEE'S AUTHORITY TO EXECUTE THIS AGREEMENT
Licensee represents and warrants that it has taken all necessary actions required in
order to enter into this License Agreement and cause it to be fully enforceable
against Licensee, and that its agent below is authorized to execute this License
Agreement.
[END OF AGREEMENT EXCEPT FOR SIGNATURE PAGE AND EXHIBIT]
IN WITNESS WHEREOF,the parties have executed this Agreement as a sealed instrument
on the day,month and year first written above.
Signed and delivered in the presence of: FLORIDA CENTRAL RAILROAD
COMPANY,INC.
Digitally signed by
KKuivinen
By: By: KKu i v i n e n Date:2021.03.24 12:33:11
-04'00'
657845.1 6
CITY OF OCOEE SIGNATURE PAGE
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA,
Melanie Sibbitt, City Clerk Rusty Johnson, Mayor
DATE:
(SEAL)
FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA; COMMISSION AT A MEETING HELD
APPROVED AS TO FORM AND , 20
LEGALITY this day of UNDER AGENDA ITEM NO.
, 20 .
SHUFFIELD, LOWMAN & WILSON, P.A.
By:
City Attorney
EXHIBIT A
LICENSEE'S 2020 APPLICATION FOR PIPE CROSSING
(ATTACHED 4 PAGES)
REMAINER OF PAGE LEFT INTENTIONALLY BLANK
Application for Facility Installation
Plans for proposed installation shall be submitted to and meet the approval and requirements of the Railroad Company before
construction is begun.Material and installation are to be in strict accordance with specifications of the National Electrical Safety Code
(NESC)or the American Railway Engineering Association(AREMA)which ever applies.An original Plan,Section and Elevation views
from field survey showing location in respect to Mile Post,width of Railroad Right of Way,location of adjacent structures affecting
crossing must accompany application,If open cutting or tunneling is necessary,details of sheeting and method of supporting tracks or
driving tunnel shall also be shown.Flagging as defined by Railroad is required during installation and costs are responsibility of
Agreement Holder.
THIS SECTION RAILROAD USE ONLY
Date Application Application Fee: $747.62 RR Agreement
Received by Road: No:
Railroad Approval: Licensing Type: One Time Fee Licensing 14,727.34
Amount:
FIELDS BELOW TO BE FILLED IN BYAPPLICANT
• Narrative
Please provide a Description/Scope of work to be performed (incllude purpose,scope of work,special-conditions)
Installation of 30"steel storm pipe underneath the railroad to facilitate storm treatment from future development.
Installation is proposed via jack and bore.This project also proposes improvements to the existing headwall
located near 28°34'17.24"N, 81°32'47.21"W,adjacent to the railroad.
Insta
llation Location Information
City: Ocoee State: FL County: Orange
Railroad Florida Central Railroad GPS Latitude 28°34'20.51"N GPS Longitude 81°32'47,46"W
Location: Entering ROW: Entering ROW:
Feet: 44 Select a direction from Mile Post No:
nearest railroad mile post:
Angle between center line of No of RR Tracks Total length within
right of way and occupancy will 90 to be crossed: 1 RR right of way 44
be(degrees): measured in feet:
Will facility be located near a public Yes Street W Franklin St AAR/DOT Crossing 621880W
roadway?: Name: Inventory Number:
Facility Owner Information
Legal Information
Owner's Complete Legal Company Name: City of Ocoee
Legal Address Line 1: 150 N Lakeshore Drive
Legal Address Line 2:
City: Ocoee State: Florida Zip: 34761
Business Type: Municipality Other Business Type: State of Business Registration: FL
The following must be provided for the Name: Steve Krug Title: Public Works Director
person who will sign off on agreement: Pane 1 of 3
Billing Information
If same as legal address
above,check here:
Billing City: Ocoee Billing State: Florida Billing Zip: 34761
Billing Address Line 1: 150 N Lakeshore Drive Billing Address 2:
Owner Contact Information
Contact Name: Miien Womack Title: Project Engineer E-mail: mwomack@ocoee.org
Office Phone: 407.554.7313 Extension: Mobile Phone:407.955.1000
Emergency
Phone:
Project Engineer/Consultant/Agent Information
If same as legal address Engineer/Consultant/ GAI Consultants
above,check here: Agent Company Name:
Contact Name: W.Scott Land
Address Line 1: 618 E.South Street
Address Line 2: Suite 700
City: Orlando State: FL Zip: 32801
Office Phone: 321.319.3056 Mobile Phone: 904.704.2374 E-mail S.Land@gaiconsultants.com
Project Information
Is this covered by existing Railroad permit/ No
agreement or master agreement?
