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HomeMy WebLinkAboutItem 09 Approval of License Agreement between FCEN for the Floral Street Sewer Project City of Ocoee ▪ 1 N. Bluford Avenue ▪ Ocoee, Florida 34761 Phone: (407) 905-3100 ▪ www.ocoee.org STAFF REPORT Meeting Date: September 17, 2024 Item #: 9 Contact Name: TJ Tomlinson Department Director: Jen Bolling Contact Number: Ext. 4301 City Manager: Craig Shadrix Subject: Approval of License Agreement Between Florida Central Railroad Company, LLC (FCEN) for the Floral Street Sewer Project. (Acting Utilities Director Bolling) Background Summary: The Floral Street Sewer Project was designed to provide gravity sewer service for residents in the Downtown Ocoee area. Staff worked with FCEN to obtain permission to install a 16-inch steel casing and a 4-inch sewer force main underneath the railroad tracks at the intersection of Floral Street and S. Kissimmee Avenue. This will allow the parcels located on the western corners of the intersection to connect to the gravity sewer system that was constructed during the Floral Street Sewer Project. To obtain permission from FCEN to construct any utilities under their tracks, the City must enter into a licensing agreement for each application. Past agreements with FCEN have required the City to pay an annual license fee and that was increased annually based on the Consumer Price Index (CPI). This agreement will require the City to pay a one-time application fee of $1,500.00 and a one-time license fee of $23,400.00, providing the City with substantial savings over the lifetime of the agreement. Issue: Should the Honorable Mayor and City Commissioners approve the License Agreement between Florida Central Railroad Company, LLC (FCEN) for the Floral Street Sewer Project at a total cost of $24,900.00? Recommendations: Staff recommends the Honorable Mayor and City Commissioners approve the License Agreement with FCEN for the Floral Street Sewer Project at a total cost of $24,900.00. Attachments: 1. License Agreement 2. Force Main Extention Plans Final Financial Impacts: None, as the City has adequate funding in the Capital Improvements Fund for this agreement. Type of Item: Consent OCOE-62-207 657845.1 1 LICENSE AGREEMENT THIS LICENSE AGREEMENT is made and entered into as of this ___ day of __________, 2024 by and between FLORIDA CENTRAL RAILROAD COMPANY, LLC, a Florida corporation with an address of 3001 West Orange Avenue, Apopka, FL 32703 (“FCEN”) CITY OF OCOEE., a municipal corporation of Florida with an address of 1 North Bluford Avenue, Ocoee, FL 34761 (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 License. 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 force main, (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 one under the FCEN’s right of way at Floral St., via 34 line foot trench , in the vicinity of Railroad Mile Post AVB 832.4, former DOT Crossing 622140V Ocoee, Orange County, Florida (the “License Area”), described on Exhibit A, which is attached hereto and incorporated herein. 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. OCOE-62-207 657845.1 2 4. USE Licensee shall use the License Area for the construction, maintenance and operation of the Pipe that are the subject of this Agreement only for the conveyance of sewer water within main, 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 Twenty-Three thousand four hundred Dollars ($23,400.00) per occupancy, (the “Fee”) plus Fifteen Hundred Dollars ($1,500.00) for application and document processing. 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. In the event FCEN terminates this License prior to the expiration of the Term, it will return a prorated portion of the Fee to Licensee. 7. TERM The term of this License Agreement shall run for a period of twenty (20) years from the above date. Thereafter, this Agreement shall automatically renew for successive five (5) year periods unless or until it is terminated as provided below. 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 twelve (12) months 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. OCOE-62-207 657845.1 3 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. 11. NON-PERMANENT LOCATION Licensee recognizes that it may be in the best interest of FCEN to move the Pipe to other areas within FCEN's property, and therefore, Licensee agrees, at Licensee's cost and expense, to move or relocate the said Pipe at the reasonable request of FCEN. Licensee hereby agrees to effectuate and perform such move expeditiously and within reasonable constraints of time. 12. RISK, LIABILITY, INDEMNITY 12.1 To the extent permitted by applicable law and expressly limited to the amounts set forth in in §768.28, Fla. Stat. (2023), except Contractors on behalf of Licensee. 