HomeMy WebLinkAboutItem 07 Approval of the Florida Central Railroad License Agreement for West Oakland CrossingContact Name:
Contact Number:
Ocoee
florldo
AGENDA
Meeting Date
Milen Womack
6013
Item #
December 7, 2021
Reviewed By:
Department Direc
City Manager:
Subject: Florida Central Railroad License Agreement for West Oakland Crossing
Background Summary:
The City Commission approved the Downtown Master Plan in October 2016 and a key element of the
Plan is the proposed improvements to West Oakland Ave between Taylor Street and Bluford Ave. City
Staff have worked with Florida Central Railroad to develop an Agreement to improve their active railroad
crossing on West Oakland. The License Agreement with Florida Central Railroad will permit FCEN to
install new crossing signals and improve the railroad crossing surface to match the proposed road and
trail streetscape improvements. The agreed costs for these improvements total $371,787.00 and are
adequately funded in the project budget. These improvements will be installed in conjunction with the
West Oakland Phase 2 construction. Public Works will be bringing another agreement in the near future
for the abandonment of the inactive rail line parallel with Kissimmee Ave. Public Works recommends
approval of the Railroad License Agreement.
Issue:
Request the City Commission approve and sign the Florida Central Railroad License Agreement for the
amount of $371,787.00.
Recommendations:
Recommend the City Commission approve and sign the Florida Central Railroad License Agreement for
the amount of $371,787.00 and authorize the City Manager and staff to approve and execute change
orders to the work in accordance with the limits established in the Purchasing Code.
Attachments:
License Agreement For Public Road Crossing/Streetscape.
Financial Impact:
The cost of the work is adequately funded in Job #18802 for Public Works.
Type of Item: (please mark with an 'Y)
Public Hearing Fo,r Clerk's Dept Use:
Ordinance First Reading ' 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 e-11,, N/A
Reviewed by Finance Dept. L� Lei- N/A
Review ed by ( ) N/A
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LICENSE AGREEMENT FOR PUBLIC ROAD CROSSING/STREETSCAPE
THIS LICENSE AGREEMENT FOR PUBLIC ROAD CROSSING (the
"Agreement") is made and entered into as of this day of , 2021 (the
"Effective Date") by and between FLORIDA CENTRAL RAILROAD COMPANY,
INC., a Florida corporation with an address of 3001 W. Orange Avenue, Apopka, FL
32703 ("FCEN") and THE CITY OF OCOEE, a municipal corporation of the State of
Florida with an address of 150 N. Lakeshore Drive, Ocoee, FL 34761 ("Licensee").
RECITALS
WHEREAS, the Licensee is desirous of creating certain streetscape improvements within
portion of FCEN's leased right-of-way within Oakland Ave DOT 621881D ATB 32.25 to
include the railroad spur that traverses Oakland Avenue ("the "Crossing") approximately
fifty (50) feet west of DOT 621881D as depicted on 90% Design Plans of August 19, 2019,
as prepared by CPH Inc. of Sanford, Florida (the "Plans").
WHEREAS, FCEN agrees to grant Licensee a license to use portions of FCEN's right of
way created by that certain lease agreement between FCEN and CSX Transportation, Inc.
dated (the "CSX Lease") for the benefit of Licensee and the general public
but without establishing, claiming, or possessing any estate or interest therein (a
"License").
WHEREAS, Licensee is willing to pay the reasonable costs, fees, and expenses of
Licensee's use of the License.
WHEREAS, FCEN shall remove a portion of the Crossing that lies within the License
Area.
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 non-exclusive
License, with authority to enter upon, construct and maintain, install and use,
pursuant to this License, the Crossing and other improvements within a limited area
over FCEN's railroad tracks and right of way located along Oakland St, Ocoee,
Florida in the vicinity of Mile Post ATB 32.25, and known as FDOT Crossing
4621881D (the "License Area"), containing approximately six thousand eight
hundred and eighty five (6,885) square feet, identified on Exhibit "A", which is
attached hereto and incorporated herein. This License grants Licensee and the
general public the right to cross over and through the License Area.
2. CROSSING; SIGNALS
(a) Licensee and FCEN acknowledge that, as of the Effective Date, the
Crossing has been constructed in a manner and of materials that are
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satisfactory to FCEN. The Licensee and FCEN further acknowledge that
the Crossing, and all materials used to construct the improvements within
the Crossing, as of the Effective Date, are the property of FCEN.
