|
F
<br />CROSSING AGREEMENT AMENDMENT BY AND AMONG
<br />FLORIDA EAST COAST RAILWAY, LLC, BRIGHTLINE TRAINS LLC,
<br />AND COUNTY, PERTAINING TO RAILWAY CROSSINGS
<br />COVERED BY EXISTING CROSSING LICENSE AGREEMENTS
<br />THIS Crossing Agreement Amendment (hereinafter "Amendment') is made and entered
<br />into this _ day of , 2018, by and among FLORIDA EAST COAST RAILWAY
<br />LLC, a Florida Limited Liability Company, with an address of 7411 Fullerton Street, Suite 300,
<br />Jacksonville, FL 32256 (hereinafter 'FECR') BRIGHTLINE TRAINS LLC, a Delaware Limited
<br />Liability Company (authorized to do business in Florida), with an address of 161 NW 6TH ST, STE.
<br />900, Miami, FL 33136 (hereinafter "BRIGHTLINE'), and COUNTY,
<br />a Political Subdivision of the State of Florida (hereinafter "COUNTY") (collectively, the "Parties").
<br />RECITALS
<br />WHEREAS, FECR owns and operates a rail corridor located within the boundaries of
<br />COUNTY; and
<br />WHEREAS, COUNTY has various roadways that cross the FECR right-of-way as listed
<br />in Exhibit A, as such Crossings are more particularly defined in various license and/or crossing
<br />agreements(hereinafter individually and in the aggregate, as the case requires, referred to as
<br />"Crossings"); and
<br />WHEREAS, FECR has entered into various license and/or crossing agreements with
<br />COUNTY that set forth the rights and obligations of the Parties with respect to each of the
<br />Crossings, as amended and assigned to date, as listed in Exhibit A (hereinafter "License
<br />Agreements"), and
<br />WHEREAS, BRIGHTLINE is developing an intercity passenger rail service from Miami to
<br />Orlando, to be located within FECR's railway right-of-way (hereinafter "Project"); and
<br />WHEREAS, FECR has agreed to allow BRIGHTLINE to utilize its rail corridor for the
<br />Project, and
<br />WHEREAS, in order to accommodate the Project it is necessary for BRIGHTLINE to
<br />install a second track which requires improvement, construction and alterations to existing
<br />Crossings; and
<br />WHEREAS, pursuant to the License Agreements, COUNTY is responsible for a portion
<br />of the costs related to improvements made to each Crossing; and
<br />WHEREAS, BRIGHTLINE has agreed to incur all costs related to the Crossing
<br />improvements to the extent required for the Project to ensure safety at public crossings and to
<br />commence passenger rail service; and
<br />WHEREAS, COUNTY finds that the terms of this Amendment will benefit the safety and
<br />welfare of the public, and
<br />WHEREAS, BRIGHTLINE has entered into a Settlement Agreement with COUNTY and
<br />others, dated . 2018 (hereinafter "Settlement Agreement");
<br />NOW THEREFORE, for the covenants contained herein and other good and valuable
<br />consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree
<br />as follows:
<br />Section 1. PURPOSE
<br />The purpose of this Amendment is to memorialize the agreement reached relating to the
<br />Project with respect to the Crossings and terms related to the construction, maintenance and
<br />safety of the Crossings.
<br />Section 2. LICENSE AGREEMENTS
<br />The Crossings, as improved for the Project, shall continue to be governed by the terms
<br />and provisions of the License Agreements, listed on Exhibit A.
<br />Section 3. BRIGHTLINE REPRESENTATIONS
<br />3.1 Initial Development Costs. BRIGHTLINE shall fund and be responsible for all
<br />necessary and reasonable capital investments to complete the initial installation of crossing
<br />improvements at the Crossings to the extent required for compliance with currently applicable
<br />laws and requirements for passenger rail service (hereinafter, the "Initial Development Costs").
<br />The Initial Development Costs may include some or all of the following, based on the individual
<br />requirements for each Crossing, as more specifically described in the final plans and drawings
<br />for each Crossing provided by BRIGHTLINE to COUNTY: the installation, relocation or alteration
<br />of new track and/or the existing track; cables; railroad devices; crossing structures, railroad
<br />signalization equipment; grade crossing surfaces; roadway, signage and pavement marking; co-
<br />habitation of roadway traffic signals impacted by the Project to railroad truss structures; relocation
<br />of any permitted COUNTY utilities and, any other element necessary to comply with all applicable
<br />laws and regulations. The Initial Development Costs do not include the costs of any other
<br />improvements to the Crossings related to the establishment of quiet zones or any other
<br />improvements required or desired by COUNTY, except as provided in the Settlement Agreement.
<br />Regardless of any provision to the contrary the License Agreements, COUNTY shall have no
<br />responsibility for any Initial Development Costs, except as provided in the Settlement Agreement.
<br />3.2 Maintenance of Existing Crossing. If there is required regular maintenance to
<br />be performed in connection with the currently existing crossing surface that is outside of the
<br />scope of the Project, that maintenance is not included within the scope of BRIGHTLINE's work
<br />and expense, provided, however, that BRIGHTLINE and FECR will endeavor to coordinate their
<br />respective work so as to minimize any existing crossing surface maintenance costs that the
<br />COUNTY may bear in accordance with the existing License Agreements.
<br />3.3 Standards BRIGHTLINE shall construct all track and crossing Project
<br />improvements at each Crossing in compliance with the crossing construction plans submitted by
<br />BRIGHTLINE to the COUNTY and incorporated in the Settlement Agreement, in Exhibit
<br />3.4 Coordination. BRIGHTLINE and COUNTY agree to coordinate and
<br />cooperate with each other at all times with regard to notice, permitting, mobilization and
<br />construction timing of the Project improvements. Elements of the Project may extend beyond
<br />the FECR right- of -way at certain Crossing(s) in order to complete the Project within
<br />1- -2-
<br />
|