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HomeMy WebLinkAbout11/20/2018_SpecialCallA 0 BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY FLORIDA COMMISSION AGENDA TUESDAY, NOVEMBER 20, 2018 - 5:00 PM Commission Chambers Indian River County Administration Complex 180127th Street, Building A Vero Beach, Florida, 32960-3388 www.ircgov.com COUNTY COMMISSIONERS Peter D. O'Bryan, Chairman, District 4 Jason E. Brown, County Administrator Bob Solari, Vice Chairman, District 5 Dylan Reingold, County Attorney Susan Adams, District 1 Jeffrey R. Smith, Clerk of the Circuit Court and Comptroller Joseph E. Flescher, District 2 Tim Zorc, District 3 Special Call Meeting 1. CALL TO ORDER 2.A. A MOMENT OF SILENT REFLECTION FOR FIRST RESPONDERS 2.B. INVOCATION Commissioner Susan Adams 3. PLEDGE OF ALLEGIANCE Commissioner Joseph E. Flescher 4. COUNTY ATTORNEY MATTERS Page 1 of 2 November 20, 2018 4.A. Martin County, Indian River County, and CARE -FL Brightline Settlement Agreement The County Attorney's Office recommends that Indian River County Board of County Commissioners consider the framework of a settlement agreement. If the Board wishes to enter into a settlement agreement, the County Attorney's Office recommends that the Board adopt a resolution approving the settlement agreement and authorize the chair to execute the settlement agreement and any and all documents necessary to effectuate the settlement agreement, after review and approval by the County Attorney. Attachments: Staff Report Draft Settlement Aareement Draft Settlement Aareement Exhibits 5. ADJOURNMENT Except for those matters specifically exempted under the State Statute and Local Ordinance, the Board shall provide an opportunity for public comment prior to the undertaking by the Board of any action on the agenda, including those matters on the Consent Agenda. Public comment shall also be heard on any proposition which the Board is to take action which was either not on the Board agenda or distributed to the public prior to the commencement of the meeting. Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal will be based. Anyone who needs a special accommodation for this meeting may contact the County's Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 at least 48 hours in advance of meeting. Anyone who needs special accommodation with a hearing aid for this meeting may contact the Board of County Commission Office at 772-226-1490 at least 20 hours in advance of the meeting. The full agenda is available on line at the Indian River County Website at www.iregov.com The full agenda is also available for review in the Board of County Commission Office, the Indian River County Main Library, and the North County Library. Commission Meetings are broadcast live on Comcast Cable Channel 27 Rebroadcasts continuously with the following proposed schedule: Tuesday at 6: 00 p. m. until Wednesday at 6:00 a. nL, Wednesday at 9:00 a.m. until 5:00 p.nt., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m. November 20, 2018 Page 2 of 2 Dylan Reingold, County Attorney William K. DeBraal, Deputy County Attorney Kate Pingolt Cotner, Assistant County Attorney County Attorney's Matters - B.C.C. 11. 20.78 Of of NDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney Q(7-' DATE: November 19, 2018 ATTORNEY SUBJECT: Martin County, Indian River County, Indian River County Emergency Services District, CARE -FL and Brightline Trains LLC Litigation BACKGROUND. On March 17, 2015, the Indian River County Board of County Commissioners (the "Board") authorized the County Attorney's Office to file a complaint in federal court challenging the U.S. Department of Transportation's (USDOT's) approval of the issuance of the $1.75 billion of tax exempt private activity bonds for the All Aboard Florida project. On March 24, 2015, the Board authorized the County Attorney's Office to include the Emergency Services District as a plaintiff in the case. As the Board is aware, as a result of the decision in that case, the USDOT withdrew its private activity bond allocation for Phase II of the All Aboard Florida project. On December 19, 2017, the Board authorized the County Attorney's Office to file a lawsuit against the USDOT in conjunction with issuance of the Record of Decisioi for Phase II of the All Aboard Florida project. On February 13, 2018, Martin County, Indian River County and CARE -FL filed a lawsuit in federal court challenging the validity of the private activity bonds and the National Environmental Policy Act ("NEPA") process for Phase H of the All Aboard Florida project. The parties have filed all of the papers with the court, and the court has scheduled oral argument for November 27, 2018. This fall, Brightline expressed a willingness to engage Martin County, Indian River County and CARE -FL in settlement discussions. As a result of these discussions, the parties have negotiated a settlement that would address many of the concerns raised by the Counties and CARE -FL. Although the terms have not been finalized, the County Attorney's Office wishes to present the general framework for a final settlement agreement between the parties. The Martin County Board of County Commissioners will be considering this matter at its meeting on November 20, 2018. FAAuu y'JindntGE FFALLBCCUgendo NemmkBrigAdine &tfk NAgms—nr.doc Board of County Commissioners November 19, 2018 Page Two As part of a settlement agreement, Brightline is agreeing to install additional safety measures in both Martin County and Indian River County above that required by the Federal Railroad Administration. The additional improvements in Indian River County include exit gates and vehicle presence detection at Roseland Road, I' Street and 4t" Street. This will mean all of the crossings in the unincorporated areas of Indian River County will have exit gates and vehicle presence detection. The improvements will also include improving the vertical transition pedestrian and bicycle facilities at a number of highway railroad crossings in the unincorporated areas of Indian River County. Brightline will pay for the installation of these improvements. Brightline is also agreeing to install fencing in both Indian River County and Martin County. Brightline will install fencing—at Brightline's expense—where required or recommended by the Federal Railroad Administration at its own cost. Additionally, Brightline will pay for the installation of up to $1,000,000 of fencing in Martin County and $1,000,000 of fencing in Indian River County. For this fencing, the counties will be responsible for the maintenance of the fencing and Florida East Coast Railway ("FECR") license fees. Brightline will also work with the counties with respect to accidents at the crossings. Brightline will promptly notify first responders in the impacted county or municipality of any such accidents with cars or pedestrians. Brightline will meet with Martin and Indian River first responders and engineering employees no less than annually to review all accidents in the counties from the preceding year and jointly evaluate if additional actions are necessary to prevent similar accidents. Additionally, with respect to the cost of maintenance at the intersections, there will be a 14 -year cap on the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, with Brightline paying the balance of such costs. The annual cap will start when Brightline begins passenger revenue operations from West Palm Beach to Orlando. The annual maintenance costs during the 14 years will actually be lower than that having been paid by Indian River County over the past several years. This benefit will be available to municipalities within Indian River as well. Additionally, the maintenance costs in years 15, 16 and 17 will also have a cap, which will prevent Brightline and FECR from pushing off major improvements until after the cap is removed. Indian River County's annual maintenance costs will be slightly lower than that of Martin County. Also, within five (5) years of commencement of Brightline's passenger revenue train service from West Palm Beach to Orlando, Brightline will build at least one train station in Martin, St. Lucie, or Indian River County. Brightline will have at least two northbound and two southbound trains stop at the station each day. The applicable local government and Brightline will be splitting the cost of the construction of the station(s). Brightline will also be addressing safety and navigability issues pertaining to the Loxahatchee and St. Lucie River Bridges and partnering with Martin County on a pedestrian flyover. RUttomeylbn&a GENERALO C Cf4gendu Me-811ghrltne Sert1—ent Ag—encdnc Board of County Commissioners November 19, 2018 Page Three As part of the agreement, Indian River County and Martin County will dismiss the current lawsuits on November 26'. Additionally, Martin County and Indian River County will not oppose or challenge, or encourage others to oppose or challenge, any pending or future federal, state, or local approval, permit, or authorization relating to the Brightline Project, or the financing cf the Brightline Project. There will also be a limitation on seeking additional review relating to the improvements Brightline will make as part of the agreement during the period of construction and the first five (5) years of Brightline passenger revenue operations between West Palm Beach and Orlando. Additionally, during the period of construction and the first three (3) years of Brightline passenger revenue operations between West Palm Beach and Orlando, Martin County and Indian River County will not pass any resolution or adopt any other official act that publicly supports or actively encourages third parties to support any federal or state legislation, or new County laws or regulations that would directly and adversely impact the Brightline Project. And Martin County and Indian River County also agree not to pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal, state, county, or local laws or regulations that would directly and adversely impact Brightline's ability to comply with any term of the settlement agreement or vary any commitment made under the settlement agreement. The parties will also agree to a mutual release of all claims against the other parties. The County Attorney's Office believes that this settlement framework is the best proposal that could be obtained for Indian River County, Martin County and the community and that this proposal will no longer be available once the oral argument is conducted on November 27th. The County Attorney's Office believes that this settlement would provide significant safety and financial benefits to the County and its citizens. RECOMMENDATION. The County Attorney's Office recommends that Indian River County Board of County Commissioners consider the framework of a settlement agreement. If the Board wishes to enter into a settlement agreement, the County Attorney's Office recommends that the Board adopt a resolution approving the settlement agreement and authorize the chair to execute the settlement agreement and any and all documents necessary to effectuate the settlement agreement, after review and approval by the County Attorney. F:LUfomW,LindMGF,VERALIB CCLngmdo M—s1. righdine SenfemenrAgreemenlrbc DRAFT SETTLEMENT AGREEMENT This Settlement Agreement ("Settlement Agreement" or "Agreement") is made and entered into as of November 2018 (the "Effective Date"), by and between Martin County, Florida, a political subdivision of the State of Florida ("Martin"), Indian River County, Florida, a political subdivision of the State of Florida ("Indian River"), the Indian River County Emergency Services District, a dependent special services district ("Indian River ESD"), Citizens Against Rail Expansion in Florida, a non-profit group ("CARE"), and Brightline Trains LLC (`Brightline") (collectively, the "Parties"). RECITALS WHEREAS, Martin is a political subdivision of the State of Florida which is governed by a Board of County Commissioners (the "MARTINBCC"); WHEREAS, Indian River is a political subdivision of the State of Florida which is governed by a Board of County Commissioners (the "INDIANRIVERBCC"); WHEREAS, the Indian River ESD is a dependent special district which is administered by Indian River and is governed by the INDIANRIVERBCC sitting as the Board of Commissioners of the district; WHEREAS, CARE is a non-profit group organized under Florida law primarily consisting of community leaders, residents, and organizations in Martin, Indian River, and northern Palm Beach County, including the Town of Jupiter; WHEREAS, Brightline is a corporate entity tasked with developing and operating express passenger rail service between Miami and Orlando, Florida (the `Brightline Project"); WHEREAS, the bulk of Brightline's planned passenger service route, including the portion which will pass through Martin and Indian River, will use the Florida East Coast Railway LLC ("FECR") railroad right-of-way (the "FECR ROW"); WHEREAS, Martin has independent roadway crossing agreements with FECR, which are listed in Exhibit A (the "Existing Martin Crossing Agreements"); WHEREAS, Indian River has independent roadway crossing agreements with FECR, which are listed in Exhibit B (the "Existing Indian River Crossing Agreements"); WHEREAS, to accommodate Brightline's express passenger service, Brightline is upgrading the portion of the FECR ROW between Miami and Cocoa by, inter alio, upgrading existing railroad ties and tracks, installing a second set of mainline tracks, improving roadway crossings, and installing and activating Positive Train Control systems; WHEREAS, Brightline has received an allocation of Private Activity Bonds ("PABs") from the United States Department of Transportation ("USDOT") in connection with construction of the Brightline Project; 0 WHEREAS, the Florida Development Finance Corporation ("FDFC") has authorized issuance of the PABs; WHEREAS, Martin, Indian River, the Indian River ESD, and CARE have filed a Complaint challenging authorization of the PABs in the United States District Court for the District of Columbia in a case entitled Martin County, Florida, et. al. v. U.S. Department of Transportation, et al., Case No. 1:18-cv-00333-CRC ("PABs Litigation"); and WHEREAS, Martin, Indian River, the Indian River ESD, CARE, and Brightline desire to settle their differences in order to avoid the time, expense, and uncertainty of further litigation. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and other good and valuable consideration the receipt and the sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Definitions and Recitals. The definitions and recitals above are incorporated herein by reference and made a substantive part of this Settlement Agreement. 2. Martin Roadway Crossing Designs and Maintenance. (a) The Parties agree that there are 26 grade crossings within Martin where the FECR ROW intersects with an existing roadway, as listed in Exhibit A (the "Martin Crossings"). (b) The Parties further agree that Brightline is proposing modifications to 26 of the Martin Crossings as part of the Brightline Project (the "Martin Crossings to be Modified"). These modifications shall be paid for by Brightline. (c) For the Martin Crossings to be Modified, Brightline shall, at its own expense, install the safety and other improvements reflected in the designs and related documentation attached as Exhibit C-1 and C-2; provided that Brightline's payment for ROW sidewalk installation is limited to the sidewalks specified in Exhibit C-1. Those improvements include, inter alia: (i) the addition of exit gates at the crossings located as specified in Exhibit C- 1; (ii) the addition of Vehicle Presence Detection ("VPD") at the crossings located as specified in Exhibit C-1; and (iii) the addition of sidewalks at the crossings located as specified in Exhibit C- 1. Martin accepts the improvements reflected in Exhibit C-1 and C-2. Should Martin desire the installation of additional safety or other improvements not reflected in Exhibit C-1 and C-2, those additional improvements shall be subject to the reasonable approval of FECR and Brightline. Martin shall be solely responsible for the cost of design and construction of such additional improvements, and the parties shall coordinate in good faith on the design and construction of such improvements, so as not to delay the design or construction of the Brightline Project. In the event that Martin or Brightline elects to seek federal, state, or other grant money to defray the cost of any improvement under this paragraph, the other party shall coordinate in good faith with such efforts. Likewise, if Martin and/or Brightline is successful in obtaining grant money for any improvement the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. For example, if Martin were to obtain a grant in the amount of $100,000 for the installation of improvements the cost of which is to be shared on an equal basis, Martin's and Brightline's respective payment obligations for those improvements would be reduced by $50,000 each. -2- (d) Of the Martin Crossings to be Modified, 19 involve roadways within Martin's permitting jurisdiction. Those 19 crossings are listed in Exhibit A. For those 19 Martin Crossings, Martin has requested that Brightline install pavement markings and signage outside the FECR ROW at Brightline's expense and Brightline agrees to do so. Martin agrees to maintain the pavement markings and signage at its own expense. (e) The parties acknowledge and agree that the additional improvements being made pursuant to this paragraph 2 are being made as an accommodation in furtherance of settlement and shall not be deemed an admission that the improvements are necessary or advisable at any particular location. Nor shall they be deemed precedent that similar improvements are necessary or advisable at any other location. (f) Prior to any installation of pavement markings and signage within Martin's right-of-way, Brightline shall apply for and obtain a Martin County Right Of Way Use Permit. Martin agrees that Brightline may use a single Right Of Way Use Permit Application for all pavement markings and signage, a copy of which is attached hereto as Exhibit E-1. Such single Application shall include the required information for each of the 19 roadway crossings within Martin's permitting jurisdiction. Martin further agrees that, upon submission of the completed Right of Way Use Permit Application, the Right of Way Use Permit will be issued. If Martin fails to issue the Right of Way Use Permit as required herein, Brightline shall have no obligation under this Settlement Agreement to install any improvement, pavement marking, or signage outside the FECR ROW. Martin agrees to waive the security requirement for such permit. Such waiver is predicated on Brightline's agreement to return Martin's right-of-way in at least the same condition as before the commencement of such installation, and Brightline's failure to do so shall constitute a breach of this Agreement. (g) Martin agrees to approve Brightline's maintenance of traffic plans for the foregoing crossing work, provided such plans are in compliance with federal, state, and local maintenance of traffic requirements. (h) Martin shall execute amendments to the Existing Martin Crossing Agreements, in the form attached as Exhibit F. The amendments shall not alter Martin'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 "14 -year period" or the "14 years"), Martin and Brightline shall share responsibility for paying Martin's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Martin shall pay up to $251,000 of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Martin does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, Brightline shall have no responsibility for paying any portion of such costs for the year in question. For example, if Martin were to receive a total of $200,000 in invoices from FECR in a particular calendar year, Martin would be obligated to pay those invoices in full; but if Martin were to receive a total of $300,000 in invoices from FECR in a particular calendar year, Martin would only be obligated to pay $251,000, and upon such payment, Brightline would be obligated to pay the balance due — $49,000. The amendments shall also provide that, for each of the first three years after the 14 -year period concludes, Martin and Brightline shall share responsibility for paying Martin's road surface, -3- signal, and other crossing maintenance and rehabilitation costs, as follows: Martin shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and Brightline shall pay the balance of such costs; provided, however, that if Martin 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. Martin's agreement to pay these averaged annual invoiced costs shall not be deemed an admission that Martin agrees that previous FECR invoices were accurate or due and payable. If Martin reasonably disputes an FECR invoice, Brightline agrees Martin is not in breach of this Agreement. The amendments shall further provide that Martin shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and that: (i) Martin shall not indemnify, defend, or hold harmless Brightline for any reason whatsoever in connection with the Existing Martin Crossing Agreements, as amended, except as otherwise provided in this Agreement; (ii) Martin shall not add Brightline onto its insurance for any reason whatsoever in connection with the Existing Martin Crossing Agreements, as amended; and (iii) Martin shall not consent to waive its sovereign immunity for any action that involves Brightline. Martin acknowledges that sovereign immunity does not apply for alleged or actual breaches of express, written agreements and amendments thereto entered into by Martin that are duly authorized by its Board of County Commissioners, including this Agreement and the Existing Martin Crossing Agreements. (i) The maintenance fees for the North County Line crossing are split between Martin and St. Lucie County, and the maintenance fees for the South County Line crossing are split between Martin and Palm Beach County. With respect to these specific crossings, this Agreement only applies to Martin's share of the respective maintenance fees. 0) The municipalities within Martin that currently have independent roadway crossing agreements with FECR, and the adjacent Town of Jupiter which also has independent roadway crossing agreements with FECR, shall be afforded the opportunity to execute amendments to those agreements in the form attached as Exhibit G. The amendments shall not alter the municipality's rights or obligations as to FECR, except that during the 14 -year period, the municipality and Brightline shall share responsibility for paying the municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: the municipality 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 municipality 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 municipality'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. Martin shall not be deemed in breach of this Agreement due to any action, inaction, or -4- omission by a municipality. The municipality shall also be required, as a condition of obtaining the benefit of such amendments, to execute a separate agreement with Brightline in the form attached as Exhibit H, in which the municipality shall make the commitments reflected in paragraph 11 below. The Town of Jupiter shall also be required, as part of such separate agreement with Brightline, to agree to the United States Coast Guard operating rule for the Loxahatchee River Bridge reflected in paragraph 7(e) below, and to make the commitments reflected in paragraph 7(f) below. The amendments shall further provide that the municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. (k) Based on Brightline's analysis of the Federal Railroad Administration's ("FRA") Quiet Zone calculator, Brightline believes that, in view of the crossing improvements identified in Exhibits C-1 and C-2. Martin will qualify with the FRA as a Quiet Zone so long as Martin, in its entirety, applies for a Quiet Zone designation. Based on Brightline's analysis of the FRA Quiet Zone calculator, Brightline further believes that, in view of the crossing improvements to be made pursuant to Brightline's separate agreement with the Palm Beach County Transportation Planning Agency, the area within Palm Beach County north of West Palm Beach will also qualify with the FRA as a Quiet Zone so long as that area, in its entirety, applies for a Quiet Zone designation. Brightline agrees to support the applications for Quiet Zone designations by Martin, any municipality within Martin, Palm Beach County, and/or any municipality within Palm Beach County north of West Palm Beach that qualify under FRA's Quiet Zone calculator for a Quiet Zone designation. 