|
omission by a municipality. The municipality shall also be required, as a condition of obtaining
<br />the benefit of such amendments, to execute a separate agreement with Brightline in the form
<br />attached as Exhibit H, in which the municipality shall make the commitments reflected in
<br />paragraph 11 below. The Town of Jupiter shall also be required, as part of such separate agreement
<br />with Brightline, to agree to the United States Coast Guard operating rule for the Loxahatchee River
<br />Bridge reflected in paragraph 7(e) below, and to make the commitments reflected in paragraph
<br />7(f) below. The amendments shall further provide that the municipality shall remain solely
<br />responsible for paying FECR the applicable license fee for each crossing per year.
<br />(k) Based on Brightline's analysis of the Federal Railroad Administration's
<br />("FRA") Quiet Zone calculator, Brightline believes that, in view of the crossing improvements
<br />identified in Exhibits C-1 and C-2, Martin will qualify with the FRA as a Quiet Zone so long as
<br />Martin, in its entirety, applies for a Quiet Zone designation. Based on Brightline's analysis of the
<br />FRA Quiet Zone calculator, Brightline further believes that, in view of the crossing improvements
<br />to be made pursuant to Brightline's separate agreement with the Palm Beach County
<br />Transportation Planning Agency, the area within Palm Beach County north of West Palm Beach
<br />will also qualify with the FRA as a Quiet Zone so long as that area, in its entirety, applies for a
<br />Quiet Zone designation. Brightline agrees to support the applications for Quiet Zone designations
<br />by Martin, any municipality within Martin, Palm Beach County, and/or any municipality within
<br />Palm Beach County north of West Palm Beach that qualify under FRA's Quiet Zone calculator for
<br />a Quiet Zone designation.
<br />Indian River Roadway Crossin¢ Designs and Maintenance.
<br />(a) The Parties agree that there are 32 grade crossings within Indian River
<br />where the FECR ROW intersects with an existing roadway, as listed in Exhibit B (the "Indian
<br />River Crossings'l.
<br />(b) The Parties further agree that Brightline is proposing modifications to 32 of
<br />the Indian River Crossings as part of the Brightline Project (the "Indian River Crossings to be
<br />Modified"). These modifications shall be paid for by Brightline.
<br />(c) For the Indian River Crossings to be Modified, Brightline shall, at its own
<br />expense, install the safety and other improvements reflected in the designs and related
<br />documentation attached as Exhibit D-1 and D-2; provided that Brightline's payment for ROW
<br />sidewalk installation is limited to the sidewalks specified in Exhibit D-1. Those improvements
<br />include, inter alfa: (i) the addition of exit gates at the crossings located as specified in Exhibit D-
<br />1; (ii) the addition of V PD at the crossings located as specified in Exhibit D-1; and (iii) the addition
<br />of sidewalks at the crossings located as specified in Exhibit D -l. Indian River accepts the
<br />improvements reflected in Exhibit D-1 and D-2. Should Indian River desire the installation of
<br />additional safety or other improvements not reflected in Exhibit D-1 and D-2, those additional
<br />improvements shall be subject to the reasonable approval of FECR and Brightline. Indian River
<br />shall be solely responsible for the cost of design and construction of such additional improvements,
<br />and the parties shall coordinate in good faith on the design and construction of such improvements,
<br />so as not to delay the design or construction of the Brightline Project. Indian River shall pay its
<br />share of such costs to Brightline within sixty (60) days after Brightline provides Indian River proof
<br />of payment to contractors. In the event that Indian River or Brightline elects to seek federal, state,
<br />or other grant money to defray the cost of any improvement under this paragraph, the other party
<br />shall coordinate in good faith with such efforts. Likewise, if Indian River and/or Brightline is
<br />successful in obtaining grant money for any improvement the cost of which is to be shared on an
<br />equal basis, their payment obligations shall be reduced on an equal basis. For example, if Indian
<br />River were to obtain a grant in the amount of $100,000 for the installation of improvements the
<br />cost of which is to be shared on an equal basis, Indian River's and Brightline's respective payment
<br />obligations for those improvements would be reduced by $50,000 each.
<br />(d) Of the Indian River Crossings to be modified, 21 involve roadways within
<br />Indian River's permitting jurisdiction. These 21 crossings are listed in Exhibit B. For those 21
<br />crossings and those crossings located in the City of Sebastian and at Hawk's Nest Road, Indian
<br />River has requested that Brightline install certain pavement markings, signage and other
<br />improvements outside the FECR ROW as specified in Exhibit D-1 at Brightline's expense, and
<br />Brightline agrees to do so. Indian River agrees to maintain the pavement markings, signage and
<br />other improvements outside the FECR ROW at its own expense.
<br />(e) The parties acknowledge and agree that the additional improvements being
<br />made pursuant to this paragraph 3 are being made as an accommodation in furtherance of
<br />settlement and shall not be deemed an admission that the improvements are necessary or advisable
<br />at any particular location. Nor shall they be deemed precedent that similar improvements are
<br />necessary or advisable at any other location.
<br />(f) Prior to any construction within Indian River's right -0f -way, Brightline
<br />shall apply for and obtain an Indian River right-of-way permit. Indian River agrees that Brightline
<br />may use a single application for all such construction, a copy of which is attached hereto as Exhibit
<br />E-2. Such single application shall include the required information for each of the 21 roadway
<br />crossings within Indian River's permitting jurisdiction. Indian River further agrees that, upon
<br />submission of the completed application, the right-of-way permit will be issued. If Indian River
<br />fails to issue the right-of-way permit as required herein, Brightline shall have no obligation under
<br />this Agreement to install any improvement, pavement marking, or signage outside the FECR
<br />ROW. Indian River agrees to waive the security requirement for such permit. Such waiver is
<br />predicated on Brightline's agreement to return Indian River's right-of-way in at least the same
<br />condition as before the commencement of such installation, and Brightline's failure to do so shall
<br />constitute a breach of this Agreement.
<br />(g) Indian River agrees to approve Brightline's maintenance of traffic plans for
<br />the foregoing crossing work, provided such plans are in compliance with federal, state, and local
<br />maintenance of traffic requirements.
<br />(h) Indian River shall execute amendments to the Existing Indian River
<br />Crossing Agreements, in the form attached as Exhibit F. The amendments shall not alter Indian
<br />River's rights or obligations as to FECR, except that for a period of 14 years from the date
<br />Brightline begins passenger revenue operations from West Palm Beach to Orlando, Indian River
<br />and Brightline shall share responsibility for paying Indian River's road surface, signal, and other
<br />crossing maintenance and rehabilitation costs, as follows: Indian River shall pay up to $235,500
<br />of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and
<br />rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided,
<br />however, that if Indian River does not pay its share of such road surface, signal, and other crossing
<br />maintenance and rehabilitation costs as contemplated herein, Brightline shall have no
<br />-5- -6-
<br />
|