Is this project related to another Yes
transaction/project with railroad?
Is this a new New Installation Request
installation?
Will proposed installation connect to an No
existing facility within railroad corridor?
Plans of any sub-grade z30"
diameter are subject to
Type of Installation: Pipe Method: Sub-grade review by Engineers of
Railroad choice at cost&
expense of facility owner.
Will this installation be parallel to railroad company
tracks anywhere in excess of 150 feet? No If yes Indicate length in feet.
Page 2 of 3
If application is approved,applicant agrees to reimburse the Railroad for any cost incurred by the railroad incident to
installation,maintenance,and/or supervision necessitated by this installation and further agrees to assume all liability for
accidents or injuries which arise as a result of this installation.
IF THE APPLICATION IS APPROVED,THE APPLICANT SHALL EXECUTE THE RAILROAD'S STANDARD FORM OF LICENSE
AGREEMENT.IN THE EVENT THE RAILROAD INCURS LEGAL FEES IN EXCESS OF$500 IN CONNECTION WITH THE COMPLETION
OF THE LICENSE AGREEMENT THE APPLICANT SHALL PAY FOR ALL SUCH LEGAL FEES OF THE RAILROAD IN EXCESS OF$500.
WHETHER APPROVED OR DENIED,IN THE EVENT LITIGATION ARISES OUT OF OR IN CONNECTION WITH THIS APPLICATION OR
THE UNDERLYING SUBJECT MATTER OF THIS APPLICATION,THE APPLICANT SHALL BE RESPONSIBLE FOR,AND AGREES TO
PAY,ALL ATTORNEY'S FEES AND COSTS INCURRED BY THE RAILROAD.THE APPLICANT AGREES THATTHERE IS VALID
CONSIDERATION EXCHANGED BY ALL PARTIES HERETO TO SUPPORT ALL OBLIGATIONS CREATED BY THIS APPLICATION.
Date: Written
Signature
Title of Officer Public Works Director Printed Name of({c r Steve Krug
Signing Application: Signing Application:
Page 3 of 3
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STATEMENT OF AUTHORITY TO CONTRACT ON BEHALF OF THE CORPORATION
I,Sherman W.Petree,Vice President Southern Division,herby certify that the following statements are
true and correct and apply to the corporations listed below:
1. That Florida Central Railroad Company,Inc., Florida Midland Railroad Company, Inc.,
Florida Northern Railroad Company, Inc.,and Railroad Distribution Services, Inc.(Florida),are
corporations organized to do business under the laws of the State of Florida.
2. That Alfred M.Sauer is President and CEO of the above-listed corporations.
3. That Ethel A.M.Nawrocki Chief Finandal Officer of the above-listed corporations.
4. Company authority has been given to Sherman W.Petree and Karen A. Kuivinen to enter into
and/or execute contracts and/or agreement that bind the above-listed corporations.
Sherman W. Petree Vice President
STATE OF FLORIDA
COUNTY OF OR/IA/GE
Sworn to(or affirmed)and subscribed before me this 5 day of P BRKAR$/ ,20 2/ ,by
. harntian PBfree.(Name of Person Making Statement).
Signature of Notary Publicaoae4)
Print,Type or Stamp Name of Notary
Personally Known:X 039E73
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OR Produced Identification:
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Type of Identification Produced: