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Section 4. FECR REPRESENTATIONS 4.1 Agreement with BRIGHTLINE. FECR hereby acknowledges that FECR and BRIGHTLINE have entered into an agreement under which BRIGHTLINE will utilize the FECR rail corridor for the Project. 4.2 Waiver. FECR hereby waives all rights to reimbursement from CITY of the Initial Development Costs under the License Agreements. 4.3 Maintenance of Existing Crossing During Project Construction. If, during the course of the Project construction work, there is required regular maintenance to be performed in connection with the currently existing crossing surface that is outside of the scope of the Project, such maintenance is not included within the scope of BRIGHTLINE's work and expense; provided, however, that BRIGHTLINE and FECR will endeavor to coordinate their respective work so as to minimize any existing crossing surface maintenance costs that CITY may bear in accordance with the existing License Agreements. FECR agrees to provide the estimate for such costs at least ninety (90) days in advance of an invoice. 4.4 Ongoing Maintenance. For so long as FECR is the party responsible for maintaining the Crossings following the Project upgrades, CITY may continue to interface solely with FECR in connection with that maintenance and CITY required reimbursement in connection therewith. FECR and CITY agree to coordinate and cooperate with each other regarding Crossing(s) maintenance with regard to notice, permitting, mobilization and construction. This provision shall survive any expiration or termination of this Agreement. 4.5 Ongoing Maintenance Costs. For so long as FECR is the party responsible for maintaining the Crossings FECR shall apportion the costs for crossing surface maintenance and future crossing upgrade charges with CITY as provided for in the License Agreements, subject to subject to Section 6 below. Charges for FECR's inspection of the crossing signals will continue to be assessed in accordance with FDOT's then -current standard chart for signal inspection costs, as such chart is updated and amended. This provision shall survive expiration or termination of the License Agreements, as amended. Section 5. CITY REPRESENTATIONS 5.1 Permits; Maintenance of Traffic. CITY will grant to BRIGHTLINE the necessary permits for the installation and construction of any Project elements that may be required beyond the FECR right-of-way, subject to the terms of the Settlement Agreement. 5.2 Maintenance of Existing Crossing During Project Construction. If, during the course of the Project construction work, there is required regular maintenance to be performed in connection with the currently existing crossing surface that is outside of the scope of the Project, such maintenance is not included within the scope of BRIGHTLINE's work and expense; and CITY acknowledges that FECR may apportion the appropriate share of such costs to CITY in accordance with the existing License Agreements. 6.3 Ongoing Maintenance Costs. CITY acknowledges that the costs for crossing surface maintenance and future crossing surface and signal upgrade charges shall be reimbursed by CITY as provided for in the License Agreements, subject to Section 6 below. Charges for FECR's inspection of the crossing signals will continue to be assessed in accordance with FDOT's then- current standard chart for signal inspection costs, as such chart is updated and amended. This provision shall survive expiration or termination of the License Agreements, as amended. Section 6. MAINTENANCE COST SHARING This Amendment shall not alter CITY's rights or obligations as to FECR, except that for a period of 14 years from the date BRIGHTLINE begins passenger revenue operations from West Palm Beach to Orlando, the CITY and Brightline shall share responsibility for paying the CITY's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: the CITY shall pay up to its Average Historical Cost, as defined below, each year, and Brightline shall pay the balance of such costs; provided, however, that if the CITY does not pay its share of such costs as contemplated herein, Brightline shall have no responsibility for paying any portion of such costs for the year in question. The CITY's Average Historical Cost shall be calculated by (a) determining the average of the total amount invoiced by FECR each year between 2011 and 2017 for crossing maintenance and rehabilitation costs other than signal inspection fees, and (b) adding to that average the amount invoiced by FECR for signal inspection fees during the year 2017. CITY shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. Section 7. THIRD PARTY BENEFICIARY The Parties agree that BRIGHTLINE shall be a third party beneficiary with respect to the License Agreements identified in Exhibit A attached hereto, with the right to enforce the terms and conditions thereof. BRIGHTLINE shall have no greater rights with respectto CITY than FECR has under the License Agreements. Each of the aforesaid License Agreements is hereby deemed amended to reflect the provisions of this Section 7. This provision shall survive any expiration or termination of the License Agreements, as amended. No provision of this Amendment is intended to, or shall be construed to, create any additional third party beneficiary or to provide any rights to any person or entity not a party to this Amendment, including but not limited to any citizen or employees of the CITY and/or BRIGHTLINE. Section 8. CONFLICTS WITH SETTLEMENT AGREEMENT For avoidance of doubt, as between BRIGHTLINE and CITY, in the event of a conflict between the terns of this Amendment and the Settlement Agreement, the terms of the Settlement Agreement shall govern. Section 9. EFFECTIVE DATE AND TERM 9.1 Effective Date. This Amendment will become effective upon approval by the governing body of the CITY and execution by all parties. 9.2 Tenn. The term of this Amendment will be concurrent with the term of each License Agreement to which it is applicable. Section 10. VENUE AND CHOICE OF LAW The License Agreements, as amended herein, will be governed by the laws of the State -4- -5-