3. Indian River Roadway Crossing Designs and Maintenance. (a) The Parties agree that there are 32 grade crossings within Indian River where the FECR ROW intersects with an existing roadway, as listed in Exhibit B (the "Indian River Crossings"). (b) The Parties further agree that Brightline is proposing modifications to 32 of the Indian River Crossings as part of the Brightline Project (the "Indian River Crossings to be Modified"). These modifications shall be paid for by Brightline. (c) For the Indian River Crossings to be Modified, Brightline shall, at its own expense, install the safety and other improvements reflected in the designs and related documentation attached as Exhibit D-1 and D-2; provided that Brightline's payment for ROW sidewalk installation is limited to the sidewalks specified in Exhibit D-1. Those improvements include, inter alfa: (i) the addition of exit gates at the crossings located as specified in Exhibit D- 1; (ii) the addition of VPD at the crossings located as specified in Exhibit D-1; and (iii) the addition of sidewalks at the crossings located as specified in Exhibit D-1. Indian River accepts the improvements reflected in Exhibit D-1 and D-2. Should Indian River desire the installation of additional safety or other improvements not reflected in Exhibit D-1 and D-2, those additional improvements shall be subject to the reasonable approval of FECR and Brightline. Indian River shall be solely responsible for the cost of design and construction of such additional improvements, and the parties shall coordinate in good faith on the design and construction of such improvements, so as not to delay the design or construction of the Brightline Project. Indian River shall pay its share of such costs to Brightline within sixty (60) days after Brightline provides Indian River proof of payment to contractors. In the event that Indian River or Brightline elects to seek federal, state, or other grant money to defray the cost of any improvement under this paragraph, the other party -5- shall coordinate in good faith with such efforts. Likewise, if Indian River and/or Brightline is successful in obtaining grant money for any improvement the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. For example, if Indian River were to obtain a grant in the amount of $100,000 for the installation of improvements the cost of which is to be shared on an equal basis, Indian River's and Brightline's respective payment obligations for those improvements would be reduced by $50,000 each. (d) Of the Indian River Crossings to be modified, 21 involve roadways within Indian River's permitting jurisdiction. These 21 crossings are listed in Exhibit B. For those 21 crossings and those crossings located in the City of Sebastian and at Hawk's Nest Road, Indian River has requested that Brightline install certain pavement markings, signage and other improvements outside the FECR ROW as specified in Exhibit D -I at Brightline's expense, and Brightline agrees to do so. Indian River agrees to maintain the pavement markings, signage and other improvements outside the FECR ROW at its own expense. (e) The parties acknowledge and agree that the additional improvements being made pursuant to this paragraph 3 are being made as an accommodation in furtherance of settlement and shall not be deemed an admission that the improvements are necessary or advisable at any particular location. Nor shall they be deemed precedent that similar improvements are necessary or advisable at any other location. (f) Prior to any construction within Indian River's right-of-way, Brightline shall apply for and obtain an Indian River right-of-way permit. Indian River agrees that Brightline may use a single application for all such construction, a copy of which is attached hereto as Exhibit E-2. Such single application shall include the required information for each of the 21 roadway crossings within Indian River's permitting jurisdiction. Indian River further agrees that, upon submission of the completed application, the right-of-way permit will be issued. If Indian River fails to issue the right-of-way permit as required herein, Brightline shall have no obligation under this Agreement to install any improvement, pavement marking, or signage outside the FECR ROW. Indian River agrees to waive the security requirement for such permit. Such waiver is predicated on Brightline's agreement to return Indian River's right-of-way in at least the same condition as before the commencement of such installation, and Brightline's failure to do so shall constitute a breach of this Agreement. (g) Indian River agrees to approve Brightline's maintenance of traffic plans for the foregoing crossing work, provided such plans are in compliance with federal, state, and local maintenance of traffic requirements. (h) Indian River shall execute amendments to the Existing Indian River Crossing Agreements, in the form attached as Exhibit F. The amendments shall not alter Indian River'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, Indian River and Brightline shall share responsibility for paying Indian River's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Indian River shall pay up to $235,500 of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Indian River does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, Brightline shall have no responsibility for paying any portion of such costs for the year in question. For example, if Indian River were to receive a total of $200,000 in invoices from FECR in a particular calendar year, Indian River would be obligated to pay those invoices in full; but if Indian River were to receive a total of $300,000 in invoices from FECR in a particular calendar year, Indian River would only be obligated to pay $235,500, and upon such payment, Brightline would be obligated to pay the balance due — $64,500. The amendments shall also provide that, for each of the first three years after the 14 -year period concludes, Indian River and Brightline shall share responsibility for paying Indian River's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Indian River shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and Brightline shall pay the balance of such costs; provided, however, that if Indian River 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. Indian River°s agreement to pay these averaged annual invoiced costs shall not be deemed an admission that Indian River agrees that previous FECR invoices were accurate or due and payable. If Indian River reasonably disputes an FECR invoice, Brightline agrees Indian River is not in breach of this Agreement. The amendments shall further provide that Indian River shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and that: (i) Indian River shall not indemnify, defend, or hold harmless Brightline for any reason whatsoever in connection with the Existing Indian River Crossing Agreements, as amended, except as otherwise provided in this Agreement; (ii) Indian River shall not add Brightline onto its insurance for any reason whatsoever in connection with the Existing Indian River Crossing Agreements, as amended; and (iii) Indian River shall not consent to waive its sovereign immunity for any action that involves Brightline. Indian River acknowledges that sovereign immunity does not apply for alleged or actual breaches of express, written agreements and amendments thereto entered into by Indian River that are duly authorized by its Board of County Commissioners, including this Agreement and the Crossing Agreements. (i) The municipalities within Indian River that currently have independent roadway crossing agreements with FECR shall be afforded the opportunity to execute amendments to those agreements in the form attached as Exhibit G. The amendments shall not alter the municipality's rights or obligations as to FECR, except that during the 14 -year period, the municipality and Brightline shall share responsibility for paying the municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: the municipality 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 municipality 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 municipality'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) -7- adding to that average the amount invoiced by FECR for signal inspection fees during the year 2017. Indian River shall not be deemed in breach of this Agreement due to any action, inaction, or omission by a municipality. The municipality shall also be required, as a condition of obtaining the benefit of such amendments, to execute a separate agreement with Brightline in the form attached as Exhibit H, in which the municipality shall make the commitments reflected in paragraph 11 below. The amendments shall further provide that the municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. 0) Based on Brightline's analysis of the FRA's Quiet Zone calculator, Brightline believes that, in view of the crossing improvements identified in Exhibits D-1 and D-2, Indian River will qualify with the FRA as a Quiet Zone so long as Indian River , in its entirety, applies for a Quiet Zone designation. Brightline agrees to support the applications for Quiet Zone designations by Indian River and/or any municipality within Indian River that qualify under FRA's Quiet Zone calculator for a Quiet Zone designation. 4. Martin Aerial Pedestrian Bridize. (a) Subject to the concurrence of FECR, Brightline agrees to Martin's construction of an aerial pedestrian bridge over the FECR ROW at a location in Stuart, Florida, mutually agreeable to Martin and Brightline. (b) Martin agrees to execute FECR's standard form Aerial Easement Agreement as attached hereto as Exhibit I, pursuant to which Martin will pay FECR a onetime aerial easement fee in an amount not to exceed $47,600. The grant of the aerial easement shall be subject to compliance with FECR and Brightline engineering requirements and approvals. Martin agrees that the indemnity and insurance obligations under FECR's standard form Aerial Easement Agreement shall be modified to extend to both FECR and Brightline. (c) Construction. Martin shall be responsible for the actual construction of the aerial pedestrian bridge and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (d) Construction Costs. Martin and Brightline shall share responsibility for the cost of constructing the aerial pedestrian bridge, on an equal basis. Martin and Brightline shall each endeavor to obtain federal, state, and/or other grant money for the construction of the bridge, and if either or both is successful, their payment obligations shall be reduced on an equal basis. For example, if Martin were to obtain a grant in the amount of $500,000, Martin's and Brightline's respective payment obligations would be reduced by $250,000 each. Brightline shall pay its share of such construction costs to Martin within sixty (60) days after Martin provides Brightline proof of payment to contractors. (e) Maintenance. Martin shall be solely responsible for the actual maintenance of the aerial pedestrian bridge and the cost of maintenance and replacement of the aerial pedestrian bridge, as needed. -8- 5. Martin Fencing. (a) In accordance with FRA requirements and the Final Environmental Impact Statement for the Brightline Project ("FEIS"), Brightline shall perform a Hazard Analysis within the timeframe provided by 49 C.F.R. § 270. That Hazard Analysis shall include an evaluation designed to determine the locations within Martin where fencing of the FECR ROW is required or recommended for safety. Other than Brightline, none of the parties to this Agreement shall have any role in performing the Hazard Analysis. Brightline shall not be obligated to provide Martin a copy of the Hazard Analysis in view of 49 C.F.R. § 270 which provides that the Analysis is confidential and exempt from disclosure. Brightline shall instead provide the other parties with a list of the locations within Martin where fencing of the FECR ROW was determined to be required or recommended for safety. Brightline shall install and maintain fencing in such locations, at its own expense. Martin shall have no responsibility, including but not limited to financial or liability, pertaining to the installation or maintenance such fencing. (b) Subject to the concurrence of FECR, Brightline agrees to Martin's installation of additional fencing within the FECR ROW, at the locations specified in Exhibit J. For such additional fencing, Martin agrees to execute FECR's standard form Fencing Lease Agreement attached hereto as Exhibit L, pursuant to which Martin will pay FECR an annual lease fee in an amount not to exceed 75 cents per square foot of leased area. The grant of the lease shall be subject to compliance with FECR and Brightline engineering requirements and approvals which shall not be unreasonably denied. Martin agrees that the indemnity and insurance obligations under FECR's standard form Fencing Lease Agreement shall be modified to extend to both FECR and Brightline. Brightline shall be responsible for paying the initial cost of the additional fencing and the initial cost of installing such fencing, up to $1 million ($1,000,000). Martin shall be responsible for the balance of such costs, if any, as well as the cost of maintaining and replacing the additional fencing, as needed. Martin shall be responsible for the actual installation and ongoing maintenance of the additional fencing, and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (c) In the event that Martin or Brightline elects to seek federal, state, or other grant money to defray the cost of any fencing, installation, or maintenance under this paragraph 5, the other party shall cooperate in such efforts. (d) The fencing to be installed shall be Florida Department of Transportation "Type B" fencing. 6. Indian River Fencing. (a) In accordance with FRA requirements and the FEIS, Brightline shall perform a Hazard Analysis within the timeframe provided by 49 C.F.R. § 270. That Hazard Analysis shall include an evaluation designed to determine the locations within Indian River where fencing of the FECR ROW is required or recommended for safety. Other than Brightline, none of the parties to this Agreement shall have any role in performing the Hazard Analysis. Brightline shall not be obligated to provide Indian River a copy of the Hazard Analysis in view of 49 C.F.R. § 270 which provides that the Analysis is confidential and exempt from disclosure. Brightline IRR shall instead provide the other parties with a list of the locations within Indian River where fencing of the FECR ROW was determined to be required or recommended for safety. Brightline shall install and maintain fencing in such locations, at its own expense. Indian.River shall have no responsibility, including but not limited to financial or liability, pertaining to the installation or maintenance of such fencing. (b) Subject to the concurrence of FECR, Brightline agrees to Indian River's. installation of additional fencing within the FECR ROW, at the locations specified in Exhibit K. For such additional fencing, Indian River agrees to execute FECR's standard form Fencing Lease Agreement attached hereto as Exhibit L, pursuant to which Indian River will pay FECR an annual lease fee in an amount not to exceed 75 cents per square foot of leased area. The grant of the lease shall be subject to compliance with FECR and Brightline engineering requirements and approvals which shall not be unreasonably denied. Indian River agrees that the indemnity and insurance obligations under FECR's standard form Fencing Lease Agreement shall be modified to extend to both FECR and Brightline. Brightline shall be responsible for paying the initial cost of the additional fencing and the initial cost of installing such fencing, up to $1 million ($1,000,000). Indian River shall be responsible for the balance of such costs, if any, as well as the cost of maintaining and replacing the additional fencing, as needed. Indian River shall be responsible for the actual installation and ongoing maintenance of the additional fencing, and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (c) In the event that Indian River or Brightline elects to seek federal, state, or other grant money to defray the cost of any fencing, installation, or maintenance under this paragraph 6, the other party shall cooperate in such efforts. (d) The fencing to be installed shall be Florida Department of Transportation "Type B" fencing. The fencing shall be galvanized with black or dark green coating. 7. St. Lucie River Bridge Modifications. (a) Subject to the concurrence of FECR and the United States Coast Guard ("USCG"), and if the conditions expressed in this paragraph are met, Brightline agrees to incur the expense of raising the low chord elevation of one (1) roughly fifty-five (55) foot span of the St. Lucie River Bridge by between twelve (12) to twenty-four (24) inches above mean high water level relative to the current low chord height as part of Brightline's forthcoming repairs to the St. Lucie River Bridge. Within ninety (90) days of the Effective Date, Brightline shall commission engineering plans for such modifications in order to determine how high of a raise can reasonably and realistically be achieved (the "Proposed Raise"). Within ninety (90) days thereafter, Brightline shall commission an analysis designed to determine the percentage of boat traffic that the Proposed Raise will allow to pass under the St. Lucie River Bridge while it is in a closed position. The analysis will be similar to that previously commissioned by the Town of Jupiter with respect to the anticipated raise of the low chord elevation of certain spans of the Loxahatchee River Bridge. Brightline shall be solely responsible for the cost of the referenced engineering plans and the cost of the analysis of the impact of the Proposed Raise on boat traffic. If the analysis determines that the Proposed Raise will permit less than 35% of boat traffic to pass under the St. Lucie River Bridge while it is in a closed position, Brightline shall not be obligated to -10- proceed with the Proposed Raise. If the analysis determines that the Proposed Raise will permit at least 35% of boat traffic to pass under the St. Lucie River Bridge while it is in a closed position, Brightline shall proceed with the Proposed Raise. The parties agree that Martin is not responsible for costs of any modifications to the St. Lucie River Bridge as part of this Agreement or as part of Brightline's forthcoming repairs to St. Lucie River Bridge. (b) Subject to the concurrence of FECR and USCG, Brightline agrees to a USCG operating rule that requires a bridge monitor to be located at or near the St. Lucie River Bridge. The bridge monitor requirement may be satisfied through use of the Florida Department of Transportation bridge monitor at the nearby Roosevelt Bridge. The parties agree that Martin is not responsible for the costs of the bridge monitor; FECR and/or Brightline shall bear those costs. (c) Subject to FECR's and USCG's concurrence, Brightline agrees to a USCG operating rule that requires the St. Lucie River Bridge be open to marine traffic at least fifteen (15) consecutive minutes at a set time each hour between the hours of 6:00 a.m. and 10:00 p.m., and open to rail and marine traffic, as applicable, on an as needed basis during the remaining times, with the openings and closures to be equally divided between the rail and the marine traffic during each of the following four (4) hour periods: 6:00 a.m. to 10:00 a.m., 10:00 a.m. to 2:00 p.m., 2:00 p.m. to 6:00 p.m., and 6:00 p.m. to 10:00 p.m. (d) The parties agree not to seek any additional operating rules for the St. Lucie River Bridge for a period of five (5) years from the date Brightline commences passenger revenue operations between West Palm Beach and Orlando. Notwithstanding the foregoing, if the USCG does not agree to an operating rule consistent with paragraph 7(c) within twelve (12) months of the Effective Date, Martin or CARE may seek operating rules consistent with this paragraph from State and Federal government authorities immediately. (e) Subject to FECR's and USCG's concurrence, Brightline agrees to a USCG operating rule that requires the Loxahatchee River Bridge be open to rail and marine traffic, as applicable, on an as needed basis, with openings at least once per hour and each closure lasting no more than thirty (30) minutes. Brightline agrees to develop a set schedule for closures of the Loxahatchee River Bridge and provide public access to that schedule and any updates thereto in an internet-accessible format. Brightline further agrees to make best efforts to provide a consistent time of opening each hour for the Loxahatchee River Bridge, similar but not identical to the St. Lucie River Bridge. (f) The parties agree not to seek any additional operating rules for the Loxahatchee River Bridge for a period of five (5) years from the date Brightline commences passenger revenue operations between West Palm Beach and Orlando. Notwithstanding the foregoing, if the USCG does not agree to an operating rule consistent with paragraph 7(c) within twelve (12) months of the Effective Date, CARE may seek operating rules consistent with this paragraph from State and Federal government authorities immediately. S. Briphtline Station in the Treasure Coast Within 5 years of commencement of Brightline's passenger revenue train service from West Palm Beach to Orlando, Brightline agrees to build at least one train station ("Station") in the -11- Treasure Coast, subject to receipt of all applicable governmental permits and approvals with respect thereto. The Station will be located either in Martin, St. Lucie, or Indian River County. Following completion of the Station, at least two northbound and two southbound Brightline trains will stop at the Station each day. Construction of the Station is subject to the payment of 50% of the Station construction cost by the County and/or municipality in which the Station is located, if such payment is requested by Brightline. In the event the applicable County and/or municipality or Brightline elects to seek federal, state, or other grant money to defray the cost of construction of such Station(s) under this paragraph, the other party shall coordinate in good faith with such efforts. Likewise, if a party is successful in obtaining grant money for any construction, the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. The parties agree that such construction costs shall be reduced proportionally upon the granting of federal or state funding for such construction. 9. Safety and Accident Disclosure Practices The parties acknowledge that collisions between Brightline trains and cars or pedestrians in Martin and Indian River may occur despite efforts to prevent such accidents. Brightline agrees to promptly notify first responders in the impacted county or municipality of any such accidents. Brightline shall also provide the impacted county or municipality with a copy of any police and/or medical examiner's report(s) relating to such accidents, upon receipt thereof. Brightline further agrees to meet with Martin and Indian River first responders and engineering employees no less than annually to review all accidents in the Counties from the preceding year and jointly evaluate if additional actions are necessary to prevent similar accidents. 10. Dismissal of PABs Litigation. On or before November 26, 2018, Martin, Indian River, the Indian River ESD, and CARE shall file in the United States District Court for the District of Columbia Case No. 1:18-cv- 00333-CRC a Joint Stipulation of Dismissal With Prejudice in the form attached as Exhibit M, with each party to bear its own attorneys' fees and costs. 11. Commitments of Martin, Indian River, the Indian River ESD, and CARE Regarding the Brightline Project. (a) Martin, Indian River, the Indian River ESD, and CARE each hereby agrees that it will not oppose or challenge, or encourage others to oppose or challenge, any pending or future federal, state, or local approval, permit, or authorization relating to the Brightline Project, or the financing of the Brightline Project, or seek any further state, federal or local environmental or other governmental review with respect to the improvements that Brightline is committing to make in this Agreement, during the period of construction and the first five (5) years of Brightline passenger revenue operations between West Palm Beach and Orlando, including but not be limited to any approval, permit, or authorization issued by USDOT, the FRA, the U.S. Army Corps of Engineers, the USCG, the Florida Department of Transportation, the St. Johns River Water Management District, and the South Florida Water Management District, as well as the FEIS issued for the Brightline Project and any other NEPA, NHPA, or related project review/consultation documents. -12- N (b) Martin hereby acknowledges and agrees that it has evaluated the work currently proposed to be done within Martin as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Martin permitting requirements, except for the Floodplain Approval that is required for any work within identified Special Flood Hazard Areas in Martin, including bridges. Brightline believes the Floodplain Approval requirement is subject to federal preemption and is therefore inapplicable, but it has agreed to treat the requirement as applicable solely for purposes of this Agreement. Brightline shall submit a No -Rise Certification, signed and sealed by a professional engineer licensed in the state of Florida, prior to any work commencing on a railroad bridge, not including the St. Lucie River Bridge. Brightline agrees to provide Martin any and all hydraulic analysis or models associated with the No -Rise Certification. Martin agrees to issue a Floodplain Approval for the bridge work within ten (10) business days after receipt of each No -Rise Certification(s). (c) Indian River also acknowledges and agrees that it has evaluated the work currently proposed to be done within Indian River as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Indian River permitting requirements. (d) Martin and Indian River shall not seek to impose any county or local approval or permitting requirements with respect to the work currently proposed to be done within the FECR ROW. (e) During the period of construction and the first three years of Brightline passenger revenue operations between West Palm Beach and Orlando, Martin, Indian River, the Indian River ESD, and CARE will not pass any resolution or adopt any other official act that publicly supports or actively encourages third parties to support any federal or state legislation, or new County laws or regulations that would directly and adversely impact the Brightline Project. (f) Martin, Indian River, the Indian River ESD, and CARE will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal, state, county, or local laws or regulations that would directly and adversely impact Brightline's ability to comply with any term of this Agreement or vary any commitment made under this Agreement. 