Item III (E) Approval and Authorization for Mayor and City Clerk to execute the Lease Agreement Contract Agenda 7-7-98
Item III E
oi )
os o000 JAMES W. SHIRR,P.E.
CITY ENGINEER/UTILITIES DIRECTOR
150 N.LAKESHORE DRIVE•OCOEE,FLORIDA 34761
PHONE(407)656-2322 EXT.142•FAX(407)656-7835
MEMORANDUM
DATE: June 25, 1998
TO: The Honorable Mayor and Board of City Commissioners
FROM: James W. Shira, P.E
City Engineer/Utilit s Director
SUBJECT: Drainage Agreement with Florida Central Railroad
Several times over the past few years, during periods of heavy rain, some of the residents on
Sawmill Court in Sawmill Subdivision have experienced backyard flooding. We have looked at
several options to alleviate this problem, and have decided that the most cost effective involves
construction of a pipe under the adjacent railroad track.
When we first approached the railroad for permission to do this, we were sent their standard
license agreement form which included reference to several types of insurance they typically
require. When we informed the railroad that the insurance costs made the project prohibitively
expensive,they agreed to drop the insurance requirements in the interest of being good
neighbors, and due to the rather limited scope of this project.
Attached for your review and action is the proposed agreement between Ocoee and the Florida
Central Railroad which will allow us to move forward with this project. You will note that on
page 4 of the agreement, Section 11. INSURANCE has been lined through in its entirety, as
suggested by the railroad.
The annual Lease Agreement cost is $300.00, and our estimated construction cost is $3,800.00.
City crews will do the actual construction,with assistance from railroad crews as needed.
I recommend that the City Commission authorize the Mayor and City Clerk to execute the Lease
Agreement Contract# OCOE-61-138 with Florida Central Railroad
Attachment
THE PRIDE OF WEST ORANGE
CONTRACT# OCOE-61-138
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of this day of
1997 by and between FLORIDA CENTRAL RAILROAD COMPANY. INC., a Florida
corporation, (hereinafter referred to as "Railroad"), and THE CITY OF OCOEE, a municipality
and political subdivision of the State of Florida, (hereinafter referred to as the "User"), collectively
referred to as the "Parties."
WITNESSETH:
WHEREAS, User, for the economical and convenient conduct of User's business, desires to obtain
from Railroad a privilege to use a portion of Railroad's property as defined below, without
establishing, claiming, or possessing any estate or interest therein, (hereinafter a "License"), for the
benefit of User, and
WHEREAS, Railroad has the right, power and authority to enter into this License; pursuant to a lease
agreement with CSX Transportation, Inc.; and
WHEREAS, User desires to construct and maintain an underground drainage pipe (hereinafter, the
"Pipe") within the License area, hereinafter defined below.
NOW, THEREFORE, In consideration of the following covenants and promises made by User, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Railroad hereby grants unto User, its successors and assigns, a License, with authority to enter upon,
construct and maintain, pursuant to this License, a Pipe, as more fully described below, across the
following described lands, situated, lying in and being in Ocoee, Orange County to wit:
at or about, Mile Post F8.2
on Railroad's Forest City Branch,
Hereinafter referred to as the License Area.
The parties agree that this License is subject to the following terms and conditions:
1. REFERENCE TO PROPERTY OWNER
This License shall be subject to the terms and conditions of that certain lease agreement
between Florida Central Railroad and CSX Transportation. Inc. which is recorded in the
Orange County public records in Book 5098, Page 4983.
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3. STATUS OF SUBCONTRACTORS
For purposes of this agreement, all references to User shall include User, its contractors,
subcontractors, agents, officers, employees and others acting under its or their authority.
3. NO WARRANTIES
This License is herein granted without any warranty, express or implied, and User hereby
agrees that no damages shall be recoverable from Railroad because of any dispossession of
User or because of any failure of, defect in, cancellation of, or termination of, Railroad's
property interest in the License Area.
4. USE:
User shall use the Pipe that is the subject of this Agreement for drainage purposes only and any
other purpose or use is not permitted. Regardless, User agrees that this License shall not be
used in anyway that will inhibit the use of the License Area by Railroad, its successors or
assigns.
