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86-R-56-VIA df RESOLUTION NO. 86-R-56 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA, AUTHORIZING THE APPROPRIATE OFFICIALS OF THE CITY OF EDGEWATER TO ENTER INTO AN AGREEMENT WITH THE FLORIDA EAST COAST RAILWAY COMPANY; REPEALING ALL RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Edgewater desires to have the privilege and right to use, for road crossing purposes only, part of the right-of-way and property of the Florida East Coast Railway Company which crosses John Street. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDGEWATER, FLORIDA: SECTION 1. That the appropriate City officials are hereby authorized to enter into an agreement with the Florida East Coast Railway Company for the privilege and right to use, for road crossing purposes only, part of the right-of-way and property of the Florida East Coast Railway Company which crosses John Street. The description of the property is as follows: A parcel of land with uniform width of fifty(50) feet easterly and westerly, extending northerly and southerly, across the Railway's one hundred fifty (150) foot right-of-way and industrial lead track at a point located four thousand four hundred nineteen (4,419')feet westerly from Railway's Mile Post F-0 located at Edgewater, Florida; Railway's said right-of-way being seventy five (75) feet each side of centerline of said track. SECTION 2. A copy of said Agreement and Plan No. 550 (MP FO + 4,419') dated August 12, 1985, are attached to this Resolution and by reference incorporated herein. SECTION 3. That all resolutions or parts of resolutions in conflict herewith be and the same are hereby repealed. U U SECTION 4. That this Resolution shall take effect immediately upon its adoption by the City Council of the City of Edgewater, Florida, at a regular meeting of said Council held on the l7th day of November ,198 6 , and approved as provided by law. This Resolution was introduced and sponsored by Councilman [+sting and was read and passed by a vote of the City Council of the City of Edgewater, Florida, at a regular meeting of said Council held on the 17th day of November ,198 6 , and authenticated as provided by law. ROLL CALL VOTE AS FOLLOWS: CITY CLERK Authenticated this 17th day of November 198 6 . YOH COUNCI - Z NE THREE �/%CILMAN - ZONE FOUR -2- Res. 86-R-56 THIS LICENSE AGREEMENT, effective as of the day of August, 1985, is between the FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, hereinafter called "RAILWAY", and CITY OF EDGEWATER, FLORIDA, a municipal corporation of the State of Florida (Address: P. O. Box 100, Edgewater, Florida 32032), hereinafter called "SECOND PARTY". WITNESSETH: That the RAILWAY, for valuable consideration and the covenants and agreements herein contained to be performed and kept by the SECOND PARTY, does hereby give and license unto said SECOND PARTY the right and privilege to use, for road crossing purposes only, that part of the right-of-way and property of the RAILWAY at the location described as follows, and hereinafter referred to as the "CROSSING SITE': A parcel of land with uniform width of fifty (50) feet easterly and westerly, extending northerly and southerly, across the Railway's one hundred fifty (150) foot right-of-way and industrial lead track with the centerline of said parcel intersecting the centerline of the Railway's industrial lead track at a point located four thousand four hundred nineteen (4,419') feet westerly from Railway's Mile Post F-0 located at Edgewater, Florida; Rail- way's said right-of-way being seventy five (75) feet each side of centerline of said track. All as shown colored green on the attached Plan No. 550, (MP FO + 4,419') dated August 12, 1985, attached hereto and made a part hereof. 0 The words "CROSSING SITE" are defined to include any railroad crossing signs, crossing structure or automatic crossing devices which are, or might be, located within or adjacent to the above described location. In consideration of the right to use, but not possess the CROSSING SITE and of the other provisions stated herein, the SECOND PARTY covenants and agrees with the RAILWAY as follows: 1. SECOND PARTY agrees that the CROSSING SITE, together with the additional portions of the RAILWAY's right-of-way within 370 feet of the northerly and southerly limits of boundaries of the above described CROSSING SITE, on each side of the railroad tracks, shall at all times be kept clear of any vegetation or other growth greater than two feet in height, by the SECOND PARTY, at its sole expense, and without cost to RAILWAY or lien upon RAILWAY's property. 2. The CROSSING SITE shall be used for road crossing purposes by the SECOND PARTY. No pipe, wire, rail, or other line or structure shall be placed in or on said right-of-way or CROSSING SITE without the previous consent in writing of the RAILWAY. 