12. Notice and Opportunity to Cure. In the event that a Party alleges another Party to be in material breach of this Agreement, the Party alleging the material breach shall provide the other Party with written notice identifying with specificity the date and location of the perceived material breach and the provision of the Agreement breached ("Cure Notice"). The Party receiving such Cure Notice shall have thirty (30) days from the time it receives the Cure Notice (the "Cure Period") to either (a) cure the alleged material breach and respond in writing, describing what remedial action has been taken, or (b) respond in writing, explaining why no breach has occurred. During the Cure Period, and afterward, the Parties shall cooperate in good faith to resolve the alleged material breach. If the Party alleged to have materially breached this Agreement cures or otherwise satisfactorily responds to the alleged material breach within the Cure Period, the Party alleging the material breach shall not file a lawsuit or take other action predicated upon the alleged material breach. If the Party alleged to have materially breached the Agreement does not cure or satisfactorily respond -13- to the alleged material breach within the Cure Period, the other Party shall be entitled to file suit to cure the alleged material breach and seek to terminate this Agreement and/or the contemplated amendments to the Existing Martin Crossing Agreements and the Existing Indian River Crossing Agreements. 13. Releases. (a) Martin, Indian River, the Indian River FSD, and CARE each release, acquit, and forever discharge Brightline, and its present and former parent entities, subsidiaries, affiliates, successors, assigns, directors, officers, employees, agents, representatives, and insurers, from all claims, causes of action, demands, debts, liabilities, and obligations, of every name and nature, known or unknown, asserted or unasserted, accrued or unaccrued, both at law or in equity, from the beginning of time to the Effective Date. (b) Brightline, on behalf of itself and its present and former parent entities, subsidiaries, affiliates, successors, and assigns, hereby releases, acquits, and forever discharges Martin, Indian River, the Indian River ESD, and CARE, and their present and former elected officials, employees, agents, representatives, and insurers, from all claims, causes of action, demands, debts, liabilities, and obligations, of every name and nature, known or unknown, asserted or unasserted, accrued or unaccrued, both at law or in equity, from the beginning of time to the Effective Date. (c) The foregoing releases are intended to be given the broadest possible interpretation, but shall not eliminate any obligations arising under this Settlement Agreement. 14. Binding_ Effect. This Settlement Agreement is final and binding on the Parties, including their heirs, successors, and future assigns. 15. No Assignment. Each Party acknowledges and agrees that it has not assigned, transferred, conveyed, or encumbered any claim, debt, liability, or obligations released herein. 16. Compromise. This Settlement Agreement is made in compromise of a dispute. Nothing herein shall be construed or deemed an admission of liability or wrongdoing. 17. Entire Agreement. This Settlement Agreement contains the entire agreement of the Parties, and supersedes any and all prior negotiations, representations, understandings, and agreements, whether oral or in writing, with respect to the subject matter hereof. 18. Severability. In the event that any provision of this Agreement shall at any time contravene, in whole or part, any applicable law, ruling or regulation, then such provision shall remain in effect only to the extent permitted, and the remaining provisions hereof shall remain in full force and effect. 19. Modification. This Settlement Agreement may not be amended, modified, released, discharged, or otherwise terminated, in whole or part, except by an instrument in writing signed by authorized representatives of the parties hereto. 20. Construction. This Settlement Agreement was drafted by counsel for the Parties and shall not be construed more strictly against any Party on the ground that it was the drafter. -14- 21. Governing Law, Attorneys' Fees. This Settlement Agreement shall be construed and the legal relations between the Parties shall be determined in accordance with Florida law. In any litigation or other legal proceeding arising out of or related to this Settlement Agreement, both parties agree to waive claims for attorneys' fees and costs. 22. Waiver. Each Party acknowledges and agrees that it has had the opportunity to consult with counsel of its choice in deciding whether to enter this Settlement Agreement. Each Party further acknowledges that it was not fraudulently induced, coerced, or intimidated to sign this Settlement Agreement, and agrees not to seek to upset this Settlement Agreement by reason of any fact or matter, including but not limited to the discovery of any claim or defense not presently known to it. Each Party affirmatively waives and releases any claim that it has been misled or fraudulently induced to enter this Settlement Agreement. 23. Authority. Each Party represents and warrants that it is authorized to enter this Settlement Agreement, and that the individual executing this Agreement on its behalf has the legal authority to do so. The MARTINBCC's resolution, the INDIANRIVERBCC's and Indian River ESD Board's resolution, and the CARE Board's resolution authorizing the execution of this Settlement Agreement are attached hereto as Exhibits N through P, respectively. The Brightline resolution authorizing the execution of this Settlement Agreement is attached hereto as Exhibit Q. 24. Counterparts. This Agreement may be executed in counterparts, by email or facsimile, each of which shall be deemed an original but all of which shall constitute one instrument. 25. Venue. Venue for disputes arising out of or relating to this Settlement Agreement shall be in the U.S. District Court for the Southern District of Florida, Fort Pierce Division, or state court in St. Lucie County, Florida. 26. Conflicts. If there is a conflict between the terms of this Agreement and the terms within any of the Exhibits attached hereto, the terms of this Agreement shall control and prevail. -15- IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have set their hands and seals to this instrument as of the Effective Date above. ACCEPTANCE BY MARTIN COUNTY MARTIN COUNTY, ATTESTED: a Political Subdivision of the State of Florida By: Chairman, Board of County Commissioners Clerk APPROVED AS TO FORM AND CORRECTNESS: Sarah Woods County Attorney ACCEPTANCE BY INDIAN RIVER COUNTY INDIAN RIVER COUNTY, ATTESTED: a Political Subdivision of the State of Florida Lo By: Chairman, Board of County Commissioners Clerk -16- APPROVED AS TO FORM AND CORRECTNESS: Dylan Reingold County Attorney ACCEPTANCE BY INDIAN RIVER COUNTY EMERGENCY SERVICES DISTRICT INDIAN RIVER COUNTY ATTESTED: EMERGENCY SERVICES DISTRICT, a dependent special district of Indian River County LE Chairman, Board of County Commissioners Clerk APPROVED AS TO FORM AND CORRECTNESS: LE Dylan Reingold County Attorney ACCEPTANCE BY CITIZENS AGAINST RAIL EXPANSION IN FLORIDA CITIZENS AGAINST RAIL EXPANSION ATTESTED: IN FLORIDA, APPROVED AS TO FORM AND CORRECTNESS: Brent Hanlon Chairman -17- ACCEPTANCE BY BRIGHTLINE TRAINS LLC BRIGHTLINE TRAINS LLC, ATTESTED: a Delaware limited liability company Patrick Goddard President -18- Myles L. Tobin, Esq. General Counsel Settlement Agreement Exhibits —11/20/18 Ex. A List of Existing Martin Crossing Agreements Ex. B List of Existing Indian River Crossing Agreements Ex. C-1 Schedule of Martin Additional Improvements Ex. C-2 Martin Crossing Plans Ex. D-1 Schedule of Indian River Additional Improvements Ex. D-2 Indian River Crossing Plans Ex. E -I Martin ROW Permit Application Ex. E-2 Indian River ROW Permit Application Ex. F County Crossing Amendment Ex. G Municipality Crossing Amendment Ex. H Municipality Agreement Ex. I FECR Aerial Easement Agreement Ex. J Martin Fencing Locations Ex. K Indian River Fencing Locations Ex. L FECR Fencing Lease Ex. M A. Stip. Of Dismissal Ex. N Martin BCC Resolution Ex. O Indian River BCC & ESD Resolution Ex. P CARE Resolution Ex. Q BL Resolution Indian . Roadway City Crossing Name Sebastian Roseland Dr (SR 514) - 212+2991' Sebastian CR 512 Westbound, Sebastian Blvd W - 214+4375' Sebastian Fellsmere Rd (SR 512 EB), Sebastian Blvd E - 215+315' Sebastian Old Dixie Hwy - 216+20' Sebastian 99th St / Vickers Rd - 217+3226' Winter Beach 85th St, Wabasso Rd, 510 - 219+3059' Winter Beach 77th St, Hobart Rd - 220+3689' Winter Beach 69th St - North Winter Beach - 2121+4212' Winter Beach 65th St, South Winter Beach Rd - 222+1704' Gifford 53rd St - 223+4730' Gifford 49th St - 224+2199' Gifford 45th St - 224+4945' Gifford 43rd St - 225+632' Gifford 41st St (CR 630) - 225+2,418' Vero Beach 16th St, 17th St - 228+118' Oslo 12th St - 228+3486' Oslo Glendale Rd - 229+983' Oslo 4th St, Indian River Blvd - 229+3982' Oslo l st St - 230+767' Oslo Oslo Rd (SR 606), 9th Ln SW - 231+165 P Oslo Highland Dr SE, 20th Place SW - 232+4523' City/Location Crossing Name Sebastian Main St Sebastian Schumann Dr Sebastian Barber St Vero Beach 32nd St, Aviation Blvd Vero Beach 26th St Vero Beach 14th Ave Vero Beach 23rd St Vero Beach 21 st St, SR 60 East Vero Beach 20th St, SR 60 West Vero Beach 19th Pl Gifford Hawks Nest Rd, Golf Club Entrance Crossing Agreement Holder FEC CITY OF SEBASTIAN CITY OF SEBASTIAN CITY OF VERO BEACH CITY OF VERO BEACH CITY OF VERO BEACH CITY OF VERO BEACH CITY OF VERO BEACH FDOT FDOT BRIGI INE PHASE If ZONE46 RMENTS p - .� btryhdire l.oOtlDn 0.aalPtbn RansaHu INDIAN RIVER COUNTY R—b.dl Pd Install MR 6ata and Va"%aaMe Dla[oUen Within ROW MP 212S7 5 -foot Mad shoulders thmugh croming ..._ Wkhin ROW Main St —�— MP 210.V P—Id.d diad RdaWain .—on both lid of ROW Whhin ROW (71512 West/Sebastian Bhid MO RVIIwfln9 and pavemem markups m arcammotlatn S ft hlbv lana Wkhin ROW MP214.70 CR 512 EasMund/ FIRsm ere Rd Accommodxe 5-k bike bne tam lnains on ER approach WAMn ROW Mp215116 Old Diate216HwF 21611 MP 0 ImlxweveMcalcune ConttngenconlRCROWpwmn YhtlrkaaOr MP 21659 Pdo--sl ...WwSan to currant standards and Xhumaon Dr MA", sxrbn WMIn POW at 65M 9521a 5l0b Mp MP MnpowvatkN bgrMlbn C,";"ent un IRC POW permh Hobart Rd MP 220.70 prove va IkW UarNbn contra gent on lPC ROW permn 691h St/ N Wlatx gain R6 MP 211.60 Imprwav kalbadsWn C—InRant on IRC ROW permit 65 th 5t MP 222.17 a wevak.111—k- Comi of on IRC ROW IIavAI Nat Crossing MP 21lden roalw9Y to cwreM Wxsdxds Conib,,,genton IACROW permk 223,12 G.IdbD ebya5 Co2dtonlRCROWpamk 5345t Rawahact• o5hadwiden to a5i4 standxds tdxWIo Within ROW MP 22390 Cxrect c to aaommodat bike lana _-- _- Wkhin ROW Partner with County on NhefsaUon ro Within ROW 49th St MP224AZ Roadwycrossin W,nmud do— aanonddaa.UU.9 blM lsna OlmwhnoMYp Provide pedestrIal fa AKa on both itch --__ - — Wkbin ROW Whhln ROW 45th St MP22494 Partna wiM Cowlly on b[asMloa pro -- 14corntNtt approach to current staMards -WRhIn ROW —_._. WMIn ROW tlstR MP225.46 Partar with County on folen ion ro --- WIN. ROW -- 4th 5t MP 229.74 1-11 E ft Gat. and VMkle Pr.—Daacion WRhIn ROW taws, _ _ _ —11 Eak Gates and Vehicle Presence Ddectbn and Emend crossi pends WIMIn ROW MP 230.24 Widen ens 6 adda Dain with.. NOW 00. Rd(SR 606) Ira weveMcal transkion Conti on IRC ROW MP23131 Address ADA dl.off Continp,t on IRC ROW HIghblsdsM MP 232.26 Padatrbd [tocsin, on both alda of Hlghbnda Or. Within ROW Varian SacurRY Face 1-11.0on; FDOT TYR B, 6 Upto SIMMCap Varba InsbR sierlageantlpwemeM Saran, C..kWM on IRC ROW Iwmk INDIAN RIVER COUNTY RIGHT-OF-WAY REVIEW/PERMIT APPLICATION DATE R.O.W. PERMIT NO. APPLICANT NAME PHONE ADDRESS CONTRACTOR NAME EMERGENCY PHONE NO. (REQUIRED) ADDRESS OFFICE PHONE NO. LOCATION OF WORK STREET ADDRESS LOT BLOCK SUBDIVISION UNIT DESCRIPTION OF WORK TYPE OF REVIEW/PERMIT: (CIRCLE ONE) RESIDENTIAL COMMERCIAL LAND DEVELOPMENT SITE PLAN UTILITY RIGHT-OF-WAY JURISDICTION: (CIRCLE ONE) PUBLIC PRIVATE TYPE C STORMWATER REVIEW: (CIRCLE ONE) YES NO CONSTRUCTION TYPE: DRIVEWAY" CABLE TV UNDERGROUND STREET PAVING ELECTRICITY OVERHEAD SIDEWALKS/CURBS TELEPHONE STORM DRAINAGE RIGHT-OF-WAY WATER SYSTEMS CLEARING SANITARY SEWER OTHER NOTE: 1. Detailed drawings shall be submitted with each application. 2. This permit is issued subject to all conditions on reverse side of this application. 3. A signature by the contractor shall be construed as making the contractor personally liable for all permit conditions unless contractor attached written proof of authorization to act on behalf of the applicant. 4. All work is subject to final inspection by Engineering Division. Call 770-5455, "AIRS" (automated inspection request system) to schedule inspections for any permit issued after January 1, 2003. APPLICANT I CONTRACTOR SIGNATURE NAME (PLEASE PRINT) OFFICE USE ONLY NOTES: PERMIT FEE $ ISSUING OFFICER DATEISSUED EXPIRATION DATE Rev. 2/18/04 C:\Documents and Settings\webmaster\DesktoplROW APPLICATION FORM.doc RIGHT-OF-WAY CONDITIONS Applicant shall not begin construction of any kind in the County right-of-way prior to application and issuance of a valid permit by the Department of Public works. 2. Any areas disturbed in the County right-of-way must be restored by applicant to a condition equal to or better than existing just prior to construction, including but not limited to compaction, grading, paving, seeding mulching and sodding, etc., as the case my be. The quality of construction, materials, and workmanship shall be in accordance with County standards. *Applicant shall notify the Engineering Division at least 48 hours prior to the placement of concrete, paving of asphalt, installation of culverts, or backfilling of trenches, so that the County may inspect installations as necessary. Applicant shall further notify the County in writing of its request for final inspection and approval at the completion of the permitted activity. 4. This permit shall EXPIRE WITH THE ASSOCIATED LAND DEVELOPMENT OR SITE PLAN PERMIT unless otherwise stated in writing on the face of this permit by an authorized representative of the Engineering Division. The applicant agrees to use all reasonable care under the given circumstances to assure that members of the traveling public are not unreasonably inconvenienced nor endangered by the activities conducted hereunder, including the use of reflectorized barriers, warning signals, flagmen or other prudent measures as described in the Manual on Uniform Traffic Control Devices, (MUTCD), 2000 Edition, published by US Department of Transportation, Federal Highway Administration. 6. The validity of this permit is contingent upon applicant obtaining necessary permits from any other agencies having jurisdiction. Issuance of this permit does not relieve applicant of liability for trespass to private property. 7. This permit shall be considered a license only, for the limited purpose of installation, placement and maintenance of the improvements specified on the face hereof, and does not convey any other right, title, or interest of the Count in the subject right-of-way property. 8. 9. Applicant is cautioned that electrical, water and sewer, or other installations or utilities may be located within the construction area, and applicant shall use diligent efforts to first detect and locate all such installations, and shall coordinate construction with all lawful users of said fight -of -way. Applicant shall be liable in every manner for all damages proximately resulting from its interference with or interruption of services provided by other lawful right-of-way users. 10. *In cases where a concrete driveway is to extend to a paved road, that portion of the driveway from property line to edge of the road pavement shall be a minimum thickness of four inches for residential, local roads only, all others will be six inches, as specified in Chapter 312.19(2B) of the County Right -of - Way Ordinance. If road is unpaved concrete/asphalt driveway shall not extend beyond the property line. Rev. 2/18/04 C:\Documents and Settings\webmaster\Desktop\ROW APPLICATION FORM.doc INDIAN RIVER COUNTY RIGHT-OF-WAY INFORMATION & FEE SCHEDULE PERMIT/REVIEW TYPE STORMWATER TYPE C SINGLE FAMILY ROW & DRAINAGE REVIEW (PRIVATE) SINGLE FAMILY ROW & DRAINAGE REVIEW/PERMIT (PUBLIC) UTILITY ROW PERMIT LAND DEVELOPMENT ROW PERMIT COMMERCIAL ROW PERMIT ADDITIONAL FEES RE -INSPECTION AFTER 2 SITE VISITS — (CHARGED @ AN HOURLY RATE) FEE $100.00 $ 45.00 $ 75.00 $350.00 $550.00 $300.00 PLAN REVIEW AFTER 3`d RESUBMITTAL — (CHARGED @ AN HOURLY RATE) Fees and Security Requirement Waived as Part of Settlement Rev. 2/18/04 C:\Documents and SettingsMebmaster\Desktop\ROW APPLICATION FORM.doc CROSSING AGREEMENT AMENDMENT BY AND AMONG FLORIDA EAST COAST RAILWAY, LLC, BRIGHTLINE TRAINS LLC, AND COUNTY, PERTAINING TO RAILWAY CROSSINGS COVERED BY EXISTING CROSSING LICENSE AGREEMENTS THIS Crossing Agreement Amendment (hereinafter "Amendment") is made and entered into this day of , 2018, by and among FLORIDA EAST COAST RAILWAY LLC, a Florida Limited Liability Company, with an address of 7411 Fullerton Street, Suite 300, Jacksonville, FL 32256 (hereinafter "FECR") BRIGHTLINE TRAINS LLC, a Delaware Limited Liability Company (authorized to do business in Florida), with an address of 161 NW 6T" ST, STE, 900, Miami, FL 33136 (hereinafter "BRIGHTLINE"), and COUNTY, a Political Subdivision of the State of Florida (hereinafter "COUNTY") (collectively, the "Parties"). RECITALS WHEREAS, FECR owns and operates a rail corridor located within the boundaries of COUNTY; and WHEREAS, COUNTY has various roadways that cross the FECR right-of-way as listed in Exhibit A, as such Crossings are more particularly defined in various license and/or crossing agreements(hereinafter individually and in the aggregate, as the case requires, referred to as "Crossings"); and WHEREAS, FECR has entered into various license and/or crossing agreements with COUNTY that set forth the rights and obligations of the Parties with respect to each of the Crossings, as amended and assigned to date, as listed in Exhibit A (hereinafter "License Agreements"); and WHEREAS, BRIGHTLINE is developing an intercity passenger rail service from Miami to Orlando, to be located within FECR's railway right-of-way (hereinafter "Project"); and WHEREAS, FECR has agreed to allow BRIGHTLINE to utilize its rail corridor for the Project; and WHEREAS, in order to accommodate the Project it is necessary for BRIGHTLINE to install a second track which requires improvement, construction and alterations to existing Crossings; and WHEREAS, pursuant to the License Agreements, COUNTY is responsible for a portion of the costs related to improvements made to each Crossing; and WHEREAS, BRIGHTLINE has agreed to incur all costs related to the Crossing improvements to the extent required for the Project to ensure safety at public crossings and to commence passenger rail service; and WHEREAS, COUNTY finds that the terms of this Amendment will benefit the safety and welfare of the public; and WHEREAS, BRIGHTLINE has entered into a Settlement Agreement with COUNTY and others, dated , 2018 (hereinafter "Settlement Agreement"); - 1 - NOW THEREFORE, for the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1. PURPOSE The purpose of this Amendment is to memorialize the agreement reached relating to the Project with respect to the Crossings and terms related to the construction, maintenance and safety of the Crossings. Section 2. LICENSE AGREEMENTS The Crossings, as improved for the Project, shall continue to be governed by the terms and provisions of the License Agreements, listed on Exhibit A. Section 3. BRIGHTLINE REPRESENTATIONS 3.1 Initial Development Costs. BRIGHTLINE shall fund and be responsible for all necessary and reasonable capital investments to complete the initial installation of crossing improvements at the Crossings to the extent required for compliance with currently applicable laws and requirements for passenger rail service (hereinafter, the "Initial Development Costs"). The Initial Development Costs may include some or all of the following, based on the individual requirements for each Crossing, as more specifically described in the final plans and drawings for each Crossing provided by BRIGHTLINE to COUNTY: the installation, relocation or alteration of new track and/or the existing track; cables; railroad devices; crossing structures; railroad signalization equipment: grade crossing surfaces; roadway, signage and pavement marking; co- habitation of roadway traffic signals impacted by the Project to railroad truss structures; relocation of any permitted COUNTY utilities and, any other element necessary to comply with all applicable laws and regulations. The Initial Development Costs do not include the costs of any other improvements to the Crossings related to the establishment of quiet zones or any other improvements required or desired by COUNTY, except as provided in the Settlement Agreement. Regardless of any provision to the contrary the License Agreements, COUNTY shall have no responsibility for any Initial Development Costs, except as provided in the Settlement Agreement. 3.2 Maintenance of Existing Crossing. If 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, that 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 the COUNTY may bear in accordance with the existing License Agreements. 3.3 Standards. BRIGHTLINE shall construct all track and crossing Project improvements at each Crossing in compliance with the crossing construction plans submitted by BRIGHTLINE to the COUNTY and incorporated in the Settlement Agreement, in Exhibit _ 3.4 Coordination. BRIGHTLINE and COUNTY agree to coordinate and cooperate with each other at all times with regard to notice, permitting, mobilization and construction timing of the Project improvements. Elements of the Project may extend beyond the FECR right- of -way at certain Crossing(s) in order to complete the Project within -2- aforementioned standards and guidelines. Where elements of the crossing upgrades extend beyond the FECR right-of-way at any crossing, BRIGHTLINE shall coordinate any required crossing upgrade work which must be performed outside of the FECR right-of-way with the COUNTY and obtain all necessary permits, subject to the terms of the Settlement Agreement. COUNTY acknowledges that it will grant to BRIGHTLINE the necessary permits for the installation and construction of any aspects of the crossing upgrades outside of the FECR right- of-way, subject to the terms of the Settlement Agreement. BRIGHTLINE will repave or restore the COUNTY's right-of-way if impacted by the crossing upgrade construction at BRIGHTLINE's expense. If there is striping on COUNTY streets which extends beyond the FECR right-of-way then as part of the Project, BRIGHTLINE will re -stripe COUNTY's street along with the portions of the street within FECR's right-of-way at BRIGHTLINE's expense, subject to the terms of the Settlement Agreement. In connection with future maintenance at these Crossings, if comparable restriping is necessary outside of the FECR right-of-way, FECR will perform that restriping, and the costs of such restriping in the COUNTY's right-of-way shall be apportioned to COUNTY, subject to Section 6 below. 3.5 Minimal Disruption. BRIGHTLINE shall perform and complete the Project in a manner that minimizes disruption and inconvenience to COUNTY and the public but COUNTY recognizes that, as with any construction project, there will be unavoidable disruptions and inconvenience to COUNTY and the public. BRIGHTLINE will make every effort to coordinate Crossing closures so as not to adversely impact COUNTY'S scheduled special events. BRIGHTLINE shall make reasonable efforts to only close individual crossings for a period of not more than three (3) consecutive days, provided that the COUNTY acknowledges that some crossings may take longer, ideally no more than five days. BRIGHTLINE will coordinate with the COUNTY so that the crossing improvement work minimizes disruption and inconvenience to the COUNTY and its residents. 3.6 Maintenance of Traffic. BRIGHTLINE shall be responsible for the costs of Maintenance of Traffic signage during the Project. BRIGHTLINE or its contractor shall submit a Maintenance of Traffic plan for each individual Crossing to the COUNTY a minimum of four (4) weeks prior to the commencement of Project work. COUNTY agrees to approve such plan, provided it is in compliance with federal, state, and local maintenance of traffic requirements. 