(b) The Crossing shall include flashers and gates appropriate for Florida
Department of Transportation Class III signals (the "Signals"), which shall
be installed at the sole cost and expense of Licensee. The Crossing shall
include one hundred (100') feet of curved concrete surface (the "Surface"),
which shall be installed at the sole cost and expense of Licensee. In the event
that the amount in the quote provided to Licensee on or about January 22,
2021, is less than the actual cost borne by FCEN for the construction and
installation of the Signals and Surface, then Licensee shall pay the reasonable
additional cost to FCEN within ten (10) days of receipt of an invoice from
FCEN.
(c) If, at any time in the future, and upon sufficient advance notice to the
Licensee, FCEN or any authorized public authority reasonably determines
that safety would be served by additions or protections to the License Area
FCEN shall install such additional protections at the sole cost and expense
of Licensee, provided however, such installation of additional protection,
shall not commence unless and until FCEN obtains the approval, in writing,
from Licensee with respect to the location and type of such additional
protection.
3. 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 of Orange County at
Official Records Book _, Page .
4. STATUS OF SUBCONTRACTORS
For purposes of this Agreement, all references to Licensee shall include the Licensee,
its contractors, subcontractors, agents, officers, employees, and others acting under its
or their authority.
5. CROSSING'S COST AND EXPENSE
(a) The Crossing shall be maintained in good condition by Licensee at
Licensee's sole cost and expense, in a manner and with such materials
as are reasonably satisfactory to FCEN, as long as the Crossing remains in
place as set forth in Paragraph 10 below.
(b) In the event that Licensee or any agency or entity responsible for
maintaining the roadway desires a different surface on the Crossing, and if FCEN
agrees to provide a different surface or surfaces, Licensee or responsible agency
will pay the cost thereof.
6. OTHER IMPROVEMENTS
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FCEN hereby grants unto Licensee, its successors and assigns the authority to enter
upon, construct and maintain, install, and use, pursuant to this License, other
improvements depicted on the Plans. Such other improvements include but may not
be limited to two (2) eight -foot -wide pedestrian walkways, one (1) twelve -foot -
wide pathway, and two (2) eleven -foot -wide vehicle travel lanes (the "Other
Improvements"). The Other Improvements are subject to the terms and conditions
of this license agreement.
7. FEES
Within thirty (30) days upon receipt of an invoice by FCEN, Licensee shall pay the
following:
(a) Licensee shall pay to FCEN a fee of $ for maintenance work
performed on automatic crossing protection appurtenant to the Crossing, if any, as set
forth in Paragraph 10(c) below.
(c) Licensee shall pay to FCEN the cost of the construction and implementation
of the Signal System in the amount of Three hundred Seventy -One thousand Seven
hundred and Eighty -Seven dollars ( $371,787.00)
(d) Licensee shall pay to FCEN the cost of the materials and installation of the
Surface in the amount of One Hundred Fifty -Three, Nine Hundred Fifty -Five Dollars
($153,955.00)
8. TERM
The term of this Agreement shall run for a period of one (1) year commencing on
the Effective 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 this Agreement exceed the term of the CSX Lease.
9. TERMINATION
(a) If Licensee fails to keep or perform any such covenants, terms and/or
conditions as contemplated within this Agreement, FCEN shall have the right to
terminate this Agreement only upon written notice to Licensee of such breach,
providing Licensee thirty (30) days to cure such breach, unless such breach, in
FCEN's opinion, constitutes a safety hazard, in which case the time of cure shall be
twenty-four (24) hours. The curing of such breach within the said time period shall
negate the said notice of termination and the failure to cure within the said period shall
be conclusive termination, whereupon Licensee will, at Licensee's expense, restore,
under supervision of FCEN, the License Area to its original condition, if required by
FCEN.
(b) 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 Crossing and restore the License Area as
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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.
10. MAINTENANCE
(a) The Crossing and License Area, including the usual appurtenances such as
approaches, roadway, , curbs, pathways or sidewalks, travel lanes or utilities,
gutters, shoulders, slopes, fills and cuts, shall be maintained by Licensee at the sole
cost and expense of Licensee. Licensee shall be solely responsible for keeping all
vegetation within the "Site Clearance Area" as depicted on Exhibit "B" attached
hereto, cut to a height not to exceed one foot (1') above ground level, and free of
parked vehicles.
(b) In the event additional or upgraded safety grade crossing traffic control
devices, i.e., gates or flashing lights (in addition or as replacement to those listed in
Paragraph 2) are installed within the License Area, any such safety grade crossing
traffic control devices will be installed by Licensee, at their sole cost and expense, but
in a manner satisfactory to FCEN's General Manager.