3. The SECOND PARTY shall not take any action which will prevent or tend to restrict the operations of trains over the CROSSING SITE. 2 4. The RAILWAY shall install and maintain the railroad crossing signs, hereinafter referred to as "CROSSBUCRS", and the Type Modified "G" Timber crossing structure, hereinafter referred to as "STRUCTURE", to be located at the CROSSING SITE at the sole cost of the SECOND PARTY. When the RAILWAY determines that the replacement of either the CROSSBUCES or STRUCTURE is more economical than their continued mainte- nance, it shall have the exclusive option to replace the CROSSBUCRS and/or STRUCTURE with comparable or improved facilities (example: automatic warning devices or concrete crossing structure). The installation of the CROSSBUCRS and crossing STRUCTURE and the replacement and maintenance costs of the same shall be the sole responsibility of the SECOND PARTY. 5. The RAILWAY may, at its option, from time to time, make additions, adjustments, or changes of its tracks or other facilities at the CROSSING SITE and any additional expense caused by or arising from the existence of the CROSSING SITE in performing that work, including adjustments to facilities of third parties and flagging of the CROSSING SITE shall be at the sole cost of the SECOND PARTY. 6. If to comply with the requirements of the laws of the State of Florida or any governmental body having power to promulgate or enforce regulations, or due to the managerial discretion of the RAILWAY, it becomes necessary hereafter to modify or change the elevation, alignment, or otherwise modify the location of or change the number of the RAILWAY'S 3 C O . tracks or other facilities, then all costs in connection with such modifications or changes caused by or arising from presence of the CROSSING SITE shall be borne solely by the SECOND PARTY. 7. The SECOND PARTY understands and agrees that the RAILWAY may switch over or block the CROSSING SITE and the use of the CROSSING SITE is subject to this prior use by the RAILWAY. Further, SECOND PARTY agrees that at such time as the RAILWAY might determine that automatic crossing devices hereinafter referred to as "DEVICES", are necessary, or should such DEVICES be required by 'a governmental body, the RAILWAY may install, maintain and replace such DEVICES and the SECOND PARTY shall pay for the full installation, mainte- nance and replacement costs of such DEVICES. Maintenance costs for the DEVICES shall be the same as those set forth in the "Schedule of Annual Cost of Automatic Highway Grade Crossing Traffic Control Devices" of the Florida Department of Transportation, as might be amended. 8. In consideration for the granting of this CROSSING SITE and in recognition of the exposure to hazard of the operation of the RAILWAY by reason of the installation, maintenance, and use of the CROSSING SITE, the SECOND PARTY hereby releases and agrees to indemnify the RAILWAY, its agents, servants and employees and save them harmless from and against all liabilities, claims, costs, judgments, attorney fees, and all other expenses arising from (A) loss 4 C O and damage to the property of the RAILWAY, the SECOND PARTY, or third persons, and for (B) personal injuries to or deaths of the SECOND PARTY, third persons, or the employees, agents, or servants of the RAILWAY caused by or arising out of presence, maintenance, use or removal of the CROSSING SITE, regardless of any negligence or alleged negligence on the part of the RAILWAY, or any of its agents, servants or employees. 9. The SECOND PARTY is advised that the RAILWAY main- tains a general liability master insurance policy, insuring the RAILWAY against claims arising from accidents related to the use of grade crossings across the tracks and right-of-way of the RAILWAY. The SECOND PARTY is further advised that an individual certificate must be, or has been, issued on this CROSSING SITE, with the additional premium based upon the primary use of the crossing. The SECOND PARTY agrees to reimburse the RAILWAY for its expense in maintaining the aforementioned insurance policy, or a similar policy, so as to provide coverage solely for the RAILWAY at this CROSSING SITE. The present annual premium is estimated to be $1,263.81 and the SECOND PARTY agrees to reimburse the RAIL- WAY in this amount, or any amount at which the premium is set. Should the RAILWAY discontinue the aforementioned policy, or a similar policy, the SECOND PARTY, at its own expense and Gpon written notice from the RAILWAY, agrees to 5 0 obtain and maintain a similar insurance policy or policies naming the RAILWAY as an insured, during the life of this license agreement. The policy or policies shall have a combined limit of $1,000,000.00 for personal injury, death and property damage, per occurrence, and shall be with an insurance company acceptable to the RAILWAY'S Manager of Insurance or other authorized official. 