3.7 Quiet Zone. If COUNTY successfully obtains approval to classify the crossings within its boundaries as part of a Quiet Zone, prior to BRIGHTLINE's installation of the various crossing upgrades identified above, BRIGHTLINE agrees to install the quiet zone required improvements to the crossings, at the expense of COUNTY or such other governmental agency that agrees to pay the expenses associated therewith. 3.8 Budget Estimates. To accommodate COUNTY's statutory budget process and fiscal year (October 1 sl _ September 30tt', referred to as "Government Fiscal Year"), FECR agrees to utilize commercially reasonable efforts to provide to COUNTY, no later than April 15t each year, the list of Crossings scheduled for maintenance during the upcoming Government Fiscal Year, along with an estimate of any and all costs or expenses for which COUNTY will be responsible under the License Agreements during such Government Fiscal Year. COUNTY acknowledges that emergency and unanticipated repairs may be necessary at crossings periodically, and FECR may not be able to provide normal advance notice thereof. This provision shall survive any expiration or termination of the License Agreements, as amended. Section 4. FECR REPRESENTATIONS -3- 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 COUNTY of the Initial Development Costs under the License Agreements. 4.3 Maintenance of Existing Crossing During Prosect 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 COUNTY 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, COUNTY may continue to interface solely with FECR in connection with that maintenance and COUNTY required reimbursement in connection therewith. FECR and COUNTY 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 COUNTY 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. COUNTY REPRESENTATIONS 5.1 Permits; Maintenance of Traffic. COUNTY 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 COUNTY acknowledges that FECR may apportion the appropriate share of such costs to COUNTY in accordance with the existing License Agreements. 5.3 Ongoing Maintenance Costs. COUNTY acknowledges that the costs for crossing surface maintenance and future crossing surface and signal upgrade charges shall be reimbursed by COUNTY 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 COUNTY'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 "14 -year period"), COUNTY and BRIGHTLINE shall share responsibility for paying COUNTY's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: COUNTY shall pay up to $ of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and BRIGHTLINE shall pay the balance of such costs; provided, however, that if COUNTY does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, BRIGHTLINE shall have no responsibility for paying any portion of such costs for the year in question. For example, if COUNTY were to receive a total of $ in invoices from FECR in a particular calendar year, COUNTY would be obligated to pay those invoices in full; but if COUNTY were to receive a total of $ in invoices from FECR in a particular calendar year, COUNTY would only be obligated to pay $ and upon such payment, BRIGHTLINE would be obligated to pay the balance due — $ For each of the first three years after the 14 -year period concludes, COUNTY and BRIGHTLINE shall share responsibility for paying COUNTY's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: COUNTY shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and BRIGHTLINE shall pay the balance of such costs; provided, however, that if COUNTY 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. COUNTY shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and: (i) COUNTY shall not indemnify, defend, or hold harmless BRIGHTLINE for any reason whatsoever in connection with the License Agreements, as amended, except as otherwise provided in the Settlement Agreement; (ii) COUNTY shall not add BRIGHTLINE onto its insurance for any reason whatsoever in connection with the License Agreements, as amended; and (iii) COUNTY shall not consent to waive its sovereign immunity for any action that involves BRIGHTLINE. COUNTY acknowledges that sovereign immunity does not apply for alleged or actual breaches of express written agreements and amendments thereto entered by the COUNTY that are duly authorized by its Board of County Commissioners, including the License Agreements, as amended, and the Settlement Agreement; 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 respect to COUNTY 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. -5- 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 COUNTY and/or BRIGHTLINE. Section B. CONFLICTS WITH SETTLEMENT AGREEMENT For avoidance of doubt, as between BRIGHTLINE and COUNTY, in the event of a conflict between the terms 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 COUNTY and execution by all parties. 9.2 Term. 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 of Florida. Any questions or matters arising under the License Agreements as to validity, construction, enforcement, performance, or otherwise, shall be determined in accordance with the laws of the State of Florida. Venue for any action arising out of or in any way related to this Amendment shall be as provide in the License Agreements. Section 11. NOTICE All notices required in the License Agreements, as amended, shall be sent by, hand delivery or overnight commercial courier. Notices shall be addressed as follows.- To ollows: To FECR: Attention: Robert Ledoux, VP and General Counsel Florida East Coast Railway L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, FL 32256 To BRIGHTLINE: Attention: Patrick Goddard, President Brigthline Trains LLC 161 NW 61 St, Ste. 900 Miami, FL 33136 To COUNTY: Attention.- Section ttention: Section 12.SEVERABILITY If any term or provision of the License Agreements, as amended, or the application thereof to any person or circumstances, shall, to any extent, be held invalid or unenforceable, the remainder of the License Agreements, as amended, or the application of such terms or provisions, to persons or circumstances other than those as to which it is held invalid or M unenforceable, shall not be affected, and every other term and provision of the License Agreements, as amended, shall be deemed valid and enforceable to the extent permitted by law. Section 13. EXHIBIT(S) The Exhibit(s) attached to this Amendment are incorporated fully into this Amendment by this reference. Section 14. CAPTIONS The captions and section designations contained in this Amendment are for convenience only and shall have no substantive meaning. Section 15. MODIFICATIONS TO AGREEMENT None of the provisions, terms and conditions contained in the License Agreements, as amended, may be added to, modified, superseded or otherwise altered, except by written instrument duly executed by the parties to this Amendment. Section 16. PUBLIC RECORDS The parties to this Amendment shall have access to public records pursuant to Chapter 119, Florida Statutes. Section 17. ENTIRETY OF AGREEMENT It is agreed that, except as provided in the License Agreements and the Settlement Agreement, this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated in this document. Section 18. ACCESS AND AUDITS BRIGHTLINE shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the work for at least three (3) years after completion of the work associated with such charges, expenses and costs. The COUNTY shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at BRIGHTLINE's place of business. -7- Attest: CLERK & COMPTROLLER By: Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY By: County Attorney FECR: Florida East Coast Railway, L.L.C. By: Robert Ledoux, VP and General Counsel Date: BRIGHTLINE: Brightline Trains LLC By.- Patrick y:Patrick Goddard, President Date: COUNTY BOARD OF COUNTY COMMISSIONERS: By: Date.- APPROVED ate:APPROVED AS TO TERMS AND CONDITIONS By: Department Director Date: I&Z EXHIBIT A Crossing Agreements Listing Location Mile Street AAR/DOT#Agreement License Post Name Holder Agreement I2 CROSSING AGREEMENT AMENDMENT BY AND AMONG. FLORIDA EAST COAST RAILWAY, LLC, BRIGHTLINE TRAINS LLC, AND THE CITY OF , PERTAINING TO RAILWAY CROSSINGS COVERED BY EXISTING CROSSING LICENSE AGREEMENTS THIS Crossing Agreement Amendment (hereinafter "Amendment") is made and entered into this day of 2018, by and among FLORIDA EAST COAST RAILWAY LLC, a Florida Limited Liability Company, with an address of 7411 Fullerton Street, Suite 300, Jacksonville, FL 32256 (hereinafter "FECR") BRIGHTLINE TRAINS LLC, a Delaware Limited Liability Company (authorized to do business in Florida), with an address of 161 NW 6T" ST, STE. 900, Miami, FL 33136 (hereinafter "BRIGHTLINE"), and THE CITY OF a Florida municipal corporation (hereinafter "CITY") (collectively, the "Parties"). RECITALS WHEREAS, FECR owns and operates a rail corridor located within the boundaries of CITY; and WHEREAS, CITY has various roadways that cross the FECR right-of-way as listed in Exhibit A, as such Crossings are more particularly defined in various license and/or crossing agreements(hereinafter individually and in the aggregate, as the case requires, referred to as "Crossings"); and WHEREAS, FECR has entered into various license and/or crossing agreements with CITY that set forth the rights and obligations of the Parties with respect to each of the Crossings, as amended and assigned to date, as listed in Exhibit A (hereinafter "License Agreements"); and WHEREAS, BRIGHTLINE is developing an intercity passenger rail service from Miami to Orlando, to be located within FECR's railway right-of-way (hereinafter "Project"); and WHEREAS, FECR has agreed to allow BRIGHTLINE to utilize its rail corridor for the Project; and WHEREAS, in order to accommodate the Project it is necessary for BRIGHTLINE to install a second track which requires improvement, construction and alterations to existing Crossings; and WHEREAS, pursuant to the License Agreements, CITY is responsible for a portion of the costs related to improvements made to each Crossing; and WHEREAS, BRIGHTLINE has agreed to incur all costs related to the Crossing improvements to the extent required for the Project to ensure safety at public crossings and to commence passenger rail service; and WHEREAS, CITY finds that the terms of this Amendment will benefit the safety and welfare of the public; and - 1 - WHEREAS, BRIGHTLINE has entered into a Settlement Agreement with MARTIN and INDIAN RIVER COUNTIES and others, dated 2018 (hereinafter "Settlement Agreement"); NOW THEREFORE, for the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1. PURPOSE The purpose of this Amendment is to memorialize the agreement reached relating to the Project with respect to the Crossings and terms related to the construction, maintenance and safety of the Crossings. Section 2. LICENSE AGREEMENTS The Crossings, as improved for the Project, shall continue to be governed by the terms and provisions of the License Agreements, listed on Exhibit A. Section 3. BRIGHTLINE REPRESENTATIONS 3.1 Initial Develooment Costs. BRIGHTLINE shall fund and be responsible for all necessary and reasonable capital investments to complete the initial installation of crossing improvements at the Crossings to the extent required for compliance with currently applicable laws and requirements for passenger rail service (hereinafter, the "Initial Development Costs"). The Initial Development Costs may include some or all of the following, based on the individual requirements for each Crossing, as more specifically described in the final plans and drawings for each Crossing provided by BRIGHTLINE to CITY: the installation, relocation or alteration of new track and/or the existing track; cables; railroad devices; crossing structures; railroad signalization equipment; grade crossing surfaces; roadway, signage and pavement marking; co- habitation of roadway traffic signals impacted by the Project to railroad truss structures; relocation of any permitted CITY utilities and, any other element necessary to comply with all applicable laws and regulations. The Initial Development Costs do not include the costs of any other improvements to the Crossings related to the establishment of quiet zones or any other improvements required or desired by CITY, except as provided in the Settlement Agreement. Regardless of any provision to the contrary the License Agreements, CITY shall have no responsibility for any Initial Development Costs, except as provided in the Settlement Agreement. 3.2 Maintenance of Existing Crossing. If 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, that 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 the CITY may bear in accordance with the existing License Agreements. 3.3 Standards. BRIGHTLINE shall construct all track and crossing Project improvements at each Crossing in compliance with the crossing construction plans submitted by BRIGHTLINE to the CITY and incorporated in the Settlement Agreement, in Exhibit _ 3.4 Coordination. BRIGHTLINE and CITY agree to coordinate and cooperate -2- with each other at all times with regard to notice, permitting, mobilization and construction timing of the Project improvements. Elements of the Project may extend beyond the FECR right- of - way at certain Crossing(s) in order to complete the Project within aforementioned standards and guidelines. Where elements of the crossing upgrades extend beyond the FECR right-of- way at any crossing, BRIGHTLINE shall coordinate any required crossing upgrade work which must be performed outside of the FECR right-of-way with the CITY and obtain all necessary permits, subject to the terms of the Settlement Agreement. CITY acknowledges that it will grant to BRIGHTLINE the necessary permits for the installation and construction of any aspects of the crossing upgrades outside of the FECR right-of-way, subject to the terms of the Settlement Agreement. BRIGHTLINE will repave or restore the CITY's right-of-way if impacted by the crossing upgrade construction at BRIGHTLINE's expense. If there is striping on CITY streets which extends beyond the FECR right-of-way for a reasonably short distance , as part of the Project, BRIGHTLINE will re -stripe CITY's street along with the portions of the street within FECR's right-of-way at BRIGHTLINE's expense, subject to the terms of the Settlement Agreement. In connection with future maintenance at these Crossings, if comparable restriping is necessary outside of the FECR right-of-way, FECR will perform that restriping, and the costs of such restriping in the CITY's right-of-way shall be apportioned to CITY, subject to Section 6 below. 3.5 Minimal Disruption. BRIGHTLINE shall perform and complete the Project in a manner that minimizes disruption and inconvenience to CITY and the public but CITY recognizes that, as with any construction project, there will be unavoidable disruptions and inconvenience to CITY and the public. BRIGHTLINE will make every effort to coordinate Crossing closures so as not to adversely impact CITY'S scheduled special events. BRIGHTLINE shall make reasonable efforts to only close individual crossings for a period of not more than three (3) consecutive days, provided that the CITY acknowledges that some crossings may take longer, ideally no more than five days. BRIGHTLINE will coordinate with the CITY so that the crossing improvement work minimizes disruption and inconvenience to the CITY and its residents. 3.6 Maintenance of Traffic. BRIGHTLINE shall be responsible for the costs of Maintenance of Traffic signage during the Project. BRIGHTLINE or its contractor shall submit a Maintenance of Traffic plan for each individual Crossing to the CITY a minimum of four (4) weeks prior to the commencement of Project work. CITY agrees to approve such plan, provided it is in compliance with federal, state, and local maintenance of traffic requirements. 3.7 Quiet Zone. If CITY successfully obtains approval to classify the crossings within its boundaries as part of a Quiet Zone, prior to BRIGHTLINE's installation of the various crossing upgrades identified above, BRIGHTLINE agrees to install the quiet zone required improvements to the crossings, at the expense of CITY or such other governmental agency that agrees to pay the expenses associated therewith. 3.8 Budget Estimates. To accommodate CITY's statutory budget process and fiscal year (October 1St _ September 30th, referred to as "Government Fiscal Year"), FECR agrees to utilize commercially reasonable efforts to provide to CITY, no later than April 1St each year, the list of Crossings scheduled for maintenance during the upcoming Government Fiscal Year, along with an estimate of any and all costs or expenses for which CITY will be responsible under the License Agreements during such Government Fiscal Year. CITY acknowledges that emergency and unanticipated repairs may be necessary at crossings periodically, and FECR may not be able to provide normal advance notice thereof. This provision shall survive any expiration or termination of the License Agreements, as amended. -3- 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 Proiect 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 Proiect 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. 5.3 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 -4- 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 respect to 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 terms 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 Term. 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 -5- of Florida. Any questions or matters arising under the License Agreements as to validity, construction, enforcement, performance, or otherwise, shall be determined in accordance with the laws of the State of Florida. Venue for any action arising out of or in any way related to this Amendment shall be as provide in the License Agreements. Section 11. NOTICE All notices required in the License Agreements, as amended, shall be sent by, hand delivery or overnight commercial courier. Notices shall be addressed as follows: To FECR: Attention: Robert Ledoux, VP and General Counsel Florida East Coast Railway L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, FL 32256 To BRIGHTLINE: Attention: Patrick Goddard, President Brigthline Trains LLC 161 NW 6th St, Ste. 900 Miami, FL 33136 To CITY: Attention: Section 12.SEVERABILITY If any term or provision of the License Agreements, as amended, or the application thereof to any person or circumstances, shall, to any extent, be held invalid or unenforceable, the remainder of the License Agreements, as amended, or the application of such terms or provisions, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of the License Agreements, as amended, shall be deemed valid and enforceable to the extent permitted by law. Section 13. EXHIBIT(S) The Exhibit(s) attached to this Amendment are incorporated fully into this Amendment by this reference. Section 14. CAPTIONS The captions and section designations contained in this Amendment are for convenience only and shall have no substantive meaning. Section 15. MODIFICATIONS TO AGREEMENT None of the provisions, terms and conditions contained in the License Agreements, as amended, may be added to, modified, superseded or otherwise altered, except by written instrument duly executed by the parties to this Amendment. Section 16. PUBLIC RECORDS W -V The parties to this Amendment shall have access to public records pursuant to Chapter 119, Florida Statutes. Section 17. ENTIRETY OF AGREEMENT It is agreed that, except as provided in the License Agreements and the Settlement Agreement, this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated in this document. Section 18. ACCESS AND AUDITS BRIGHTLINE shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the work for at least three (3) years after completion of the work associated with such charges, expenses and costs. The CITY shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at BRIGHTLINE's place of business. -7- FECR: Florida East Coast Railway, L.L.C. By: Robert Ledoux; VP and General Counsel Date: BRIGHTLINE: Brightline Trains LLC By: Patrick Goddard, President Date: Attest: CITY CLERK & COMPTROLLER BOARD OF CITY COMMISSIONERS: By: Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY 0 Date: APPROVED AS TO TERMS AND CONDITIONS By: By: CITY Attorney Department Director Date: ! EXHIBIT A Crossing Agreements Listing Location Mile Street I AAR/DOT# I Agreement License I Post Name Holder Agreement wz DRAFT 'A MUNICIPAL CROSSING COST REDUCTION AGREEMENT This Municipal Crossing Cost Reduction Agreement (the "Agreement") is made and entered into as of [Date] (the "Effective Date"), by and between [City/Town], a Florida municipal corporation ("Municipality"), and Brightline Trains LLC ("Brightline") (together, the "Parties"). RECITALS WHEREAS, Municipality is a Florida municipal corporation governed by a [City / Town Council] (the "Municipal Council"); WHEREAS, Municipality is located in [Martin / Indian River] County, a political subdivision of the State of Florida; WHEREAS, Brightline is a corporate entity tasked with developing and operating express passenger rail service between Miami and Orlando, Florida (the "Brightline Project"); WHEREAS, the bulk of Brightline's planned passenger service route, including the portion which will pass through [Martin / Indian River] County, will use the Florida East Coast Railway LLC ("FECR") railroad right-of-way (the "FECR ROW"); WHEREAS, Municipality has independent roadway crossing agreements with FECR, which are listed in Exhibit _ (the "Existing Municipal Crossing Agreements"); WHEREAS, to accommodate Brightline's express passenger service, Brightline is upgrading the portion of the FECR ROW between Miami and Cocoa by, inter alfa, upgrading existing railroad ties and tracks, installing a second set of mainline tracks, improving roadway crossings, and installing and activating Positive Train Control systems; WHEREAS, [Martin / Indian River] County and others recently entered into a Settlement Agreement with Brightline (the "Settlement Agreement") which included as a condition that Municipality be offered the opportunity to enter into this Agreement; and WHEREAS, Municipality desires to obtain the benefits of this Agreement, on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and other good and valuable consideration the receipt and the sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Definitions and Recitals. The defmitions and recitals above are incorporated herein by reference and made a substantive part of this Agreement. 2. Municipality Roadway Crossing Maintenance. Municipality shall execute amendments to the Existing Municipal Crossing Agreements, in the form attached as Exhibit _. The amendments shall not alter Municipality'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, Municipality and Brightline shall share responsibility for paying Municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Municipality shall pay up to $[Average Historical Cost] of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Municipality 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. For example, if Municipality were to receive a total of $[Amount Less Than Average Historical Cost] in invoices from FECR in a particular calendar year, Municipality would be obligated to pay those invoices in full; but if Municipality were to receive a total of $[Amount More Than Average Historical Cost] in invoices from FECR in a particular calendar year, Municipality would only be obligated to pay $[Average Historical Cost], and upon such payment, Brightline would be obligated to pay the balance due — $[Difference]. The amendments shall further provide that Municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. [Note: Municipality'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.] 3. Commitments of Municipality Regardingthe e Britline Project. (a) Municipality hereby agrees that it will not oppose or challenge, or encourage others to oppose or challenge, any pending or future federal, state, or local approval, permit, or authorization relating to the Brightline Project, or the financing of the Brightline Project, or seek any further state, federal or local environmental or other review with respect to the improvements which Brightline is committing to make in the Settlement Agreement, during the period of construction and the first five (5) years of Brightline passenger revenue operations between West Palm Beach and Orlando, including but not be limited to any approval, permit, or authorization issued by the U.S. Department of Transportation, the Federal Railroad Administration, the U.S. Army Corps of Engineers, the U.S. Coast Guard, the Florida Department of Transportation, the St. Johns River Water Management District, and the South Florida Water Management District, as well as the Final Environmental Impact Statement issued for the Brightline Project and any other NEPA, NHPA, or related project review/consultation documents. (b) Municipality hereby acknowledges and agrees that it has evaluated the work currently proposed to be done within Municipality as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Municipal permitting requirements. (c) Municipality shall not seek to impose any local approval or permitting requirements with respect to work to be done within the FECR ROW. (d) During the period of construction and the first three years of Brightline passenger revenue operations between West Palm Beach and Orlando, Municipality will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal or state legislation, or new local laws or regulations that would directly -2- and adversely impact the Brightline Project. (e) Municipality will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal, state, county, or local laws or regulations that would directly and adversely impact Brightline's ability to comply with any term of the Settlement Agreement or this Agreement, or vary any commitment made under the Settlement Agreement or this Agreement. 