(c) Without limiting the general obligations of the parties under this
Paragraph 9, FCEN shall perform maintenance on the Signals at the Crossing.
Licensee shall, within thirty (30) days of FCEN's presentation of an annual bill
for that maintenance, pay to FCEN a fee equal to fifty (50%) percent of the then
current Florida Department of Transportation Index for the maintenance of the
type and/or class of Signals at the Crossing (the "Signal Maintenance Fee").
11. TEMPORARY CLOSING OF THE CROSSING
At such time that FCEN performs construction, rehabilitation, maintenance,
repairs, or improvements to the Crossing or to trackage at the Crossing, FCEN,
if deemed necessary by FCEN, shall provide flagging protection at the sole cost
and expense of the Licensee after delivery to Licensee of notice of the
applicable work. Licensee's cost for such flag protection services shall be then
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.
12. CONTINUING OBLIGATION
As long as this Agreement remains in effect, Licensee shall bear the expenses or
maintenance as hereinabove set forth and promptly pay for the same.
13. ALTERATIONS
In the event FCEN's use of its right of way (e.g., additional track construction,
installation of communication facilities, crossbucks, gates and signals, etc.) shall
hereafter make necessary any change in the Crossing, Licensee shall be obligated
to bear all costs of making and maintaining adjustments to the Crossing which
are deemed necessary by FCEN's General Manager.
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14. RISK, LIABILITY, INDEMNITY
Excluding the negligent and intentional acts of FCEN, its owners, affiliates,
officers, shareholders, directors, employees, and agents, the Licensee shall defend,
hold harmless and indemnify FCEN, its owners, affiliates, officers, directors,
shareholders, employees, and agents from and against any and all liability, loss,
claim, suit, damage, charge or expense (including reasonable attorney's fees) which
any such party may suffer, sustain, incur, or in any other way be subjected to, on
account of death or injury to any person and for loss of or damage or destruction to
any property, arising out of or from, or in any way connected to or with, the use by
any person, of any and all of the Crossing and License Area, and Improvements,
but only to the extent Florida Statutes Section 768.28 has waived sovereign
immunity.
15. GOVERNMENT REQUIREMENTS
Installation of the Crossing pursuant to this License Agreement shall be performed in
accordance with all appropriate governmental and administrative requirements for the
use(s) for which such Crossing is to be maintained.
16, FCEN REGULATIONS
Licensee agrees that it shall observe and obey all regulations of FCEN respecting the
use of the License and the License Area.
17. THIRD PARTIES
Neither this Agreement nor any provision hereof or herein shall operate or be
construed as being for the benefit of any third person.
18. 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 W.
Orange Avenue, Apopka, FL 32703
All notices on the part of FCEN to Licensee shall be given in writing to the Attn: City
Manager, THE CITY OF OCOEE, FLORIDA, 150 N. Lakeshore Drive, Ocoee,
FL 34761.
All notices shall be sent in person, or via overnight courier, or email.
19. 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.
20. NON -PERMANENT LOCATION
Licensee recognizes that it may be in the best interest of FCEN to move the Crossing
to other areas within FCEN's right of way, and therefore, Licensee shall, move or
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relocate the said Crossing at the reasonable request of FCEN. Licensee shall effectuate
and perform any such move expeditiously and within reasonable constraints of time.
21. ASSIGNMENT
No assignment of rights or privileges hereunder by Licensee shall be valid unless the
written consent of FCEN is first obtained.
22, 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.
23, 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.
24. 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.
25. 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.
26. 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.
27. MODIFICATION
All modifications or waivers to this License Agreement must be in writing and
executed by both parties.
28. MERGER
This Agreement represents the final, complete, and exclusive understanding of the
Parties of the subject matter hereto.
29. LICENSEE'S AUTHORITY TO EXECUTE THIS AGREEMENT
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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:
Witness
Print Name:
Witness
Print Name:
FLORIDA CENTRAL RAILROAD
COMPANY, INC.
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Witness
Print Name:
Witness
Print Name:
FOR USE AND RELIANCE ONLY
BY THE CITY OF OCOEE,
FLORIDA; APPROVED AS TO
FORM AND LEGALITY this day
of , 2021.
SHUFFIELD,
WILSON, P.A.
City Attorney
LOWMAN &
CITY OF OCOEE, a Florida municipal
corporation
RUSTY JOHNSON
Mayor
Date:
Attest:
Melanie Sibbitt, City Cleric
Date:
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON
2021,
UNDER AGENDA ITEM NO.
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EXHIBIT A
page below)
FORTHCOMING
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