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, Railroad's General Manager. Any and all work shall be performed in a manner satisfactory
to the Railroad. All work shall be performed at times and in a manner which shall least affect
the reasonable operation of the business of Railroad.
6. 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 Pipes are to be maintained. User shall be responsible for meeting all requirements in
addition to paying to Railroad any and all moneys reasonably required for increased insurance
costs incurred by Railroad due to the User's use of the Pipe.
7. RAILROAD COSTS AND EXPENSES
User agrees to pay to Railroad any reasonable costs or expenses, incurred by Railroad due to
Railroad's granting of this License or due to the use, maintenance or existence of said License
by User.
8. NON PERMANENT LOCATION
User recognizes that it may be in the best interest of Railroad to move the Pipe to other areas
within Railroad's property, and therefore, User agrees, at User's cost and expense, to move or
relocate the said Pipe at the request of Railroad. User hereby agrees to effectuate and perform
such move expeditiously and within reasonable constraints of time.
9. ANNUAL FEE
User shall pay to Railroad for this License, a yearly rental of Three Hundred Dollars (S300),
said rental to begin on the 1st day of_ , 1997 . The rental shall be payable in
advance, plus sales tax if applicable, in annual payments as long as this License remains in force
and effect. It is distinctly understood and agreed that Railroad reserves the right to increase
such fee annually in proportion to the increase in the Consumer Price Index as published by the
United States Department of Labor, Bureau of Labor Statistics issued in December preceding
each anniversary date of this Agreement over such Index issued in the preceding December. In
the event User fails to make the aforesaid annual payment, User shall be considered to be in
default, and this License shall cease, be null and void and of no further force or effect, and the
pipes, wires or facilities installed shall become the property of Railroad but only after written
notice from Railroad of User's default and the passage of a thirty (30) day opportunity to cure
such default.
10 RISK, LIABILITY, INDEMNITY
10.1 User, to the fullest extent permitted by State law, shall defend, indemnify and save
Railroad harmless, from and against, any and all liability, loss, claim, suit, damage, charge, or
expense which User may suffer, sustain, incur or in any way be subjected to, on account of
death of, or injury to, any person whomsoever(including officers, agents, employees or invitees
of Railroad) and for damage to or loss of or destruction of any property whatsoever, arising
out of, or resulting from, or in any way connected with, the construction, presence, existence,
repair, maintenance, replacement, operations, use, or removal of User's Pipe, or any structure
in connection therewith, or restoration of the License Area to good order or condition after
removal, except when caused by the fault or negligence of Railroad.
10.2. Use of Railroad's right of way involves certain risks of loss or damage as a result of
Railroad's operations. Subject to the limitation of Section 8.1, User expressly assumes all risk
of loss and damage to User's property or pipeline, 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 Railroad's operations. For this section, User's property shall include Pipe
contents as well as property of third parties situated or placed upon Railroad's right of way by
User or by such third parties at the request of or for the benefit of User.
10.3 To the extent permitted by legislative acts, User assumes all responsibility for, and
agrees to defend, indemnify and hold Railroad 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, acts or omissions
of User in the use of this License Area or resulting from leaking, bursting, spilling, or escape of
the material transmitted by User in or through User'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 said acts or omissions of User or the remedy thereof, and (c) any subsidence or failure of
lateral or subjacent support of Railroad's tracks caused by User.
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10.5 Obligations of User hereunder to defend, indemnify and hold Rail
alsoextend to companies or other legali • harmless sha
es thof Railroad and its/their respective officers, agents3t and empcontrol loyees are controlled by or s b�dianes
I ogees.
10.6 If a claim is made or action is brought against either party, for which the other
Pay be responsible hereunder in whole or in part, such other party shall
�
be notified and
permitted to participate in the handling or defense of such claim or action
•
.' . . - • . . .
RiaiffteReffee
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In.