4. Notice and Opportunity to Cure. In the event that a Party alleges another Party to be in material breach of this Agreement, the Party alleging the material breach shall provide the other Party with written notice identifying with specificity the date and location of the perceived material breach and the provision of the Agreement breached ("Cure Notice"). The Party receiving such Cure Notice shall have thirty (30) days from the time it receives the Cure Notice (the "Cure Period") to either (a) cure the alleged material breach and respond in writing, describing what remedial action has been taken, or (b) respond in writing, explaining why no breach has occurred. During the Cure Period, and afterward, the Parties shall cooperate in good faith to resolve the alleged material breach. If the Party alleged to have materially breached this Agreement cures or otherwise satisfactorily responds to the alleged material breach within the Cure Period, the Party alleging the material breach shall not file a lawsuit or take other action predicated upon the alleged material breach. If the Party alleged to have materially breached the Agreement does not cure or satisfactorily respond to the alleged material breach within the Cure Period, the other Party shall be entitled to file suit to cure the alleged material breach and seek to terminate this Agreement and/or the contemplated amendments to the Existing Municipal Crossing Agreements. 5. Compromise. This Agreement is made in compromise of a dispute. Nothing herein shall be construed or deemed an admission of liability or wrongdoing. 6. Entire Agreement. This Agreement contains the entire agreement of the Parties, and supersedes any and all prior negotiations, representations, understandings, and agreements, whether oral or in writing, with respect to the subject matter hereof. 7. Modification. This Agreement may not be amended, modified, released, discharged, or otherwise terminated, in whole or part, except by an instrument in writing signed by authorized representatives of the parties hereto. 8. Construction. This Agreement was drafted by counsel for the Parties and shall not be construed more strictly against any Party on the ground that it was the drafter. 9. Governing Law; Attorneys' Fees. This Agreement shall be construed and the legal relations between the Parties shall be determined in accordance with Florida law. In any litigation or other legal proceeding arising out of or related to this Agreement, both parties agree to waive claims for attorneys' fees and costs. 10. Waiver. Each Party acknowledges and agrees that it has had the opportunity to consult with counsel of its choice in deciding whether to enter this Agreement. Each Party further acknowledges that it was not fraudulently induced, coerced, or intimidated to sign this -3- Agreement, and agrees not to seek to upset this Agreement by reason of any fact or matter, including but not limited to the discovery of any claim or defense not presently known to it. Each Party affirmatively waives and releases any claim that it has been misled or fraudulently induced to enter this Agreement. 11. Authority. Each Party represents and warrants that it is authorized to enter this Agreement, and that the individual executing this Agreement on its behalf has the legal authority to do so. The Municipal Council's resolution authorizing the execution of this Agreement are attached hereto as Exhibit _ The Brightline resolution authorizing the execution of this Agreement is attached hereto as Exhibit _ 12. Counterparts. This Agreement may be executed in counterparts, by facsimile, each of which shall be deemed an original but all of which shall constitute one instrument. 13. Venue. Venue for disputes arising out of or relating to this Settlement Agreement shall be in the U.S. District Court for the Southern District of Florida, Fort Pierce Division, or state court in St. Lucie County, Florida. [Remainder of Page Intentionally Left Blank] -4- IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have set their hands and seals to this instrument as of the Effective Date above. ACCEPTANCE BY MARTIN COUNTY a Florida municipal corporation, a-] Chairman, Municipal Council ACCEPTANCE BY BRIGHTLINE TRAINS LLC BRIGHTLINE TRAINS LLC, a Delaware limited liability company Patrick Goddard President -5- ATTESTED: L -In [INSERT] APPROVED AS TO FORM AND CORRECTNESS: M. [INSERT] Municipality Attorney ATTESTED: Myles L. Tobin, Esq. General Counsel Attachment 2 Proposed Brightline Security Fence Segments North limit South Limit jNorth County line) Sebastian Industrial PlaCe _-River ManlyAvenue South of Barber Street (Gator Drive) North of 87°1 Street i South of CR 510 _ e _ W Street 551^ Street North -W49' Street _ 38'hLane Aviation Boulrvafd 17" street __.. . 13 Lane 901 Street ---•_-•-- - _ 4� PlaCe — – - 15`" Street SW -- Highland Drive South County Line POP 22ass ouch.r fq ana 6iVwW� Cartl.l Prn Conmrnb Proposed Security Fence Segments COU ay ROAD 512 -. . 86TH ST Legend IRe_Raikoad WM Proposed Fen oe ....... �. Pps 23 of 25 00tcMf30 2DU Proposed Security Fence Segments 77TH ST (HOBART RD) �J 69TH ST (u tMWER BEACH �1 65TH ST (S tWNTER BEACH RD) O a to ...................... T 53RD ST s 63RD ST ffAwBERRYRD 4ST4ST (LINDSEYRO) tyR D �s 2 R � 41ST ST (S GhTORD RD) gp 41ST ST (C0UhgYROAD 6M S Legend -�--�- tRC Raikoad r3 RvposBd Ferxw 25TH ST (Wi UMM19 26TH ST MAUERAV) 2M 20TH ST TISTPRt14D P• .. 213T8T Pap 24 of 25 October 10, 2M bfthdin- PaRM PAW fsneaeres Proposed Security Fence Segments s: s 16TH ST (ROSEAmow �) < O T71"M ST E CAUSEIVAY BLVD m r 12TH ST (ROSEDALE RD) _ _ S: � rn C, F " BTH 3i (6LFNDALERD) O 4TH 3T (ClTRU3 RD) 1 1ST ST SW (CARTER RD) - m c 5TH ST SW (REBEL RO)'y = zz 9TH ST SW (OSLO RD) 999 go. 23RD ST SW Legend - • IRC Railroad Proposed Fence Page 25 of 75 Dccas. 1% 2018 Brlghtllne Partial Pian Commmtia f i 1 L, REAL ESTATE LEASE (Land, Inside ROW — Annual Term) The Real Estate Lease (this "Lease") is made effective as of this _ day of , 201_, by and between FEC ROW LLC, a Florida limited liability company ("Lessor") and [Name of Lessee], a [Type of Entity], whose business address is [Lessee's Address] ("Lessee"). LA Leased Premises: Lessor hereby leases to Lessee and Lessee hereby leases from Lessor under the terms and conditions set forth in this Lease, the following described property: SEE EXHIBIT A [Attached hereto and made a part hereof) All as shown on Lessor's Drawing No [Insert Drawing #l, dated [Insert Drawing Datel, attached hereto as Exhibit B, and made a part hereof, located within the Florida East Coast Railway, L.L.C. right of way (the "ROW") (collectively with any buildings, facilities and improvements currently or in the future located on the described property, the "Leased Premises"). LB Railway and BRIGHTLINE are Third Party Beneficiaries The parties hereto agree and acknowledge that (i) Lessor, formerly known as FDG Flagler Station H LLC, which, in turn, was formerly known as FDG ROW Holdings LLC, and Florida East Coast Railway, L.L.C., successor by merger to Florida East Coast Railway Company (the "Railway") entered into that certain First Amended and Restated Grant of Easements (the "Easement") as recorded in Book 46741 Page 177 in current Public Records of Broward County, Florida, pursuant to which the Railway granted to Lessor certain rights with respect to the ROW, including the right to enter into this Lease, and (ii) the terms and conditions of the Easement require that the Railway and Brightline Trains LLC `BRIGHTLINE" (including its successors and assignors) shall be third party beneficiaries of this Lease due to the Railway's and BRIGHTLINE's continuing use of the ROW. Accordingly, by executing this Lease (with initials set forth below), Lessee agrees to abide by the terms and conditions set forth herein (including, without limitation, those terms and conditions that are for the benefit of the Railway and BRIGHTLINE) and that, in addition to the rights and remedies granted Lessor herein, the terms and conditions set forth herein shall be enforceable against Lessee by the Railway and BRIGHTLINE as third party beneficiaries. Further, unless requested otherwise by Lessor and excluding payments hereunder, a copy of each notice, request (including requests for consent) and/or delivery made by the Lessee hereunder to Lessor shall be simultaneously delivered to the Railway at c/o General Counsel, Florida East Coast Railway, L.L.C., 7411 Fullerton Street, Suite 300, Jacksonville, Florida 32256. County: [ Insert County ] 1 File No.: [ Insert File No. ] 2. Term The term of this Lease shall be from [Insert month, day & year] through [Insert month, day, & year] (the "Term"); provided, however, that Lessee shall have no right to possession of the Leased Premises until (a) the Security Deposit has been delivered to Lessor and, if the Security Deposit is in the form of a check, the Security Deposit shall not be deemed delivered to Lessor until that check has cleared the bank and funds have been credited to Lessor's account and (b) Lessee has provided Lessor with a certificate of insurance evidencing the insurance coverages Lessee is obligated to maintain pursuant to this Lease. This Lease shall automatically renew after the expiration of the Term, for successive twelve (12) month renewal periods (the "Renewal Terms") unless terminated at least thirty (30) days. before the expiration of the Term or Renewal Term, as the case may be, by furnishing written notice of termination to the other party. Unless Lessor indicates otherwise in writing, the covenants and conditions of this Lease in force during the Term, as the same may be modified from time to time, shall continue to be in effect during all Renewal Terms, except that the Base Rent (as hereinafter defined) for each Renewal Term shall be increased by five percent (5%) of the Base Rent for the term immediately preceding the Renewal Term or, upon 30 days notification to Lessee by Lessor prior to the termination of the Renewal Term, Lessor shall establish a new Base Rent in its sole discretion. Except as set forth in this paragraph 2, Lessee shall have no expectation of renewal and this Lease may be terminated in accordance with its terms regardless of the length of time Lessee has occupied the Leased Premises, or the construction by Lessee of any buildings, structures, works, paving, barricades or the placement of Lessee's personal property on the Leased Premises. 3. Rent (a) Base Rent During the Term of this Lease, the Lessee shall pay to Lessor [an/a] [annual/semi- annual/quarterly/monthly] rent in advance on or before the 1 st day of each term [year/half- year/quarter/month] plus all sales or use taxes levied by any governmental body for the use or occupancy of the Leased Premises ("Sales and Use Tax"), as set forth below ("Base Rent"):: Effective Date Base Rent Base Rent and Additional Rent (as hereinafter defined) shall be paid to Lessor at FEC ROW LLC, P.O. Box 744305, Atlanta, Georgia 30374, or as otherwise indicated on the applicable invoices. The requirement to pay Base Rent, Additional Rent and other payments shall survive expiration or termination of this Lease until all Lessee's Property (as defined in paragraph 14 hereof) is removed from the Leased Premises in accordance with this Lease and the requirements of paragraph 14 of this Lease are met. 2 (b) Additional Charges If Lessee's presence or activities on the Leased Premises causes Lessor to incur costs for cleaning, trash removal, inspections, or like expenses, Lessee agrees to pay such cost to Lessor on demand, the amount of such costs incurred by Lessor. Notwithstanding the foregoing, Lessee will pay on demand the greater of the actual inspection costs or $350.00 for any inspection conducted by Lessor or its agents (including representatives of the Railway and BRIGHTLINE) on the Leased Premises the results of which show, in Lessor's sole determination, a violation of this Lease or any federal, state or municipal law or regulation. Lessee shall also pay on demand the greater of the actual inspection costs or $350.00 for any follow-up inspections related to the violation. (c) Late Charge If any Base Rent or other payment due under this Lease is not received by Lessor within ten (10) days of the due date of such payment, Lessee shall pay, in addition to such payment a late charge equal to the greater of five percent (5%) of the payment which is past due or Two Hundred Fifty and No/100 Dollars ($250.00). If any payment due from Lessee shall remain overdue for more than ten (10) days, interest shall accrue daily on the past due amount from the date such amount was due until paid or judgment is entered at a rate equivalent to the lesser of eighteen percent (18%) per annum or the highest rate permitted by law. Interest on the past due amount shall be in addition to and not in lieu of the five percent (5%) late charge or any other remedy available to Lessor hereunder, at law and/or in equity. (d) Additional Rent All charges payable by Lessee under the terms of this Lease other than Base Rent, including, without limitation, Sales and Use Tax, and charges, expenses, costs or payments due pursuant to Paragraphs 3(b), 3(c), 4(a), 4(b), 4(c) and 4(d) of this Lease are called "Additional Rent." Unless this Lease provides otherwise, all Additional Rent shall be paid with the next [annual/semi-annual/quarterly/monthly] installment of Base Rent and shall include all applicable sales or use taxes. The term "Rent" shall mean Base Rent and Additional Rent. 4. Utility Charges, Taxes, Document Stamps (a) Utility Charges All charges on the Leased Premises for all utilities, including but not limited to water, electricity, telephone, gas, heat, storm water, and sewers and for taxes on Lessee's improvements shall be paid by the Lessee within ten (10) days after date of invoice. (b) Ad Valorem Taxes Lessee agrees to pay, within thirty (30) days after presentation unto Lessee by Lessor, bills for all special assessments, ad valorem taxes and any other taxes of whatsoever kind or nature levied by the United States of America, State of Florida, any county, municipality or special taxing district organized and existing under the laws of the State of Florida, upon any of 3 the Lcased Premises on a pro -rated basis. All taxes and special assessments, payable on an annual basis, are to be pro -rated by the parties hereto for the year during which this Lease is made, as well as the year in which the same may be terminated. (c) Document Stamps Lessee shall pay any necessary documentary stamp taxes required to be affixed to this Lease under the laws of the United States of America, the State of Florida, or both. (d) Sales and Use Tax, Personal Property Tax Lessee will pay all Sales and Use Taxes and all personal property taxes that may be levied or assessed against the personal property of the Lessee. 5. As Is, Maintenance LESSOR MAKES NO WARRANTY, REPRESENTATION OR UNDERTAKING, EXPRESSED OR IMPLIED AS TO THE CONDITION OF THE LEASED PREMISES and Lessee, at its sole cost and expense, hereby agrees to put the Leased Premises in such condition for its proposed use and to maintain them in their entirety. The Leased Premises is leased as it currently exists in an AS IS condition and the Lessee, who has inspected the Leased Premises prior to entering into this Lease, accepts the Leased Premises AS -IS and shall henceforth be responsible for any and all repairs and maintenance to the land and any buildings, facilities and improvements located thereon. Lessee shall, at its sole cost and expense, obtain any required permits and consents and perform all work required for the preparation of the Leased Premises for occupancy by Lessee, in the absence of any special provision herein contained to the contrary, and Lessee does hereby accept the Leased Premises as now being in fit and leaseable condition for all purposes of Lessee. Lessee will keep the Leased Premises free and clear of any and all trash, brush and debris of any kind, so as to prevent the trash, brush and debris from becoming dangerous, inflammable or objectionable. Lessor shall have no duty to inspect or maintain any of the Leased Premises during the term of this Lease. Lessee shall have no claim of any kind or description for damages to goods, wares, personal property or merchandise on'the Leased Premises from Agy cause whatsoever, INCLUDING FIRE, STORM, CASUALTY OR ACT OF GOD, OR NEGLIGENCE OF LESSOR, THE RAILWAY, OR BRIGHTLINE UNLESS CAUSED BY THE WILLFUL OR INTENTIONAL ACTS OF LESSOR, THE RAILWAY, OR BRIGHTLINE. 6. Lessee's Compliance With Law (a) Zoning and Use Regulation Lessee will release Lessor from any loss, claim or damage which Lessee may sustain arising directly or indirectly by reason of either existing or future zoning or other regulations promulgated by any governmental agency which may adversely affect use by Lessee 4 of the Leased Premises. Lessee shall assume all responsibility for procuring or complying with any ordinance, resolution, order, permit, consent or other such regulation, promulgated by any governmental agency whatsoever, for building or otherwise, required for the use of the Leased Premises or for the construction of any facilities upon the Leased Premises. Lessee shall indemnify, defend and hold harmless Lessor, BRIGHTLINE and the Railway from any loss, claim or damage suffered by Lessor, BRIGHTLINE or the Railway for Lessee's failure to properly and completely perform this responsibility, (b) Other Regulation Lessee shall comply with all federal, state and municipal regulations as to health, safety, zoning, police, nuisance, fire, water, liquid, solid waste and hazardous waste, highways, sidewalks and other matters, and with the regulations of all persons or corporations supplying water, gas, heat, electricity, telephone, or steam on the premises, and shall indemnify Lessor, BRIGHTLINE and the Railway against all fines, penalties, expense, damages and costs for violation thereof. Lessee is solely responsible for obtaining any and all federal, state and local licenses, permits, or other authority for its use of the premises and shall indemnify and hold harmless Lessor, BRIGHTLINE and the Railway against all fines, penalties, expenses, damage and costs for violation of or failure to comply with any federal, state or local laws or regulations. The provisions of this Paragraph 6 shall survive the expiration or any termination of this Lease. 7. Hazardous Materials Lessee will prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of any Hazardous Materials (as hereinafter defined) on, under, in, above, to, or from the Leased Premises except that Hazardous Materials may be used in the Leased Premises as necessary for the customary maintenance of the Leased Premises provided that same are used, stored and disposed of in the ordinary course of business in strict compliance with applicable laws. For purposes of this provision, the term "Hazardous Materials" will mean and refer to any wastes, materials, or other substances of any kind or character that are or become regulated as hazardous or toxic waste or substances, or which require special handling or treatment, under any federal, state or local laws. If Lessee's activities at the Leased Premises or Lessee's use of the Leased Premises (a) results in a release of Hazardous Materials that is not in compliance with applicable laws or permits issued thereunder; (b) gives rise to any claim or requires a response under common law or applicable laws or permits issued thereunder; (c) causes a significant public health effect; or (d) creates a nuisance, then Lessee shall, at its sole cost and expense: (i) immediately provide verbal notice thereof to Lessor (with a follow-up of written notice to Lessor in the manner required by this Lease), which notice shall identify the Hazardous Materials involved and the emergency procedures taken or to be taken; and (i) promptly take all action in response to such situation required by applicable laws, provided that Lessee shall first obtain Lessor's approval of the non- emergency remediation plan to be undertaken. The provisions of this Paragraph 7 shall survive the expiration or any termination of this Lease. 5 Inspection and Access by Railway and BRIGHTLINE Lessor shall have the right, at reasonable times and upon reasonable prior notice to Lessee, to enter the Leased Premises for the purpose of examining and inspecting the condition of the Leased Premises and to evaluate Lessee's compliance with the terms and conditions of this Lease. The Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not Lessee's use of the Leased Premises is in compliance with the terms of this Lease, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any non-compliance issues identified by the Railway and/or BRIGHTLINE. In accordance with the foregoing, each of Lessor, BRIGHTLINE and the Railway shall have the right at all times to enter the Leased Premises without prior notice to Lessee and take action in the event of any emergency affecting the Leased Premises, including but not limited to leakage of Hazardous Materials or other materials from or onto the Leased Premises, the detection of odors that appear to be coming from the Leased Premises, suspected illegal activity on or use of the Leased Premises for like activities or events. Lessee hereby releases and holds Lessor, BRIGHTLINE and the Railway harmless from any action taken by Lessor, BRIGHTLINE and/or the Railway to access the Leased Premises under the conditions set forth herein and/or to control or respond to any emergency affecting the Leased Premises. 9. Signs Lessee shall not place any signs on the Leased Premises except with the prior written consent of the Lessor, including consent as to location and design, which may be withheld in Lessor's sole discretion. Any and all such approved signs shall be installed and shall be maintained by Lessee, at its sole cost and expense and shall be in compliance with all applicable laws. Lessee shall be responsible to Lessor for the installation, use, or maintenance of said signs and any damage caused thereby. Any signs on the Leased Premises shall be considered part of Lessee's Property for purposes of Paragraph 14 hereof and Lessee shall remove said signs in accordance with same prior to termination or expiration of the Lease. 10. INDEMNIFICATION A. Indemnification Lessee hereby agrees to indemnify, defend and hold harmless Lessor, BRIGHTLINE and the Railway from and against any and all liability for any loss, injury or damage, including, without limitation, damage to the Leased Premises or to Lessee's property, consequential damage, all costs, expenses, court costs and reasonable attorneys' fees, imposed on Lessor, BRIGHTLINE and/or the Railway, as applicable, by any person whomsoever that occurs on or in (i) the Leased Premises, or (ii) any lands, buildings, structures, access areas or the like adjacent to the Leased Premises, as a result of or arising from or related in any way to the acts or failure to act of Lessee, its employees, agents or contractors, including any failure to comply with the terms and conditions of this Lease, or the presence of Lessee, its employees, agents or contractors, or the property of any of the same, on the Leased Premises or adjacent areas, and REGARDLESS OF THE CAUSE AND REGARDLESS OF WHETHER ATTRIBUTABLE TO THE FAULT, FAILURE OR NEGLIGENCE OF LESSOR, BRIGHTLINE AND/OR THE 1.1 RAILWAY. The commercial liability insurance that Lcssce is required to carry pursuant this Lease shall include coverage of the foregoing contractual indemnity. The provisions of this paragraph l O.A. shall survive the expiration or any termination of this Lease. B. Lessee's Insurance Lessee will throughout the Term and any Renewal Terms (and any other period when Lessee is in possession of the Leased Premises or has failed to comply with the requirements of paragraph 14 of this Lease) carry and maintain, at its sole cost and expense, the following types of insurance, which shall provide coverage on an occurrence basis, with respect to the Leased Premises, in the amounts specified with deductible amounts reasonably satisfactory to Lessor: (1) Commercial General Liability Insurance. Commercial general liability ("CGL") insurance covering claims arising from personal injury, death and property damage with minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 general aggregate and insuring against legal liability of the insured with respect to the Leased Premises or arising out of the maintenance, use or occupancy thereof. The CGL policy shall include contractual liability coverage of all such liabilities arising pursuant to this Lease. (2) Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance with a limit of not less than $1,000,000.00 per occurrence for bodily injury, $500,000.00 per person and $100,000.00 property damage or a combined single limit of $1,000,000 for both owned and non -owned vehicles. (3) Excess Liability Insurance. Lessee shall also carry and maintain umbrella liability insurance with a limit of not less than $4,000,000.00 per occurrence. (4) Property Insurance. None. (5) Workers' Compensation and Employers' Liability Insurance. Workers' Compensation Insurance covering all employees of Lessee, as required by the laws of the State of Florida and Employers' Liability coverage subject to a limit of no less than $500,000 each employee, $500,000 each accident, and $1,000,000 policy limit. (6) Policy Form. All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida having an AM Best's rating of A-, Class IX, or otherwise approved in advance by Lessor; (ii) name Lessor, BRIGHTLINE and the Railway as additional insured; (iii) be non-contributing with, and shall apply only as primary and not as excess to any other insurance available to Lessor, BRIGHTLINE and the Railway or any mortgagee; (iv) have all railroad exclusions removed, and (v) contain an obligation of the insurers to notify Lessor, BRIGHTLINE and the Railway by certified mail not less than thirty (30) days prior to any material change, cancellation, or termination of any such policy. Certificates of insurance on Lessor's standard form or, if required by a mortgagee, copies of such insurance policies certified by an authorized officer of Lessee's insurer as being complete and current, shall be delivered to Lessor prior to Lessee's use of the Leased Premises hereunder and promptly upon request. If Lessee fails to deliver the required certificates or certified policies, fails to take out or to keep in force any FI insurance required hereunder, or should any such insurance not be approved by Lessor or any mortgagee, then Lessor has the right, without assuming any obligation in connection therewith, to procure such insurance at the sole cost of the Lessee, and all outlays by Lessor shall be paid by the Lessee to Lessor without prejudice to any other rights or remedies of Lessor under this Lease. Lessee shall not keep or use in the Leased Premises any article that may be prohibited by any fire, casualty or other insurance policy in force from time to time covering the Leased Premises. