R99-106RESOLUTION NO. R99-/~
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA,
AUTHORIZING AND APPROVING A BLANKET
LICENSE AGREEMENT BETVVEEN THE CITY OF
BOYNTON BEACH AND THE FLORIDA EAST COAST
RAILWAY COMPANY FOR UNDERGROUND UTILITY
LINES IN THE RAILROAD RIGHT-OF-WAY; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, this Agreement governs the maintenance of existing lines and
)rocedures for constructing new lines within the FEC Railway's right-of-way; and
WHEREAS, upon recommendation of staff, the City Commission has
Jeemed that execution of this Agreement will be in the best interests of the citizens
and residents of the City of Boynton Beach;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida
does hereby authorize and approve a Blanket License Agreement between the City
of Boynton Beach and the Florida East Coast Railway Company, providing for
underground utility lines in the railroad right-of-way, which Agreement is attached
hereto as Exhibit "A".
Section 2. This Resolution shall become effective immediately upon
passage.
PASSED AND ADOPTED this /~' day of August, 1999.
CITY O.,F BOYNT/D,N ~CH, FLORIDA
Vic, e/Mayor
Mayor Pro Tem~
Commissioner
DO NOT REMOVE FROM AGREEMENT
INSTRUCTIONS
Kindly have the appropriate authority sign ALL copies of the Agreement on Page __, where indicated.
Execution on behalf of a parmership should be accomplished by the General Partner of a limited
parmership and by all partners of a general partnership. One panner may sign on behalf of a genera]
partnership if accompanied by authorization to bind the parmership signed by all of the partners.
Execunon on behalf of a corporation should be accomplished by the President or Vice President. An
official other than the President or Vice President executing this insmament should furnish documentary
evidence of authori~ m execute and to bind the company. Secretary of the corporation should attest the
agreement and indicate date of execution.
Have cwo (2) separate persons witness the signature to the le~ thereofi AFFIXING THE
CORPORATE SEAL (if corporation is involved).
Please DO NOT alter or add to the provisions of this document. If, for any reason, you cannot execute
same in its present form. kindly return to the undersigned with your comments in writihg.
4. DO NOT INSERT EFFECTIVE DATE OF AGREEMENT ON PAGE 1.
Return ALL copies of the Agreement to this office. One fully executed copy of the Agreement will be
returned to you for your files upon completion of execution by Railway's Management.
6. Failure to execute the agreement exactly as indicated above will result in rejection by our Law
Department and require resubmission for proper execution.
THIS BLANKET LICENSE AGREEMENT, made and entered into, in duplicate, this 19th day of
November A.D., 1999 by and between FLORIDA EAST COAST RAILWAY COMPANY. hereinai~er called
"Railway" and the CITY OF BOYNTON BEACH, a political subdivision of the State of Florida, (100 East Boymon Beach
Blvd, Boynton Beach, FL 33425-0310~, hereinafter called "Licensee".
WITNESSETH:
WHEREAS, the Licensee has heretofore consU~cted and now maintains overhead and subgrade appliances and
FLxtures crossing on and across the Railway's fight of way and over and under the tracks and facilities of the Railway at points
listed on the schedule marked "Schedule A" attached hereto, and
WHEREAS, the Licensee may desire in the future to construct and maintain additional crossings using certain
pipes, poles, gays, anchors, suspension lines for the same, all of which are sometimes hereinafter called "applinnees",
"fix~ares", or "facilities" on and across the right of way and over and under the tracks of the Railway ~'om time to time at
other points along the right of way of said Railway, and
WHEREAS, both parties hereto are desirous of entering into an agreement which shall cover the terms upon
which such crossings have heretofore bean and may hereafter be mede.
NOW THEREFORE, the Railway, for valuable consideration and the covenants and agreements of said Licensee
hereinafter set forth, does hereby give to Licensee the right and privilege to construct, install and maintain said appliances,
fixtures, facilities or crossings on and aerussRailway's right of way and over and under the tracks and facilities of said
Railway at the points listed on the schedule marked "Schedule A" a~tached hereto and by this reference mede a part hereof,
and at such other points along its line of railroad that may'be hereafter requested in edvanee of any constructiun or
installation by the Licensee and subject to the approval of the Railway, upon the following terms and conditions, to-wit:
1. Whenever the Licensee shall desire to construct, modify, or maintain said appliances, fixtures, facilities or
crossings, it shall make written application to the Railway, as per attached form, in duplicate, together with twenty (20)
prints of plan and profile drawing containing all pertinent details for proposed crossing work. Said application will be
mailed m the Director, Industrial Development and Real Estate, Florida East Coast Railway Company, P.O. Drawer 1048.