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. Other than the above limited indemnity not to exceed the amounts set forth in §768.28 Fla. Stat. (2023), nothing in this Agreement shall be construed as a waiver of Licensee’s sovereign immunity. 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. OCOE-62-207 657845.1 4 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 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, LLC., 3001 West Orange Avenue, Apopka, Florida 32703. All notices on the part of FCEN to Licensee shall be given in writing to the City of Ocoee, 1 N Bluford Avenue, Ocoee, Florida 34761 Attn: City Manager 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 OCOE-62-207 657845.1 5 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. FCEN will consent to an assignment by the Licensee provided that the assignee assumes all obligations and duties of the Licensee to the reasonable satisfaction of FCEN, and the Licensee and the assignee execute FCEN’s usual and customary assignment and assumption agreement. 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 and its Contractors 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); OCOE-62-207 657845.1 6 (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 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] OCOE-62-207 657845.1 7 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, LLC. By:_______________________________ By: ________________________________ 8 CITY OF OCOEE SIGNATURE PAGE CITY: CITY OF OCOEE, FLORIDA By: Rusty Johnson, Mayor ATTEST: Melanie Sibbitt, City Clerk (SEAL) APPROVED BY THE CITY OF OCOEE COMMISSION AT A MEETING HELD ON , 20 UNDER AGENDA ITEM NO. FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, FLORIDA; APPROVED AS TO FORM AND LEGALITY this day of , 20 . FISHBACK DOMINICK By: _ Richard Geller, City Attorney OCOE-62-207 657845.1 8 EXHIBIT A LICENSEE’S 2024 APPLICATION FOR PIPE CROSSING (7 pages below) PROFILE NOTES: CROSS SECTION c�=:!:::::!::::!::::::!:=::!::::=:(...r BASE OF RAIL TRAC,...K / _J I REFER TO HOD INTERIM GUIDELINES AND ENGINEERING SPECIFICATIONS IN THE APPLICATION PACKAGE FOR ADDITIONAL INFORMATION AND GUIDANCE. LOCATE csx·s SIGNAL FACILITIES AND/OR WARNING DEVICES AT PROPOSED f ACILITY CROSSING LOCATION, I.E. CANTILEVERS, FLASHERS, GATES AND SHOW CLEARANCES. THEORETICAL EXTENSION OF EMBANKMENT (TYP) RAILROAD RIGHT OF WAY RAILROAD TRACK REMOVED 30 00' "CROSSTIE • � I EXISTING t, aiOU: I ---ELEV\12220 I= 4" J = 16" Letter (a) (b) (c) (d) (e) NA (g) NA (h) (i) (k) ffi :! �']!! Uo Zz �w . w "' rn "' I I 1:SI ··ELEV:116 70 \ 1+00 LEGEi'l'D 4" (16" CASING) PVC BY TRENCHING Description _\ T O P ELEV:116 22 '-CASING END CAP 2+00 PIPELINE CONTENT DETAILS Distance from centerline of track to FCEN R/W Distance from base-of-rail to top-of-casing Commodity Description: Sanitary Sewer Force Main -4 Inch Carrier Pi e Distance from base-of-ditch to top-of-casing Maximum Operating Pressure: Is Commodity Flammable: 0 Yes [2] No CARRIER/CASING PIPE DETAILS Carrier Pipe Pipe Material: PVC Steel Casing Pipe Total length of pipe on FCEN R/W Distance from centerline of nearest track to face of pits at a 90 degree angle to the track(s)(N/A) Material Specifications & Grade: C900 Grad e "B" Distance from top-of-vent pipe to ground surface (4' minimum 1-------+--S.:.p_e _ci_fi _ed_M_in_i_m_um_Y_i_el_d_S_tr_e_,:ng=-t_h:-i-=2:.:1..i.,.::o .:o�o:...c.:S::.i ______ j.;3�5:::.i.: 0�0 =0�s�i _____ __J required)(N/A) Nominal Size Outside Diameter (Inches): 4.80 16 Distance from centerline of track to vent pipe at a 90 degree Wall Thickness (Inches): 0.57 0.281 angle to the lrack(s) (N/A) Type of Seam: None Straight Theoretical Embank ment Line: Starts 12' from centerline of track and extends away from track at a slope of 1.5' over and l'l-------+---------__:..:._ ___ +-_:..:.;..:.:.....c...::...:.:... _____ ....LW:..:.;e::.;l:,:d:.:e::.:d down Type of Joints: Restrained Tunnel Liner Plates Required: D Yes 0 No Carrier pipe diameter Cathodic Protection: D Yes 0 No Type: NIA Casing pipe diameter Protective Coa ting: D Yes 0 No Type: N/A Depth of Launching/Receiving Pit (TRENCH AREA) Temp, Track Support or Rip-Rap Req.: D Yes 0 No Must Describe & Show on Dwg. Location: Latitude: Longitude: CASING PIPE ENDS MUST BE SEALED. IF APPLICABLE, HOPE DR 11 OR BETTER MUST BE USED. YOUR DRAWING MUST SHOW ALL SETS OF TRACKS PRESENT AT THE PROPOSED UTILITY CROSSING LOCATION. CSX BORE PLAN TEMPLATE AND FRACTION MITIGATION PLAN TO BE SUBMITTED TO CSX FOR REVIEW AND APPROVAL PRIOR TO CONSTRUCTION Hazen HAZEN AND SAWYER 2420 S. LAKEMONT AVENUE, SUITE 325, ORLANDO, FLORIDA 32814 Floral Street, Ocoee, FL 28:�: 05 W�:�: 47 5 7 Drawing No.: _________ Shect: _1_of_1_ Drawing Date: �/ � � Revised: ..Q!!.1 �/ � Drawing Scale: V NTS Drawing Scale: H NTS FORCE MAIN.