10. The SECOND PARTY waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any sort, including, but not limited to, special damages, severance damaqes, removal costs or loss of business profits resulting from the termination of this license agreement when the RAILWAY's property is taken by condemnation, or sold under threat thereof. This waiver and relinquishment applies whether (1) this license agreement is still in existence on the date of taking or sale; or (2) has been terminated prior thereof. 11. This license agreement is not assignable by the SECOND PARTY, as it is entered into by the RAILWAY upon the credit and reputation of the SECOND PARTY, and acceptance of rent from third parties shall not be construed as an assign- ment. 12. This license agreement is for a term of one year and shall be automatically renewed for an identical term and under the same provisions, until terminated. The SECOND PARTY shall, however, have no expectation of renewal, and the 3 C O term of this license agreement is only for the time specified herein, subject to its termination provisions and regardless of the length of time that the SECOND PARTY or its predecessors have had the use of this CROSSING SITE, whether by written agreement or otherwise. 13. Despite, and in superior standing to, the term specified in Paragraph 12, the RAILWAY may, at its discretion, for any reason whatsoever, terminate this license agreement at anv time by the giving of notice hereinafter provided. If this license agreement is for a term of one or more years, then 30 days prior notice of intention of RAILWAY to terminate this license agreement shall be given to the SECOND PARTY. If this license agreement is for any term less than one year, then 10 days prior notice of intention of RAILWAY to terminate this license agreement shall be given to SECOND PARTY: PROVIDED, however, RAILWAY may, at its option, cancel this license agreement for any default, breach or non-compliance of any provision of this license agreement by the SECOND PARTY by giving of 10 days' notice of such termination. 14. The SECOND PARTY agrees to pay a yearly rental of $500.00, plus any Florida Sales and Use Tax, for the licensing of the CROSSING SITE. Such rental is payable in cash in advance and without damand, but the RAILWAY may elect to present a"written bill. The foregoing provision shall also apply to any renewals. FA C O 15. Any notification given to either party in connection with this license agreement shall be in writing. If sent by certified or registered mail, such notice shall be deemed to have been given and received when deposited in the U. S. Mail, if properly addressed and with proper postage affixed. If sent otherwise, such notice shall be deemed to have -been given and received when delivery is made at the address shown below: RAILWAY: R. W. Wyckoff President Florida East Coast Railway Cqmpany P. 0. Drawer 1048 St. Augustine, Florida 32085 SECOND PARTY: City Clerk P. 0. Box -100 Edgewater, Florida 32032 Either party may change the official or address to whom notice is given at any time, by the method described in this paragraph. 16. The SECOND PARTY agrees to reimburse the RAILWAY for all costs incurred by the RAILWAY under this license agree- ment within thirty days (30) days of the date of billing by the RAILWAY, whether such costs are incurred as a result of the installation, maintenance, replacement, or removal of any CROSSBUCKS, STRUCTURE, or DEVICES at the CROSSING SITE or as otherwise.provided herein. 8 C � 17. At the termination of this license agreement, the RAILWAY shall remove any STRUCTURE, CROSSBUCKS or DEVICES at the CROSSING SITE, and return the CROSSING SITE to its proper condition, at the sole cost of the SECOND PARTY. At that time, the STRUCTURE, CROSSBUCKS or DEVICES shall become the property of the RAILWAY, free of any costs. 18. This license agreement contains the entire under- standing of the parties, connot be modified without the written agreement of both parties, and shall be construed according to the laws of the State of Florida. Should any paragraph be found to be unenforceable, the remainder of this license agreement shall continue in full force and effect. The failure to enforce any of the provisions by the RAILWAY shall not be construed as a waiver and the acceptance of rent shall not be construed as a waiver of a termination notice, once a refund of such rent is attempted by the RAILWAY. IN WITNESS WHEREOF, the FLORIDA EAST COAST RAILWAY COMPANY and the SECOND PARTY have each caused this instrument to be executed under seal in duplicate the day appearing below the signature of themselves or their authorized officials. SIGNED SEALED AND DELIVERED FLORIDA EAST COAST RAILWAY IN THE PRESENCE OF: COMPANY BY: President (Seal) ATTEST: Witnesses as to RAILWAY Asst. Secretary 9 DATE: CITY OF EDGEWATER, PLDRIDA BY: (Seal) 1i /AI�.�✓ ` Tit e: Mayor ATTEST: Witnesses as to SECOND PARTY Title: City Clerk/Administrator DATE: November 19, 1986 10 ® ! \ $ � { / { 4 2 y_ . _� ! |k } ( $ �$