St.i Augustine, Florida 32085-1048, along with check made payable m Florida East Coast Railway Company to cover
applicable non refundable application fee.
2. Plan shall show all information for carrier pipe and casing pipe, ffused, and angle of erossing, Railway survey
station, or distance re nearest mile post, right of way lines, tracks and all other Railway facilities near point of crossing.
profile shall show pipe or wire line in relation to actual profile of groand and tracks; if subgrade pipe, proposed method of
installation, and location ofjacking pit, which shall not be closer than thirty (30) feet f~om the canter of nearest track. Open-
cut method of installation through Railway's roadbed will not be permitted.
3. It is further mutually understood and agreed by and between the parties hereto that said subgrade crossing
mstullatinn shall be marked by the erection of a suitable toonument located on each side of the Railway's right of way.
4. The Railway shall, in writing, notify the Licensee whether it has any objeetious to the proposed crossing work
and if so, shall specify the same, in which evem, no crossing work shall be commenced by the Licensee hereunder until it
receives the wriReo approval of the Railway. If the Railway finds no objections to said crossing work, it will so notify the
LiCensee and the Licensee shall be permiRed and allowed to comtoence the crossing work proposed.
County: Palm Beach
ConUact Type: 43 Depar'unant File Reference: 312-4-0
5. All crossing work shall be of the usual strength end fitness for the purpose intended and be done in good end
workman-like manner by the Licensee at its sole cost end expense end in a manner satisfactory to the Railway. Within 30
days after completion of construetion or installation, Licensee shall submit to Railway a complete end detailed set of"as-
built" plen end profile drawings end further, shall certify in writing that fixture has been installed in substantial conformence
to the plan attached to the application.
6. The Licensee shall construct and maintain all appliences or fixtures crossing over, under or across the Railway's
tracks end right of way, in conformity with Railway's specifications, together with such other laws and regulations as may
be applicable.
7. Ifeny crossings hereunder consist ora pipe or conduit to extend under the tracks of the Railway, the same shall
be located net less then 5.5 feet below the bottom of ties in such tracks, and properly safe-guarded as may be necessary or
as required by Railway. lf~t is a wire llne to extend over the tracks of the Railway, the same shall be located not less than
43 feet above the mils with additional clearances at certain locations as prescribed by Railway. The poles carrying such wires
shall be doubie-bmcketed and of good end sufficient quality end size for purpose intended end located as hereinatter
designated by the Railway. All poles must be securely plented and fastened so as to prevent the same from falling on the
tracks or other property of the Railway or upon other wires on the right of way. No other facilities of the Licensee shall be
lO~ated upon eny of the Railway's property without its prior written permission.
8. In addition to the other terms of this agreement, eny subgrade or above grade crossing of the Railway's right
of way is subject to the terms of the "GENERAL SPECIFICATIONS FOR SUnG .RADE_~A2~.~ ~AB0~VE G~ ,1L~kDE
cRossINGS OF THE RAILWAY S RIGHT OF WAY" issued by the office of Chief~ngmger, monen ~zast coast gmlway
Compeny, the terms end conditions of which are incorporated herein by reference.
9. The Licensee shall, obtain end maintain ail necessary permits, licenses end franchises required by law.
Whenever under this agreement, Licensee's appliances, fixtures or faeififies are located near or adjacent to any
communication or signal lines of the Railway or eny licensed communication utility un the right of way of Railway, Licensee
shall at all times prevent interference in eny way with the construedon, maintenance, or operation of such crossed or adjacent
signal lines or communication lines, and in such event, Licensee shall adopt, use end maintain the best known and most
effective methods to protect the aforesaid communication lines froto physical hazard end inductive interference.