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not the insurance maintained by Lessee is in compliance with the terms of this Lease, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any non-compliance issues identified by the Railway and/or BRIGHTLINE. C. Claims Handling If a claim or action is made or brought against either party and for which the other party may be responsible hereunder in whole or in part, such other party shall be notified and permitted to participate in the handling or defense of such matter. 11. Purpose of Lease The premises shall be used only for the purpose of [Insert description of use]. 12. No Interference with Railway and/or BRIGIITLINE Operations, Reservation of Rights The Lessee's use and/or maintenance of the Leased Premises shall not in any way, or at any time, interfere with or obstruct the use of the Leased Premises or of the ROW by Lessor, BRIGHTLINE or the Railway or their respective agents, employees, patrons or assigns. The Lessee will not discharge surface water upon any portion of the ROW or any of the Railway's or BRIGHTLINE's property and/or railroad tracks and Lessee hereby expressly releases Lessor, BRIGHTLINE and the Railway from liability for any surface water flowing across the ROW. Lessee further agrees not to alter the Leased Premises so as to cause water to drain or flow onto the ROW or any of the Railway's or BRIGHTLINE's property nor so as to cause an undermining of the ROW or any adjacent property. Lessee shall notify Lessor before performing any work on the Leased Premises. Notification shall be made to FEC ROW LLC, Attn: Craig Olson, 7411 Fullerton Street, Suite 301, Jacksonville, Florida 32256. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not the Railway and/or BRIGHTLINE objects to any such work, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any issues identified by the Railway and/or BRIGHTLINE with respect to such work. If Railway or BRIGHTLINE requires a railway watchman or flagman be present while work is performed on the Leased Premises, the Railway or BRIGHTLINE will provide such watchman or flagman at Lessee's sole cost and expense. E Lessee shall not have or assert any claim or demand whatsoever for compensation or damages to the Leased Premises or to any improvements now or hereafter erected or property located thereon which may be caused by the operation, maintenance, repair, relocation, or removal of the Railway's or BRIGHTLINE's railroad, their respective operations or which may be caused by vibration resulting from the operation of said railroad and Lessee releases Lessor, BRIGHTLINE and the Railway from any liability for any such damage. Unless specifically set forth in this Lease, no right of way, expressed or implied, over the ROW is granted by this Lease. It is understood between the parties hereto that Lessor reserves unto itself, its successors, permittees, licensees, or other persons, the right to construct and maintain other facilities, including but not limited to pipelines and/or communication cables, over, under and across the Leased Premises, and further, that Lessee shall take no measures to interfere with the construction or maintenance of said facilities and shall at all times allow ingress and egress to the Leased Premises by Lessor, BRIGHTLINE, the Railway and their respective successors, permittees, licensees or other persons provided that such shall not unreasonably interfere with Lessee's use of the Leased Premises in accordance with the terms hereof. Lessee acknowledges that the Leased Premises may contain fiber optic communication systems, railway signal and train control cables and other utilities. Prior to any digging or subgrade work on the leased premises, Lessee must notify Lessor and call SUNSHINE for utility locations at 1-800432-4770 and the Railway Signal Department at 1-800-342-1131 ext. 2377 for signal and train control cable locations. Proper notification is required for cable locations and field inspections to protect against damages. 13. Termination Either party may, in its discretion, for any reason whatsoever, terminate this Lease at any time by the giving of 30 days prior written notice to the other party. Notwithstanding the foregoing, until the requirements of Paragraph 14 of this Lease are met by Lessee, such termination shall not in any way release Lessee from any of its obligations under this Lease, including but not limited to Lessee's obligations to pay Rent and other charges and fees and maintain insurance, each in accordance with the terms and conditions of this Lease. 14. Condition of Premises on Termination The Lessee shall not mutilate, damage, misuse, or alter, the Leased Premises, but shall keep the same in good condition and repair. Any and all repairs, alterations or improvements made on the Leased Premises by Lessor at Lessee's request shall be at Lessee's sole cost and expense unless otherwise expressly agreed in writing. Except as otherwise set forth herein, upon the termination or expiration of the Lease, Lessee shall surrender the Leased Premises to Lessor in condition acceptable to Lessor. Prior to termination or expiration of this Lease, Lessee shall properly remove all trash, debris, and other waste materials from the Leased Premises. If Lessee is not then in default and if the personal 0 property of Lessee on the Leased Premises (the "Lessee's Property") is not then subject to any other rights, liens or interests of Lessor or if removal is not prohibited by law, Lessee shall also properly remove Lessee's Property prior to termination or expiration of this Lease. If Lessee is in default or Lessee's Property is subject to any other rights, liens or interest of Lessor, then Lessee shall remove only such of Lessee's Property as Lessor shall direct. In addition, if Lessor so directs Lessee shall remove any other property on the Leased Premises, whether such property was placed on the Leased Premises by Railway, BRIGHTLINE, Lessor or others and whether it was placed on the Leased Premises prior to or during the Lease term (the "Additional Property"). In no event, however, shall Lessee remove any of the following materials or equipment unless Lessor directs otherwise in writing: any power wiring or power panels; lighting or lighting fixtures; millwork and cabinetry; wall coverings; drapes, blinds or other window coverings; carpets or other floor coverings; heaters, air conditioners, or any other heating or air conditioning equipment; fencing or security gates; plumbing fixtures, water fountains; or other similar building operating equipment and decorations, structures, foundations, concrete, asphalt or fencing (collectively, "Fixtures"). Should Lessor direct Lessee to remove any or all of the Fixtures, whether such Fixtures were placed on the Leased Premises by Lessee, Railway, BRIGHTLINE, Lessor or others prior to or during the Lease term, Lessee shall properly remove such Fixtures prior to termination or expiration of this Lease. The removal of Lessee's Property, the Additional Property and the Fixtures shall be at Lessee's sole cost and expense. Lessee shall repair, at Lessee's expense, any damage to the Leased Premises caused by the removal of any of Lessee's Property, the Additional Property or the Fixtures. If Lessee fails to remove Lessee's Property, the Additional Property or the Fixtures, in addition to the payment requirements set forth in paragraph 3 hereof, at Lessor's option all or part of Lessee's Property, the Additional Property and/or the Fixtures will become the property of Lessor and/or at Lessor's option, Railway or BRIGHTLINE may cause removal of all or part of Lessee's Property, the Additional Property and/or the Fixtures from the Leased Premises and/or storage thereof. The reasonable cost or expense of removal and/or storage of any of Lessee's Property, Additional Property or Fixtures shall be paid by Lessee to Lessor forthwith upon demand for same. 15. Lessee Improvements Lessee will not erect or cause to be erected any building or other structure, and will not make or allow to be made any alterations in or to the Leased Premises, including, without limitation, the planting or installation of any trees, plants, shrubbery or other vegetation (collectively, the "Alterations") without first obtaining the written consent of Lessor, which consent may be granted or withheld in Lessor's sole discretion. Lessor may require Lessee to provide demolition and/or lien and completion bonds in form and amount satisfactory to Lessor. All Alterations shall be accomplished in a good and workmanlike manner at Lessee's sole expense, in conformity with all applicable laws by a licensed and bonded contractor approved in advance by Lessor, such approval of contractor not to be unreasonably withheld. All contractors working on Alterations shall carry workers' compensation insurance, commercial general liability insurance, automobile insurance and excess liability insurance in amounts reasonably acceptable to Lessor and shall deliver a certificate of insurance evidencing such coverages to Lessor prior to commencing work on the Leased Premises. Upon completion of any such work, Lessee shall provide Lessor with "as built" plans, copies of all construction contracts and/or landscape contracts, and proof of payment for all labor and materials. All legal and consulting' 10 fees and expenses incurred by Lessor in connection with Lessee's improvement plans and/or landscape plans, pursuant to this paragraph, together with any legal and consulting' fees and disbursements incurred in the review of any improvement plans, landscape plans, "as -built" plans, construction contracts, landscape contracts or any other documentation, will be paid by Lessee within thirty (30) days of invoice for payment thereof, as Additional Rent. Any Alterations to the Leased Premises made by or installed by either party hereto will remain upon and be surrendered with the Leased Premises and become the property of Lessor upon the expiration or earlier termination of this Lease without credit to Lessee; provided, however, Lessor, at its option, may require Lessee to remove or repair any Alterations to restore the Leased Premises to the condition existing at the time Lessee took possession, with all costs of removal, repair, restoration, or alterations, including, without limitation, removal of any trees, plants, shrubbery and vegetation to be borne by Lessee. This clause will not apply to moveable equipment, furniture moveable trade fixtures, or other personal property owned by Lessee, which shall be considered Lessee's Property for purposes of paragraph 14 and shall be removed by Lessee in accordance with Paragraph 14. Lessee will have no authority or power, express or implied, to create or cause any construction lien or mechanics' or materialmen's lien or claim of any kind against the Leased Premises or any portion thereof or any portion of the ROW. Lessee will promptly cause any such liens or claims to be released by payment, bonding or otherwise, but in any event not more than thirty (30) days after request by Lessor, and will indemnify Lessor, BRIGHTLINE and the Railway against losses arising out of any such claim including, without limitation, legal fees and court costs. NOTICE IS HEREBY GIVEN THAT LESSOR, BRIGHTLINE AND THE RAILWAY WILL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIAL FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER LESSEE, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS WILL ATTACH TO OR AFFECT THE INTEREST OF LESSOR BRIGHTLINE AND/OR THE RAILWAY IN THE PREMISES. LESSEE WILL DISCLOSE THE FOREGOING PROVISIONS TO ANY CONTRACTOR ENGAGED BY LESSEE PROVIDING LABOR, SERVICES OR MATERIAL TO THE LEASED PREMISES. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not the Railway and/or BRIGHTLINE objects to any proposed Alterations, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any issues identified by the Railway and/or BRIGHTLINE with respect to any such proposed Alterations. 16. Assignment Lessee will not assign this Lease, in whole or in part, or sublease the Leased Premises, in whole or in part, without the prior written consent of Lessor, which consent may be granted or withheld in Lessor's sole discretion, and in no event will Lessee be released from any obligation or liability under this Lease following any such assignment or sublease. Along with Lessee's request to Lessor to assign this Lease or sublease the Leased Premises, Lessee shall provide, along with any other information and documentation that Lessor may request, a copy of the proposed assignment or sublease. No assignee or sublessee of the Leased Premises or any portion thereof, may further assign or sublease its interest in the Leased Premises or any portion 11 thereof. All legal fees and expenses incurred by Lessor in connection with the review by Lessor of Lessee's requested assignment or sublease pursuant to this paragraph, together with any legal fees and disbursements incurred in the preparation and/or review of any documentation, will be paid by Lessee within thirty (30) days of invoice for payment thereof, as Additional Rent, but in no event, prior to execution by Lessor of the Assignment. If the rent due and payable by any assignee or sublessee under any permitted assignment or sublease exceeds the Base Rent payable under this Lease for such space, Lessee will pay to Lessor all such excess rent and other excess consideration within ten (10) days following receipt thereof by Lessee. 17. INTENTIONALLY OMITTED 18. Care Around Tracks Lessee shall adopt, monitor and enforce reasonable rules and regulations for the conduct of Lessee's employees, patrons, agents and contractors (including employees thereof) or any other persons using the Leased Premises to protect them from injury while on, about or near any track on or adjoining the Leased Premises and/or the ROW. 19. Destruction or Damage to Leased Premises If the Leased Premises (which shall not include Lessee's Property or property of a third party) are at any time materially damaged or destroyed by fire or other Acts of God preventing all use of the Leased Premises by Lessee for the purposes set forth in this Lease and the extent of such damage or destruction does not in any way result or arise from the acts or failure to act of Lessee, its employees, agents, invitees, visitors, customers, assignees, sublessees, contractors or subcontractors, Lessor shall have sixty (60) days from such damage or destruction to determine in its sole discretion and inform Lessee whether Lessor will restore the Leased Premises (excluding any Alterations and/or other improvements constructed by Lessee) to substantially the condition that existed immediately prior to the occurrence of the casualty. If Lessor determines not to restore the Leased Premises, it will notify Lessee and Lessee's sole remedy shall be to terminate the Lease upon 30 days prior written notice to Lessor. If Lessor elects to restore the Leased Premises (excluding any Alterations and/or other improvements constructed by Lessee), it will give Lessee its reasonable estimation of the time it will take to restore the Leased Premises. If in Lessor's reasonable estimation, the Leased Premises cannot be restored within two hundred forty (240) days of such damage or destruction, then either party may terminate this Lease by written notice to the other party. Subsequent to Lessor's determination to restore the Leased Premises as set forth herein, and until such restoration of the Leased Premises is complete, there shall be an abatement of the Base Rent. If all or part of the Leased Premises may be used by Lessee for the purposes set forth in this Lease during the period of such restoration, there will be no abatement of Base Rent. In addition, if the damage or destruction was caused by or increased in any way by the acts or failure to act of Lessee, its employees, agents, invitees, visitors, customers, assignees, sublessees, contractors or subcontractors, then Lessee shall be solely responsible for promptly returning the Leased Premises to their former condition and there will be no abatement of Base Rent. 20. Default 12 (a) DEFAULT. The following will be events of default by Lessee under this Lease: (1) Failure to pay when due any installment of Rent or any other payment required pursuant to this Lease; (2) Failure to deliver, maintain and/or timely restore the Security Deposit required under this Lease; (3) Failure to obtain and maintain the insurance required under this Lease; (4) The filing of a petition for bankruptcy or insolvency under any applicable federal or state bankruptcy or insolvency law; an adjudication of bankruptcy or insolvency or an admission by Lessee that it cannot meet its financial obligations as they become due, or the appointment of a receiver or trustee for all or substantially all of the assets of Lessee; the foregoing shall also apply to any guarantor of this Lease (a "Guarantor"), if any; (S) A transfer in fraud of creditors or an assignment for the benefit of creditors, by Lessee or any Guarantor; (6) Any act which results in a lien being filed against all or a portion of the Leased Premises or the ROW; (7) The liquidation, termination or dissolution of Lessee or any Guarantor of this Lease, or, if Lessee or any Guarantor is a natural person, the death of Lessee or such Guarantor; and (8) Failure to cure any breach or default of any provision of this Lease (excluding any provision dealing with payment of Rents or any other payments hereunder and/or any other provisions dealing with the matters contemplated by subsections (1)-(7) above) within 20 days after written notice thereof to Lessee. (b) REMEDIES. In the event of any default hereunder by Lessee, then without prejudice to any other rights which it has pursuant to this Lease or at law or in equity, Lessor shall have the following rights and remedies, which are cumulative and not alternative: (1) Lessor may terminate this Lease by notice to Lessee and retake possession of the Leased Premises for Lessor's account. Lessee shall then quit and surrender the Leased Premises to Lessor in accordance with the requirements of this Lease. Lessee's liability under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry, repossession, or disposition hereunder, including to the extent legally permissible, payment of all Rent and other charges until the date this Lease would have expired had such termination not occurred and the surrender of the Leased Premises in accordance with the requirements of this Lease. If Lessor so elects, Rent may be accelerated and Lessee shall pay Lessor damages in the amount of any and all sums that would have been due for the remainder of the Initial Term and/or any Renewal Term. 13 (2) Lessor may enter the Leased Premises as agent of the Lessee to take possession of any property of the Lessee on the Leased Premises, to store such property at the expense and risk of Lessee or to sell or otherwise dispose of such property in such manner as Lessor may see fit without notice to Lessee. Lessor shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its actions are in accordance with applicable law. (3) Lessor may relet all or any part of the Leased Premises for all or any part of the unexpired portion of the term of this Lease or for any longer period, and may accept any Rent then attainable; grant any concessions of Rent, and agree, at Lessee's expense, to paint or make any special repairs, alterations, and decorations for any new lessee as it may deem advisable in its sole and absolute discretion. Lessor shall be under no obligation to relet or to attempt to relet the Leased Premises greater than that imposed by applicable law. (4) Lessor may remedy or attempt to remedy any default of the Lessee under this Lease for the account of the Lessee and Lessor (and its agents and/or representatives) may enter upon the Leased Premises for such purposes. No notice of Lessor's intention to perform such covenants need be given. Lessor shall not be liable to Lessee for any loss or damage caused by acts of Lessor in remedying or attempting to remedy such default and Lessee shall pay to Lessor all expenses incurred by Lessor in connection with remedying or attempting to remedy such default. Any expenses incurred by Lessor shall accrue interest from the date of payment by Lessor until repaid by Lessee at the highest rate permitted by applicable law. (c) COSTS. Lessee shall pay to Lessor on demand all costs incurred by Lessor, including reasonable attorneys' fees and costs, (whether incurred in preparation for or at trial, on appeal, or in bankruptcy), incurred by Lessor in enforcing any of the obligations of Lessee under this Lease. In addition, upon any default by Lessee, Lessee shall also be liable to Lessor for the expenses incurred by Lessor in connection with re-entering the Leased Premises, reletting the Leased Premises and putting the Leased Premises into the condition necessary for such reletting (including attorneys' fees and disbursements, marshall's fees, and brokerage fees, in so doing), and any other expenses reasonably incurred by Lessor. (d) WAIVER. No delay or omission by Lessor in exercising a right or remedy shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default. (e) DEFAULT BY LESSOR. In the event of any default by Lessor of any material term of this Lease, Lessee will give Lessor written notice specifying such default with particularity, and Lessor shall have a period of thirty (30) days following the date of such notice in which to commence the appropriate cure of such default. If Lessor fails to commence and diligently pursue the appropriate cure of such 14 default after such notice or complete same within a reasonable period of time, Lessee may terminate this Lease upon written notice to Lessor. Notwithstanding any provision of this Lease, Lessor shall not at any time have any personal liability under this Lease, and Lessee's sole remedy with respect thereto shall be termination of the Lease. 21. Hold Over If Lessee remains in possession of the Premises after expiration of the Term without Lessor's written consent and without any express written agreement between the parties on an extension of the Term, Lessee shall be a tenant at sufferance as provided in § 83.04, Florida Statutes, and such tenancy shall be subject to the provisions thereof, except that Base Rent during the holdover period shall be one hundred fifty percent (150%) of the final payment of Base Rent in effect during the final month of the Term. Nothing in this paragraph shall be construed as the consent of Lessor to Lessee's possession of the Premises after the expiration of the Term. In addition to and not limiting any other rights or remedies which Lessor may have on account of Lessee holding over without written consent of Lessor, Lessee shall be liable for any and all direct and consequential damages incurred by Lessor on account of such unapproved holding over including claims by tenants entitled to future possession. 22. Condemnation If all or a portion of the Leased Premises shall be taken by public or quasi -public authority under any power of eminent domain or condemnation, this Lease, at the option of Lessor, shall forthwith terminate and the Lessee shall have no claim or interest in or to any award of damages for such taking. 