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12. COSTS AND ATTORNEYS FEES
In the event Railroad is required to retain the services of attorneys,
persons in order protect itself from any liabilities or obligations that may Y , other professionals or
Agreement, User agrees to pay accnie from this
any and all such attorneys' fees, professional fees and costs so
incurred, including but not limited to, said attorneys' fees and costs f
thereof provided that Railroad is successful in any litigation against User litigation and appeals
J r or User's agents.
4
13 NO_ TEES:
' All notices on theart of
p User to Railroad shall be given
Manager, FLORIDA CENTRALL
Plymouth, FL 32768 pin INC.,g the
RAILROAD COMPANY, Genera(
[NP.
O Box 967
' All notices, on the
OCOEE, 150 Lakeshopart
of
Railroad to User, shall be
Ocoee, FL 34761 given in writing to CITY OF
14 TERMINATION
This agreement may be terminated by rty
(30days advance written notice of its intention to seor r
User l adverance
remove the pipe,o wireby the giving the theevother party
terminate.the In said premisesent of termination,sle
expense, cost and liability of User. or facility and repair at the sole
15. ASSIGNMENT
No assignment of rights or
consent ss of Railroad is first oprivileges
hereunder by Usershall be valid provision,
the written
assign this agreement to a However, not withstanding
prior written agreement
and da parent,
affilion atesfor subsidiary this provision, Useramay
the obligations of the Agreement.
ry company upon reasonable advance
satisfactory to Railroad that the assignee has assumed
16. FUTURE PARTIES:
This License shall inure to the benefit of and be bin
respective, heirs, legal representatives, successors and in the the
assigns.
upon, parties hereto and their
e case of the User, its permitted
17. RgBROAD REGULATIONS:
User agrees that it shall observe and obey all regulations
and the License ns of Railroad res
Licensenstrative he Li es s Area and all appropriate regulations o f g respecting the use of the
applicable to said use. governmental bodies and
18. -•
The remedies under this Agreement are cumulative and shall not exclude any
which
performance of an covenant fully hereunder entitled.an The failure of anyy otherpneme st to
t
such y obligation hereunder, hto linnot b a the strict
Pty's right to demand strict compliance therewith in the future.
for and agreesshall not be a waiver of
to pay, any and all legal fees and costs incurred by Userashallod in connection
with the breach of its obligations under this Agreement, the Railroad connection
�reement, and the granting of this License
19. CAPTIONS
All titles or captions are inserted only for convenience and they in no way shall be construed to
define, limit or describe the scope of this Agreement or any provision thereof.
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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 Florida. By execution or adoption of this agreement, each party hereby submits
itself to the in personam jurisdiction of the Courts of Florida.
IN WITNESS WHREOF, the parties set their hands and seals on the day and year first written
above.
A 1"1'FST: FLORIDA CENTRAL RAILROAD
COMPANY,Inc., "Railroad"
By:
WITNESSES:
Name: J. P. Levine
Title: Vice President
APPROVED:
ATTEST: CITY OF OCOEE, FLORIDA
Jean Grafton, City Clerk S. Scott Vandergrift, Mayor
(SEAL)
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FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY
THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING
APPROVED AS TO FORM AND LEGALITY HELD ON , 199_
this day of , 199 UNDER AGENDA ITEM NO.
FOLEY & LARDNER
By:
City Attorney
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"CENTER OF GOOD LIVING-PRIDE OF WEST ORANGE" MAYOR•COMMISSIONER
S.SCOTT VANDERGRIFT
Ocoee
(•/ ; SS\
CITY OF OCOEE DANNY HOWELL
OMMISSIONERS
nti %
SCOTT ANDERSON
150 N.LAKESHORE DRIVE
CC OCOEE,FLORIDA 34761-2258 SCOTT A.GLASS
NANCY J.PARKER
e� ?v (407)656-2322
4> ~+ �� CITY MANAGER
4`.4 of 000V ELLIS SHAPIRO
MEMORANDUM
DATE: June 26, 1998
TO: Jean Grafton, City Clerk
FROM: James W. Shira, P.E.
City Engineer/Utilities Director
SUBJECT: Drainage Agreement with Florida Central Railroad
Attached please find item for the July 7th agenda.
If you have any questions, please call.
jbw
Attachment
pc: Ellis Shapiro, City Manager