10. That Licensee shall end will cause due nofica, end in no event less than forty-eight (48) hours, excluding
Satnrdays, Sundays and holidays, to be given in writing to the Railway when Licensee or its contractor or enyone claiming
under Licensee, proposes to enter upon or cross the tracks, roadbed or other property of the Railway with such crossings
on for excavations therefor, in order that proper protection may be provided for Wains. If Railway shall object to the notice
as too short, or that the work has not therefore been authorized in writing by Railway, then no such work shall be
commenced until approval is obtained in writing from Railway.
11. That said appilenees, fzxmres, facilities or crossings of the Licousee shall not at eny time interfere with or
e~denger the track, roadbed, or other property of the Railway, or the operations, maintenance or improveme, nts of the
Railway, ur ofeny other party thereon; and Licensee shall at its own expense, on nonce from smd Railway, forthwith change,
improve or repair such appliance or fixtures as may be prescribed by said Railway.
12. Should the provisions contained harein cause eny chen4ge or alterations in the lacation or arrangement of the
wires, poles, appliencas, fixtures or facilities of tho Railway or the wires poles, applienees, fixtures or facilities of uny
licensed communication utility on the right of way of Railway, the cost of such alternations or re-arrengemonts shall be paid
by the said Licensee.
13. Licensee agrees that if, by reason of any chenges or additions made at eny time by the Railway in its tracks.
right of way, stractnres and appliances thereon, or property, it becomes necessary tn chengn the location of all or eny part
of the said crossings of the Licensee therefor, ench chenges as are necessary shall be mede by Licensee promptly at the
request of the Railway and at sole cost and expense of Liceusee.
14. Licensee hereby assumes, and shall at all times hereafter release, indemnify, defend and save Railway harmless
from and against any and all liability, less, claim, suit, damage, charge or expanse which Railway may suffer, sustain, incur
or in any way be subjected to, on account of denth of ur injury to any person whomsoever (including officers, agents,
employees or invitees of Railway), and for damage to or loss of 0r destruction of any property whatsoever, arising out of,
resulting fi.om, or in any way connected with the presence, existence, operations or use of the appliance, fixture or facility
or any structure in connection therewith, or restoration of premises of Licensor to good order or condition after removal,
except when proven to have been caused solely by the fault, failure or negligence of Railway. However, during any period
of actual construction, repair, maintenance, replacement or removal of the appliance, fixture or facility, wherein agents or
personnel of Licensee are on the railroad right-of-way, Licensee's liability hereunder shall be absolute, to the extent
permitted by local law, irrespective of any sole fault, failure or negligence of Railway. Notwithstanding anything to the
contrary contained in this agreement, no pro,nslon herein is mtanded or shall be consttued as a wmver of sovereign tmmumty
beyond the provisions of Section 768.28, Florida Statutes.
15. Licensee covenants to pay Railway all costs of supervision, labor and material incurred by Railway in
supervising, proteotmg and restoring the property of the R~ulway by reason ofoparatmns ofLmense .
~ 16. Commencing with the initial term of this Agreement, Licensee shall pay in advance unto Railway for each year
or ~action thereof, of the life ofsuid crossings or other facilities, the applicable sums as listed on Schedule "A" attached
hercto and made a part hereof, together with such future increases that may be dictated by market conditions.
17. In the event any other appliances, fixtures or facilities or crossings upon or across the right of way of the
Railway shall hereinafter be found to exist as of the date hereof, although not shown on Schedule attached hereto, or to have
be~n added during the life of this agreemant, such appliances, fixtures or facilities or crossings upon or across the right of
way of the Railway shall be part of this agreement by amendment thereto, given similar data as for the crossings or other
facilities shown on the attached Schedule and all the terms of this agreemant shall apply to such additional wire line facilities.
18. This agreement and Licensee's right hereunder shall not be assigned nor mortgaged by said Licensee without
prior written consent of the Railway having been first obtained.
i 19. Licensee waives and relinquishes any legal rights and monetary claims which it might have against Florida
E4st Coast Railway Company for full compensation, or damages of. any sort,.including but not limited to .s. peoial.demages;
severance damages, removal costs or loss of business profits resulting from ~ loss of ocoupancy of the hcansan property
specified in this Agreement whether such property is taken by eminent doma~ proceedings or sold under the threat thereof.