23. Quiet Enjoyment If Lessee pays the Rent and all other charges and fully performs all of its obligations under this Lease, Lessee shall be entitled to peaceful and quiet enjoyment of the Leased Premises for the full term without interruption or interference by Lessor or any person claiming through Lessor. 24. No Waiver or Modification None of the provisions hereof shall be waived or modified, except by mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor subsequent verbal waiver, or modification, shall be binding under any circumstances. This Lease constitutes the entire understanding of the parties and neither the failure of Lessor to enforce each and every provision, nor any course of conduct by Lessor shall be considered as a waiver of these provisions. 25. Successors and Assigns 15 The provisions hereof shall be binding upon and inure to the benefit of the successor, executors, administrators and permitted assigns of the respective parties. 26. Special Notice Regarding Radon Gas Lessee is hereby notified that radon gas is a naturally occurring radioactive gas that, when accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over a period of time. Levels of radon that exceed federal and state guidelines have been found in buildings in the State of Florida. Lessee is further notified that additional information regarding radon gas, and the testing for radon gas, may be obtained from the Public Health Units of the various counties. 27. Restrictions Lessee agrees that no plants, shrubbery, trees or other vegetation that would obstruct the view of motor vehicles or train crews using a crossing at grade, or interfere with the operation of trains, will be placed on the Leased Premises. In addition to the above restriction, no plants, shrubbery, trees or other vegetation having a height of more than two (2) feet will be placed within two hundred and fifty (250) feet of any at grade street crossing, and if such vegetation exceeds two (2) feet in height, Lessor, BRIGHTLINE or the Railway may trim such vegetation to a two (2) foot height at Lessee's expense. Plants, shrubbery, trees or other vegetation shall be trimmed by Lessee so as to maintain a distance from the centerline of the nearest track of twenty-five (25) feet and if such vegetation is closer than twenty-five (25) feet from the centerline of the nearest track, Lessor, BRIGHTLINE or the Railway may trim or remove such vegetation so that no vegetation is within twenty-five (25) feet of the centerline of the nearest track at Lessee's expense. This restriction in no way limits the indemnification requirements set forth in this Lease. Also, no plants, shrubbery, trees or other vegetation of a hazardous or noxious nature that might produce injury to any person coming in contact with said plants, shrubbery, trees or other vegetation will be placed upon the Leased Premises, the ROW or any adjacent property by Lessee. The placement of any wells by Lessee on the Leased Property, the ROW or any adjacent property is strictly prohibited. 28. Notices Any notice, request or communication (a "Notice") to be given or to be served upon any party hereunder, in connection with this Lease, must be in writing and must be given by certified or registered mail and shall be deemed to have been given and received when a certified or registered letter, containing such Notice, properly addressed, with postage prepaid, is deposited in the U.S. Mail; or, if given otherwise than by certified or registered mail, it shall be deemed to have been given when delivered to and received by the party to whom it is addressed. Such Notices shall be addressed to the parties herein at the following addresses: TO LESSOR: Craig Olson, Vice President 7411 Fullerton Street, Suite 301 Jacksonville, Florida 32256 WITH A COPY 16 TO RAILWAY: General Counsel Florida East Coast Railway, L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, Florida 32256 TO LESSEE: [Insert Lessee's Name & Address] WITH A COPY TO: [Insert Name & Address, if required] Any Notice hereunder shall also be made or given to the extent required by Section 1 B hereof. 29. Governing Law This Lease shall be governed by the laws of the State of Florida. In the event any suit, action or proceeding is brought by either party with respect to this Lease, such action, suit or proceeding shall be brought in any federal or state court located in Duval County, Florida. 30. Cancel and Supersede As of the date of this Lease, this Lease supersedes that certain Lease Agreement by and between the parties hereto dated [Insert Date or N/A]. 31. Illegalily If any provision of this Lease shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 32. Security Deposit Upon the execution of this Lease by Lessee, and prior to the execution of this Lease by Lessor, Lessee shall remit to Lessor a security deposit in the amount of [Insert Deposit Amount] in cash or certified check or cashiers check (the "Security Deposit"). The Security Deposit represents security for the faithful performance and observance by Lessee of each and every term of this Lease. Lessor may apply all or part of the Security Deposit to any unpaid Rent as set forth in paragraph 3 of this Lease or any other charges due from Lessee under this Lease, or to cure any other default of Lessee. The Security Deposit shall not constitute liquidated damages. If Lessor uses any part of the Security Deposit, Lessee shall restore the Security Deposit to its full amount within ten (10) days after notice from Lessor. No interest shall accrue to or for the benefit of Lessee on the Security Deposit. Lessor shall not be required to keep the Security Deposit separate from its other accounts, and no trust relationship is created with respect to the Security Deposit. Lessor shall not be obligated to return the Security Deposit to Lessee upon the expirations or earlier termination of the Lease unless and until all of the following events occurs: (i) the payment in full of all Rent and other chargers due pursuant to the Lease and (ii) compliance with the terms and conditions of Sections 14 and 15 hereof including, without limitation, the repair of any and all damage to the Leased Premises. 17 33. Time is of the Essence. TIME IS OF THE ESSENCE OF THIS LEASE AND ALL PROVISIONS CONTAINED HEREIN. 34. Waiver of Trial by Jury. LESSOR AND LESSEE HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE. 35. Counterparts. This Lease may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties, it being understood that all parties need not sign the same counterpart. The parties agree that a scanned or electronically reproduced copy or image of this Lease shall be deemed an original. 18 Signed, sealed and delivered FEC ROW LLC A Florida Limited Liability Company in the presence of: Witness as to Lessor Witness as to Lessor Witness as to Lessee Print Name) Witness to Lessee (Print Name) _ W61 M. Title: Date of Execution: [NAME OF LESSEE] M. Title; (Print Name Date of Execution: L) EXHIBIT A LEGAL DESCRIPTION OF LEASED PREMISES 20 PA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MARTIN COUNTY, FLORIDA, et al., Plaintiffs, V. U.S. DEPT. OF TRANSPORTATION, et al., Defendants. Civil Action No. 1: 1 8-cv-00333-CRC JOINT STIPULATION OF DISMISSAL WITH PREJUDICE Pursuant to Federal Rule of Civil Procedure 41 (a)(1)(A)(ii), the Plaintiffs, Defendants, and Intervenor AAF Holdings LLC hereby stipulate to the dismissal of this action with prejudice, with each party to bear its own attorneys' fees and costs. Respectfully submitted on November _, 2018 /s/ Stephen M. Ryan Stephen M. Ryan (D.C. Bar No. 359009) The McDermott Building 500 North Capitol Street, N.W. Washington, D.C. 20001 Telephone: 202-756-8000 Email: sryan@mwe.com Attorneys for Plaintiffs Martin County and CARE FL /s/ Barbara M.R. Martin Barbara M.R. Martin United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20004 Telephone: (202) 305-0240 Fax: (202) 305-0506 Email: barbara.marvin@usdoj.gov Attorneys for Defendants /s/ Philip E. Karmel Philip E. Karmel (Dist. Ct. Bar No. NY0196) 1290 Avenue of the Americas New York, New York 10104-3300 Telephone: 212-541-2311 Email: pekarmel@bclplaw.com Attorneys for Plaintiffs Indian River County and Indian River County Emergency Services District /s/ Cynthia L. Taub Cynthia L. Taub (D.C. Bar No. 445906) Steptoe & Johnson LLP 1330 Connecticut Ave., NW Washington, D.C. 20036 Telephone: (202) 429-3000 ctaub@steptoe.com Attorneys for Intervenor AAF Holdings LLC RESOLUTION 2018- A RESOLUTION OF THE INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS AUTHORIZING THE EXECUTION OF THE SETTLEMENT AGREEMENT WITH BRIGHTLINE TRAINS, LLC AND AUTHORIZING THE COUNTY ATTORNEY TO MODIFY NON - SUBSTANTIVE TERMS OF THE SETTLEMENT AGREEMENT AND ACCEPT MODIFIED EXHIBITS, AS NEEDED, TO FINALIZE THE SETTLEMENT AGREEMENT PRIOR TO EXECUTION BY THE CHAIR. WHEREAS, on November 20, 2018, the Indian River County Board of County Commissioners (`BOCC") in a public meeting considered approval of a Settlement Agreement with Brightline Trains, LLC in the civil action styled Martin County, et al. v. U.S. Department of Transportation, et al., Case No. 1: 1 8-cv-00333-CRC, United States District Court for the District of Columbia (the "Federal Litigation"); and WHEREAS, the BOCC recognizes that it is in the best interest of Indian River County to resolve the Federal Litigation pursuant to the terms of the Settlement Agreement, which will, among other things, provide additional safety enhancements, as well as defray costs for road crossing maintenance for years to come. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA THAT: The Indian River County Board of County Commissioners, on behalf of Indian River County and the Indian River County Emergency Services District, hereby approves the Settlement Agreement with Brightline Trains, LLC in the Civil Action Martin County, et al. v. U.S. Department of Transportation, et al., Case No. 1:18-cv-00333-CRC, which is attached hereto and incorporated by reference; and 2. The Indian River County Board of County Commissioners, on behalf of Indian River County and the Indian River County Emergency Services District, hereby authorizes the County Attorney to make non -substantive changes to the Settlement Agreement as well as its Exhibits to ensure correctness and accuracy prior to execution by the Chair 3. The Chair is hereby authorized to execute the Settlement Agreement as well as any and all documents necessary and appropriate in connection with the Settlement Agreement. The foregoing resolution was moved for adoption by Commissioner , and seconded by Commissioner , and, upon being put to a vote, the vote was as follows: RESOLUTION 2018 - Commissioner Susan Adams Commissioner Joseph E. Flescher Commissioner Tim Zorc Commissioner Peter D. O'Bryan Commissioner Bob Solari The Chairman thereupon declared the resolution duly passed and adopted this 20'h day of November, 2018. ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller Deputy Clerk Approved as to form and legal sufficiency: L.'a Dylan Reingold, County Attorney BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA ME , Chairman DRAFT SETTLEMENT AGREEMENT This Settlement Agreement ("Settlement Agreement" or "Agreement") is made and entered into as of November _, 2018 (the "Effective Date"), by and between Martin County, Florida, a political subdivision of the State of Florida ("Martin"), Indian River County, Florida, a political subdivision of the State of Florida ("Indian River'), the Indian River County Emergency Services District, a dependent special services district ("Indian River ESD'), Citizens Against Rail Expansion in Florida, a non-profit group ("CARE"), and Brightline Trains LLC ("Brightline") (collectively, the "Parties"). RECITALS WHEREAS, Martin is a political subdivision of the State of Florida which is governed by a Board of County Commissioners (the "MARTINBCC"); WHEREAS, Indian River is a political subdivision of the State of Florida which is governed by a Board of County Commissioners (the "INDIANRIVERBCC"); WHEREAS, the Indian River ESD is a dependent special district which is administered by Indian River and is governed by the INDIANRIVERBCC sitting as the Board of Commissioners of the district; WHEREAS, CARE is a non-profit group organized under Florida law primarily consisting of community leaders, residents, and organizations in Martin, Indian River, and northern Palm Beach County, including the Town of Jupiter; WHEREAS, Brightline is a corporate entity tasked with developing and operating express passenger rail service between Miami and Orlando, Florida (the "Brightline Project"); WHEREAS, the bulk of Brightline's planned passenger service route, including the portion which will pass through Martin and Indian River, will use the Florida East Coast Railway LLC ("FECR') railroad right-of-way (the "FECR ROW"); WHEREAS, Martin has independent roadway crossing agreements with FECR, which are listed in Exhibit A (the "Existing Martin Crossing Agreements"); WHEREAS, Indian River has independent roadway crossing agreements with FECR, which are listed in Exhibit B (the "Existing Indian River Crossing Agreements"); WHEREAS, to accommodate Brightline's express passenger service, Brightline is upgrading the portion of the FECR ROW between Miami and Cocoa by, inter alfa, upgrading existing railroad ties and tracks, installing a second set of mainline tracks, improving roadway crossings, and installing and activating Positive Train Control systems; WHEREAS, Brightline has received an allocation of Private Activity Bonds ("PABs') from the United States Department of Transportation ("USDOT") in connection with construction of the Brightline Project; WHEREAS, the Florida Development Finance Corporation ("FDFC") has authorized issuance of the PABs; WHEREAS, Martin, Indian River, the Indian River ESD, and CARE have filed a Complaint challenging authorization ofthe PABs in the United States District Court for the District of Columbia in a case entitled Martin County, Florida, et. al. v. U.S. Department of Transportation, et al., Case No. 1: 1 8-cv-00333-CRC ("PABs Litigation"); and WHEREAS, Martin, Indian River, the Indian River ESD, CARE, and Brightline desire to settle their differences in order to avoid the time, expense, and uncertainty of further litigation. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and other good and valuable consideration the receipt and the sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Definitions and Recitals. The definitions and recitals above are incorporated herein by reference and made a substantive part of this Settlement Agreement. Martin Roadway Crossing Designs and Maintenance. (a) The Parties agree that there are 26 grade crossings within Martin where the FECR ROW intersects with an existing roadway, as listed in Exhibit A (the "Martin Crossings"). (b) The Parties further agree that Brightline is proposing modifications to 26 of the Martin Crossings as part of the Brightline Project (the "Martin Crossings to be Modified'). These modifications shall be paid for by Brightline. (c) For the Martin Crossings to be Modified, Brightline shall, at its own expense, install the safety and other improvements reflected in the designs and related documentation attached as Exhibit C-1 and C-2; provided that Brightline's payment for ROW sidewalk installation is limited to the sidewalks specified in Exhibit C-1. Those improvements include, inter glia: (i) the addition of exit gates at the crossings located as specified in Exhibit C- 1; (ii) the addition of Vehicle Presence Detection ("VPD') at the crossings located as specified in Exhibit C-1; and (iii) the addition of sidewalks at the crossings located as specified in Exhibit C- l. Martin accepts the improvements reflected in Exhibit C-1 and C-2. Should Martin desire the installation of additional safety or other improvements not reflected in Exhibit C -I and C-2, those additional improvements shall be subject to the reasonable approval of FECR and Brightline. Martin shall be solely responsible for the cost of design and construction of such additional improvements, and the parties shall coordinate in good faith on the design and construction of such improvements, so as not to delay the design or construction of the Brightline Project. In the event that Martin or Brightline elects to seek federal, state, or other grant money to defray the cost of any improvement under this paragraph, the other party shall coordinate in good faith with such efforts. Likewise, if Martin and/or Brightline is successful in obtaining grant money for any improvement the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. For example, if Martin were to obtain a grant in the amount of $100,000 for the installation of improvements the cost of which is to be shared on an equal basis, Martin's and Brightline's respective payment obligations for those improvements would be reduced by $50,000 each. -2- (d) Of the Martin Crossings to be Modified, 19 involve roadways within Martin's permitting jurisdiction. Those 19 crossings are listed in Exhibit A. For those 19 Martin Crossings, Martin has requested that Brightline install pavement markings and signage outside the FECR ROW at Brightline's expense and Brightline agrees to do so. Martin agrees to maintain the pavement markings and signage at its own expense. (e) The parties acknowledge and agree that the additional improvements being made pursuant to this paragraph 2 are being made as an accommodation in furtherance of settlement and shall not be deemed an admission that the improvements are necessary or advisable at any particular location. Nor shall they be deemed precedent that similar improvements are necessary or advisable at any other location. (1) Prior to any installation of pavement markings and signage within Martin's right-of-way, Brightline shall apply for and obtain a Martin County Right Of Way Use Permit. Martin agrees that Brightline may use a single Right Of Way Use Permit Application for all pavement markings and signage, a copy of which is attached hereto as Exhibit E-1. Such single Application shall include the required information for each of the 19 roadway crossings within Martin's permitting jurisdiction. Martin further agrees that, upon submission of the completed Right of Way Use Permit Application, the Right of Way Use Permit will be issued. If Martin fails to issue the Right of Way Use Permit as required herein, Brightline shall have no obligation under this Settlement Agreement to install any improvement, pavement marking, or signage outside the FECR ROW. Martin agrees to waive the security requirement for such permit. Such waiver is predicated on Brightline's agreement to return Martin's right-of-way in at least the same condition as before the commencement of such installation, and Brightline's failure to do so shall constitute a breach of this Agreement. (g) Martin agrees to approve Brightline's maintenance of traffic plans for the foregoing crossing work, provided such plans are in compliance with federal, state, and local maintenance of traffic requirements. (h) Martin shall execute amendments to the Existing Martin Crossing Agreements, in the form attached as Exhibit F. The amendments shall not alter Martin'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 "14 -year period" or the "14 years"), Martin and Brightline shall share responsibility for paying Martin's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Martin shall pay up to $251,000 of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Martin does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, Brightline shall have no responsibility for paying any portion of such costs for the year in question. For example, if Martin were to receive a total of $200,000 in invoices from FECR in a particular calendar year, Martin would be obligated to pay those invoices in full; but if Martin were to receive a total of $300,000 in invoices from FECR in a particular calendar year, Martin would only be obligated to pay $251,000, and upon such payment, Brightline would be obligated to pay the balance due — $49,000. The amendments shall also provide that, for each of the fust three years after the 14 -year period concludes, Martin and Brightline shall share responsibility for paying Martin's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Martin shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and Brightline shall pay the balance of such costs; provided, however, that if Martin 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. Martin's agreement to pay these averaged annual invoiced costs shall not be deemed an admission that Martin agrees that previous FECR invoices were accurate or due and payable. If Martin reasonably disputes an FECR invoice, Brightline agrees Martin is not in breach of this Agreement. The amendments shall further provide that Martin shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and that: (i) Martin shall not indemnify, defend, or hold harmless Brightline for any reason whatsoever in connection with the Existing Martin Crossing Agreements, as amended, except as otherwise provided in this Agreement; (ii) Martin shall not add Brightline onto its insurance for any reason whatsoever in connection with the Existing Martin Crossing Agreements, as amended; and (iii) Martin shall not consent to waive its sovereign immunity for any action that involves Brightline. Martin acknowledges that sovereign immunity does not apply for alleged or actual breaches of express, written agreements and amendments thereto entered into by Martin that are duly authorized by its Board of County Commissioners, including this Agreement and the Existing Martin Crossing Agreements. (i) The maintenance fees for the North County Line crossing are split between Martin and St. Lucie County, and the maintenance fees for the South County Line crossing are split between Martin and Palm Beach County. With respect to these specific crossings, this Agreement only applies to Martin's share of the respective maintenance fees. 0) The municipalities within Martin that currently have independent roadway crossing agreements with FECR, and the adjacent Town of Jupiter which also has independent roadway crossing agreements with FECR, shall be afforded the opportunity to execute amendments to those agreements in the form attached as Exhibit G. The amendments shall not alter the municipality's rights or obligations as to FECR, except that during the 14 -year period, the municipality and Brightline shall share responsibility for paying the municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: the municipality 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 municipality 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 municipality'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. Martin shall not be deemed in breach of this Agreement due to any action, inaction, or -3- -4- omission by a municipality. The municipality shall also be required, as a condition of obtaining the benefit of such amendments, to execute a separate agreement with Brightline in the form attached as Exhibit H, in which the municipality shall make the commitments reflected in paragraph 11 below. The Town of Jupiter shall also be required, as part of such separate agreement with Brightline, to agree to the United States Coast Guard operating rule for the Loxahatchee River Bridge reflected in paragraph 7(e) below, and to make the commitments reflected in paragraph 7(f) below. The amendments shall further provide that the municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. (k) Based on Brightline's analysis of the Federal Railroad Administration's ("FRA") Quiet Zone calculator, Brightline believes that, in view of the crossing improvements identified in Exhibits C-1 and C-2, Martin will qualify with the FRA as a Quiet Zone so long as Martin, in its entirety, applies for a Quiet Zone designation. Based on Brightline's analysis of the FRA Quiet Zone calculator, Brightline further believes that, in view of the crossing improvements to be made pursuant to Brightline's separate agreement with the Palm Beach County Transportation Planning Agency, the area within Palm Beach County north of West Palm Beach will also qualify with the FRA as a Quiet Zone so long as that area, in its entirety, applies for a Quiet Zone designation. Brightline agrees to support the applications for Quiet Zone designations by Martin, any municipality within Martin, Palm Beach County, and/or any municipality within Palm Beach County north of West Palm Beach that qualify under FRA's Quiet Zone calculator for a Quiet Zone designation. Indian River Roadway Crossin¢ Designs and Maintenance. (a) The Parties agree that there are 32 grade crossings within Indian River where the FECR ROW intersects with an existing roadway, as listed in Exhibit B (the "Indian River Crossings'l. (b) The Parties further agree that Brightline is proposing modifications to 32 of the Indian River Crossings as part of the Brightline Project (the "Indian River Crossings to be Modified"). These modifications shall be paid for by Brightline. (c) For the Indian River Crossings to be Modified, Brightline shall, at its own expense, install the safety and other improvements reflected in the designs and related documentation attached as Exhibit D-1 and D-2; provided that Brightline's