20. It is farther mutually understood and agreed by and between the parties hereto that Licensee will not perform
any work on Rallway's property without having a railroad watchman present at all ~nus work, hereunder is being performed,
if lone is deemed to be necessary by the Railway's Chief Engineer or other designated Company official; further, that
Licansan covenants that it will include in uny contract which it lets for the whole or any pm of the said work to he performed
hereunder by or for the Licensee, each and every of the following terms and conditions of the page attached hereto and made
a ipart hereof entitled, "INDEIviNITY OF FLORIDA EAST COAST RAILWAY COMPANY AND INSURANCE
REQUIREMENTS". Not withstanding the foregoing, it is understood and agreed between the parties that the CITY of
BOYNTON BEACH may self insure against liabilities which may arise under this agreement.
21. In the event Licensee shall default in the performance of any of the covenants contained in this agreement to
be kept and performed by Licensee, and such default shall con, hue for ten (10) days after written notice thereof shall have
b~an given by the Railway tu the Lessee, than at the option of the Railway, the license hereby granted may .be. decl~.,ed
forfeited as to the crossing or crossings or other facilities where such default occurred and thereupon all ngl~ts or me
L~consee shall cease, us to such crossing or crossings or other facilities and Licensee will, at its own expense, remove said
wrre or pipe lines fi.om the properoj of the Railway at such crossing or crossings, or other facilities. In the event of failure
of Licansee to do so. the Licensee will promptly reimburse the Railway for its cost of doing the same.
22. This agreement shall supersede ail other conuacts end agreements heretofore made between the Railway, end
former Trustees of its property, on the one part, end the Licensee and ail other predecessors and subsidiaries of the Licensee.
on the other part, covering ail crossings, appliences, fixtures or facilities presently on or across the right of way of the
Railway. The existing crossings shail be conclusively held to have been constructed under equivalent terms and conditions
as those herein, and shall be maintained under the terms of this agreement.
23. Either party hereto shall have the right to cancel this agreement as to any one or more ofthe existing crossings,
appliances, fixtures or facilities as snown on the attached Schedule or to any future crossings, appliances, fixtures or facilities
at any time upon thirty (30) days' notice in writing to the other party.
24. This agreement shall be for a term of one (1) year and shall be automatically renewed for additional terms of
one (1) year subject to the terms and conditions herein contained. PROVIDED ALWAYS, that this agreement shail be
subject m cencellation during the initial term or of eny renewai term, in the manner provided herein in Paragraph No. 23.
25. That this agreemem shall be binding upon the successors or the heirs end assigns of Licansee and none of the
covenants or agreements herein contained shall be waived or modified except by both parties hereto in writing end no aileged
verbal waiver or modification shail be binding under any circumstances.
26. If Licensee be a municipality or a public or quasi public corporation then it agrees that no assessmem or other
charges or eny nature whatsoever shall be levied or made against the Railway or against its proper~ on account of the
installation or existence of Licensee's facilities at this location.
27. NON-PAYMENT, It is expressly agreed by and between the parties hereto that eny obligations of the
Licensee under the terms of this agreement which are not paid within 30 days of presentation of bills for same by the
Railway shall bear interesl at the rate of twelve percent (12%) per annum from the date of preseotation of the bill until same
shall be paid.
28. This Agreement shail be construad in accordenco with the laws of the State of Flotida.
29. This Agreement shall constitute the entire underslunding of the parties on the subject matter hereof and each
acknowledges and affirms that no promises, agreements, representations, terms or conditions other than contained and set
forth in this Agreement, either express of implied, have been made or relied upon.
30. RAILWAY AND LICENSEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
VCAIVE THE RIGHT THAT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED ON THIS AGREEMENT, OR ARISING OUT OF. UNDER OR IN CONNECTION WITH THIS
AGREEMENT. rilE PARTIES SPECIFICALLY AGREE TO VENUE IN St Johns COUNTY, FLORIDA.
31. In the event of litigation between the parties in connection with ~ Agreement, the prevailing party shall be
entitled to a reasonable attorney's fee.
312-4-0-AGM. DOC
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed in duplicate the day
and year first herein written.
Signed, sealed and delivered
in the presence of:
FLORIDA EAST COAST RAILWAY
COMPANY, a Florida corporation,
Ass~mt Seca~
The CITY OF BOYNTON BEACH, a
political subdivision of the State of Floridu
Ol~ial Title
312-4-O-AGM-DOC
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