payment for ROW sidewalk installation is limited to the sidewalks specified in Exhibit D-1. Those improvements include, inter alfa: (i) the addition of exit gates at the crossings located as specified in Exhibit D- 1; (ii) the addition of V PD at the crossings located as specified in Exhibit D-1; and (iii) the addition of sidewalks at the crossings located as specified in Exhibit D -l. Indian River accepts the improvements reflected in Exhibit D-1 and D-2. Should Indian River desire the installation of additional safety or other improvements not reflected in Exhibit D-1 and D-2, those additional improvements shall be subject to the reasonable approval of FECR and Brightline. Indian River shall be solely responsible for the cost of design and construction of such additional improvements, and the parties shall coordinate in good faith on the design and construction of such improvements, so as not to delay the design or construction of the Brightline Project. Indian River shall pay its share of such costs to Brightline within sixty (60) days after Brightline provides Indian River proof of payment to contractors. In the event that Indian River or Brightline elects to seek federal, state, or other grant money to defray the cost of any improvement under this paragraph, the other party shall coordinate in good faith with such efforts. Likewise, if Indian River and/or Brightline is successful in obtaining grant money for any improvement the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. For example, if Indian River were to obtain a grant in the amount of $100,000 for the installation of improvements the cost of which is to be shared on an equal basis, Indian River's and Brightline's respective payment obligations for those improvements would be reduced by $50,000 each. (d) Of the Indian River Crossings to be modified, 21 involve roadways within Indian River's permitting jurisdiction. These 21 crossings are listed in Exhibit B. For those 21 crossings and those crossings located in the City of Sebastian and at Hawk's Nest Road, Indian River has requested that Brightline install certain pavement markings, signage and other improvements outside the FECR ROW as specified in Exhibit D-1 at Brightline's expense, and Brightline agrees to do so. Indian River agrees to maintain the pavement markings, signage and other improvements outside the FECR ROW at its own expense. (e) The parties acknowledge and agree that the additional improvements being made pursuant to this paragraph 3 are being made as an accommodation in furtherance of settlement and shall not be deemed an admission that the improvements are necessary or advisable at any particular location. Nor shall they be deemed precedent that similar improvements are necessary or advisable at any other location. (f) Prior to any construction within Indian River's right -0f -way, Brightline shall apply for and obtain an Indian River right-of-way permit. Indian River agrees that Brightline may use a single application for all such construction, a copy of which is attached hereto as Exhibit E-2. Such single application shall include the required information for each of the 21 roadway crossings within Indian River's permitting jurisdiction. Indian River further agrees that, upon submission of the completed application, the right-of-way permit will be issued. If Indian River fails to issue the right-of-way permit as required herein, Brightline shall have no obligation under this Agreement to install any improvement, pavement marking, or signage outside the FECR ROW. Indian River agrees to waive the security requirement for such permit. Such waiver is predicated on Brightline's agreement to return Indian River's right-of-way in at least the same condition as before the commencement of such installation, and Brightline's failure to do so shall constitute a breach of this Agreement. (g) Indian River agrees to approve Brightline's maintenance of traffic plans for the foregoing crossing work, provided such plans are in compliance with federal, state, and local maintenance of traffic requirements. (h) Indian River shall execute amendments to the Existing Indian River Crossing Agreements, in the form attached as Exhibit F. The amendments shall not alter Indian River'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, Indian River and Brightline shall share responsibility for paying Indian River's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Indian River shall pay up to $235,500 of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Indian River does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, Brightline shall have no -5- -6- responsibility for paying any portion of such costs for the year in question. For example, if Indian River were to receive a total of $200,000 in invoices from FECR in a particular calendar year, Indian River would be obligated to pay those invoices in full; but if Indian River were to receive a total of $300,000 in invoices from FECR in a particular calendar year, Indian River would only be obligated to pay $235,500, and upon such payment, Brightline would be obligated to pay the balance due — $64,500. The amendments shall also provide that, for each of the fust three years after the 14 -year period concludes, Indian River and Brightline shall share responsibility for paying Indian River's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Indian River shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and Brightline shall pay the balance of such costs; provided, however, that if Indian River 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. Indian Rivers agreement to pay these averaged annual invoiced costs shall not be deemed an admission that Indian River agrees that previous FECR invoices were accurate or due and payable. If Indian River reasonably disputes an FECR invoice, Brightline agrees Indian River is not in breach of this Agreement. The amendments shall further provide that Indian River shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and that: (i) Indian River shall not indemnify, defend, or hold harmless Brightline for any reason whatsoever in connection with the Existing Indian River Crossing Agreements, as amended, except as otherwise provided in this Agreement; (ii) Indian River shall not add Brightline onto its insurance for any reason whatsoever in connection with the Existing Indian River Crossing Agreements, as amended; and (iii) Indian River shall not consent to waive its sovereign immunity for any action that involves Brightline. Indian River acknowledges that sovereign immunity does not apply for alleged or actual breaches of express, written agreements and amendments thereto entered into by Indian River that are duly authorized by its Board of County Commissioners, including this Agreement and the Crossing Agreements. (i) The municipalities within Indian River that currently have independent roadway crossing agreements with FECR shall be afforded the opportunity to execute amendments to those agreements in the form attached as Exhibit G. 'Be amendments shall not alter the municipality's rights or obligations as to FECR, except that during the 14 -year period, the municipality and Brightline shall share responsibility for paying the municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: the municipality 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 municipality 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 municipality'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. Indian River shall not be deemed in breach of this Agreement due to any action, inaction, or omission by a municipality. The municipality shall also be required, as a condition of obtaining the benefit of such amendments, to execute a separate agreement with Brightline in the form attached as Exhibit H, in which the municipality shall make the commitments reflected in paragraph 11 below. The amendments shall further provide that the municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. 0) Based on Brightline's analysis of the FRA's Quiet Zone calculator, Brightline believes that, in view of the crossing improvements identified in Exhibits D-1 and D-2, Indian River will qualify with the FRA as a Quiet Zone so long as Indian River, in its entirety, applies for a Quiet Zone designation. Brightline agrees to support the applications for Quiet Zone designations by Indian River and/or any municipality within Indian River that qualify under FRA's Quiet Zone calculator for a Quiet Zone designation. Martin Aerial Pedestrian Bridge. (a) Subject to the concurrence of FECR, Brightline agrees to Martin's construction of an aerial pedestrian bridge over the FECR ROW at a location in Stuart, Florida, mutually agreeable to Martin and Brightline. (b) Martin agrees to execute FECR's standard form Aerial Easement Agreement as attached hereto as Exhibit 1, pursuant to which Martin will pay FECR a onetime aerial easement fee in an amount not to exceed $47,600. The grant of the aerial easement shall be subject to compliance with FECR and Brightline engineering requirements and approvals. Martin agrees that the indemnity and insurance obligations under FECR's standard form Aerial Easement Agreement shall be modified to extend to both FECR and Brightline. (c) Construction. Martin shall be responsible for the actual construction of the aerial pedestrian bridge and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (d) Construction Costs. Martin and Brightline shall share responsibility for the cost of constructing the aerial pedestrian bridge, on an equal basis. Martin and Brightline shall each endeavor to obtain federal, state, and/or other grant money for the construction of the bridge, and if either or both is successful, their payment obligations shall be reduced on an equal basis. For example, if Martin were to obtain a grant in the amount of $500,000, Martin's and Brightline's respective payment obligations would be reduced by $250,000 each. Brightline shall pay its share of such construction costs to Martin within sixty (60) days after Martin provides Brightline proof of payment to contractors. (e) Maintenance. Martin shall be solely responsible for the actual maintenance of the aerial pedestrian bridge and the cost of maintenance and replacement of the aerial pedestrian bridge, as needed. -7- -8- Martin Fencing. (a) In accordance with FRA requirements and the Final Environmental Impact Statement for the Brightline Project ("FEIS"), Brightline shall perform a Hazard Analysis within the timeframe provided by 49 C.F.R. § 270. That Hazard Analysis shall include an evaluation designed to determine the locations within Martin where fencing of the FECR ROW is required or recommended for safety. Other than Brightline, none of the parties to this Agreement shall have any role in performing the Hazard Analysis. Brightline shall not be obligated to provide Martin a copy of the Hazard Analysis in view of 49 C.F.R. § 270 which provides that the Analysis is confidential and exempt from disclosure. Brightline shall instead provide the other parties with a list of the locations within Martin where fencing of the FECR ROW was determined to be required or recommended for safety. Brightline shall install and maintain fencing in such locations, at its own expense. Martin shall have no responsibility, including but not limited to financial or liability, pertaining to the installation or maintenance such fencing. (b) Subject to the concurrence of FECR, Brightline agrees to Martin's installation of additional fencing within the FECR ROW, at the locations specified in Exhibit J. For such additional fencing, Martin agrees to execute FECR's standard form Fencing Lease Agreement attached hereto as Exhibit L, pursuant to which Martin will pay FECR an annual lease fee in an amount not to exceed 75 cents per square foot of leased area. The grant of the lease shall be subject to compliance with FECR and Brightline engineering requirements and approvals which shall not be unreasonably denied. Martin agrees that the indemnity and insurance obligations under FECR's standard form Fencing Lease Agreement shall be modified to extend to both FECR and Brightline. Brightline shall be responsible for paying the initial cost of the additional fencing and the initial cost of installing such fencing, up to $1 million ($1,000,000). Martin shall be responsible for the balance of such costs, if any, as well as the cost of maintaining and replacing the additional fencing, as needed. Martin shall be responsible for the actual installation and ongoing maintenance of the additional fencing, and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (c) In the event that Martin or Brightline elects to seek federal, state, or other grant money to defray the cost of any fencing, installation, or maintenance under this paragraph 5, the other party shall cooperate in such efforts. (d) The fencing to be installed shall be Florida Department of Transportation "Type B" fencing. Indian River Fencing. (a) In accordance with FRA requirements and the FEIS, Brightline shall perform a Hazard Analysis within the timeframe provided by 49 C.F.R. § 270. That Hazard Analysis shall include an evaluation designed to determine the locations within Indian River where fencing of the FECR ROW is required or recommended for safety. Other than Brightline, none of the parties to this Agreement shall have any role in performing the Hazard Analysis. Brightline shall not be obligated to provide Indian River a copy of the Hazard Analysis in view of 49 C.F.R. § 270 which provides that the Analysis is confidential and exempt from disclosure. Brightline shall instead provide the other parties with a list of the locations within Indian River where fencing of the FECR ROW was determined to be required or recommended for safety. Brightline shall install and maintain fencing in such locations, at its own expense. Indian River shall have no responsibility, including but not limited to financial or liability, pertaining to the installation or maintenance of such fencing. (b) Subject to the concurrence of FECR, Brightline agrees to Indian River's installation of additional fencing within the FECR ROW, at the locations specified in Exhibit K. For such additional fencing, Indian River agrees to execute FECR's standard form Fencing Lease Agreement attached hereto as Exhibit L, pursuant to which Indian River will pay FECR an annual lease fee in an amount not to exceed 75 cents per square foot of leased area. The grant of the lease shall be subject to compliance with FECR and Brightline engineering requirements and approvals which shall not be unreasonably denied. Indian River agrees that the indemnity and insurance obligations under FECR's standard form Fencing Lease Agreement shall be modified to extend to both FECR and Brightline. Brightline shall be responsible for paying the initial cost of the additional fencing and the initial cost of installing such fencing, up to $I million ($1,000,000). Indian River shall be responsible for the balance of such costs, if any, as well as the cost of maintaining and replacing the additional fencing, as needed. Indian River shall be responsible for the actual installation and ongoing maintenance of the additional fencing, and any liability associated therewith; provided, however, that the method and manner of construction and maintenance (but not any bidding process including awards of bids) shall be subject to the approval of FECR and Brightline, to ensure non-interference with rail or fiber optic operations. (c) In the event that Indian River or Brightline elects to seek federal, state, or other grant money to defray the cost of any fencing, installation, or maintenance under this paragraph 6, the other party shall cooperate in such efforts. (d) The fencing to be installed shall be Florida Department of Transportation "Type B" fencing. The fencing shall be galvanized with black or dark green coating. St. Lucie River Bridge Modifications. (a) Subject to the concurrence of FECR and the United States Coast Guard ("USCG"), and if the conditions expressed in this paragraph are met, Brightline agrees to incur the expense of raising the low chord elevation of one (1) roughly fifty-five (55) foot span of the St. Lucie River Bridge by between twelve (12) to twenty-four (24) inches above mean high water level relative to the current low chord height as part of Brightline's forthcoming repairs to the St. Lucie River Bridge. Within ninety (90) days of the Effective Date, Brightline shall commission engineering plans for such modifications in order to determine how high of a raise can reasonably and realistically be achieved (the "Proposed Raise'). Within ninety (90) days thereafter, Brightline shall commission an analysis designed to determine the percentage of boat traffic that the Proposed Raise will allow to pass under the St. Lucie River Bridge while it is in a closed position. The analysis will be similar to that previously commissioned by the Town of Jupiter with respect to the anticipated raise of the low chord elevation of certain spans of the Loxahatchee River Bridge. Brightline shall be solely responsible for the cost of the referenced engineering plans and the cost of the analysis of the impact of the Proposed Raise on boat traffic. If the analysis determines that the Proposed Raise will permit less than 35% of boat traffic to pass under the St. Lucie River Bridge while it is in a closed position, Brightline shall not be obligated to 9 -10- proceed with the Proposed Raise. If the analysis determines that the Proposed Raise will permit at least 35%ofboat traffic to pass under the St. Lucie River Bridge while it is in a closed position, Brightline shall proceed with the Proposed Raise. The parties agree that Martin is not responsible for costs of any modifications to the St. Lucie River Bridge as part of this Agreement or as part of Brightline's forthcoming repairs to St Lucie River Bridge. (b) Subject to the concurrence of FECR and USCG, Brightline agrees to a USCG operating rule that requires a bridge monitor to be located at or near the St. Lucie River Bridge. The bridge monitor requirement maybe satisfied through use of the Florida Department of Transportation bridge monitor at the nearby Roosevelt Bridge. The parties agree that Martin is not responsible for the costs of the bridge monitor, FECR and/or Brightline shall bear those costs. (c) Subject to FECR's and USCG's concurrence, Brightline agrees to a USCG operating rule that requires the St. Lucie River Bridge be open to marine traffic at least fifteen (15) consecutive minutes at a set time each hour between the hours of 6:00 a.m. and 10:00 p.m., and open to rail and marine traffic, as applicable, on an as needed basis during the remaining times, with the openings and closures to be equally divided between the rail and the marine traffic during each of the following four (4) hour periods: 6:00 a.m. to 10:00 am., 10:00 a.m. to 2:00 p.m., 2:00 p.m. to 6:00 p.m., and 6:00 p.m. to 10:00 p.m. (d) The parties agree not to seek any additional operating rules for the St. Lucie River Bridge for a period of five (5) years from the date Brightline commences passenger revenue operations between West Palm Beach and Orlando. Notwithstanding the foregoing, if the USCG does not agree to an operating rule consistent with paragraph 7(c) within twelve (12) months of the Effective Date, Martin or CARE may seek operating rules consistent with this paragraph from State and Federal government authorities immediately. (e) Subject to FECR's and USCG's concurrence, Brightline agrees to a USCG operating rule that requires the Loxahatchee River Bridge be open to rail and marine traffic, as applicable, on an as needed basis, with openings at least once per hour and each closure lasting no more than thirty (30) minutes. Brightline agrees to develop a set schedule for closures of the Loxahatchee River Bridge and provide public access to that schedule and any updates thereto in an intemet-accessible format. Brightline further agrees to make best efforts to provide a consistent time of opening each hour for the Loxahatchee River Bridge, similar but not identical to the St Lucie River Bridge. (f) The parties agree not to seek any additional operating rules for the Loxahatchee River Bridge for a period of five (5) years from the date Brightline commences passenger revenue operations between West Palm Beach and Orlando. Notwithstanding the foregoing, if the USCG does not agree to an operating rule consistent with paragraph 7(c) within twelve (12) months of the Effective Date, CARE may seek operating rules consistent with this paragraph from State and Federal government authorities immediately. Brightline Station in the Treasure Coast Within 5 years of commencement of Brightline's passenger revenue train service from West Palm Beach to Orlando, Brightline agrees to build at least one train station C'Station") in the Treasure Coast, subject to receipt of all applicable governmental permits and approvals with respect thereto. The Station will be located either in Martin, St. Lucie, or Man River County. Following completion of the Station, at least two northbound and two southbound Brightline trains will stop at the Station each day. Construction of the Station is subject to the payment of 50% of the Station construction cost by the County and/or municipality in which the Station is located, if such payment is requested by Brightline. In the event the applicable County and/or municipality or Brightline elects to seek federal, state, or other grant money to defray the cost of construction of such Station(s) under this paragraph, the other party shall coordinate in good faith with such efforts. Likewise, if a party is successful in obtaining grant money for any construction, the cost of which is to be shared on an equal basis, their payment obligations shall be reduced on an equal basis. The parties agree that such construction costs shall be reduced proportionally upon the granting of federal or state funding for such construction. Safety and Accident Disclosure Practices The parties acknowledge that collisions between Brightline trains and cars or pedestrians in Martin and Indian River may occur despite efforts to prevent such accidents. Brightline agrees to promptly notify first responders in the impacted county or municipality of any such accidents. Brightline shall also provide the impacted county or municipality with a copy of any police and/or medical examiner's report(s) relating to such accidents, upon receipt thereof. Brightline further agrees to meet with Martin and Indian River first responders and engineering employees no less than annually to review all accidents in the Counties from the preceding year and jointly evaluate if additional actions are necessary to prevent similar accidents. 10. Dismissal of PABs Litigation. On or before November 26, 2018, Martin, Indian River, the Indian River ESD, and CARE shall file in the United States District Court for the District of Columbia Case No. 1: 1 8-cv- 00333-CRC a Joint Stipulation of Dismissal With Prejudice in the form attached as Exhibit M, with each party to bear its own attorneys' fees and costs. 11. Commitments of Martin. Indian River. the Indian River ESD. and CARE Regarding the Brightline Project (a) Martin, Indian River, the Indian River ESD, and CARE each hereby agrees that it will not oppose or challenge, or encourage others to oppose or challenge, any pending or future federal, state, or local approval, permit, or authorization relating to the Brightline Project, or the financing of the Brightline Project, or seek any further state, federal or local environmental or other governmental review with respect to the improvements that Brightline is committing to make in this Agreement, during the period of construction and the first five (5) years of Brightline passenger revenue operations between West Palm Beach and Orlando, including but not be limited to any approval, permit, or authorization issued by USDOT, the FRA, the U.S. Army Corps of Engineers, the USCG, the Florida Department of Transportation, the St. Johns River Water Management District, and the South Florida Water Management District, as well as the FEIS issued for the Brightline Project and any other NEPA, NHPA, or related project review/consultation documents. -II - -12- (b) Martin hereby acknowledges and agrees that it has evaluated the work currently proposed to be done within Martin as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Martin permitting requirements, except for the Floodplain Approval that is required for any work within identified Special Flood Hazard Areas in Martin, including bridges. Brightline believes the Floodplain Approval requirement is subject to federal preemption and is therefore inapplicable, but it has agreed to treat the requirement as applicable solely for purposes of this Agreement. Brightline shall submit a No -Rise Certification, signed and sealed by a professional engineer licensed in the state of Florida, prior to any work commencing on a railroad bridge, not including the St. Lucie River Bridge. Brightline agrees to provide Martin any and all hydraulic analysis or models associated with the No -Rise Certification. Martin agrees to issue a Floodplain Approval for the bridge work within ten (10) business days after receipt of each No -Rise Certification(s). (c) Indian River also acknowledges and agrees that it has evaluated the work currently proposed to be done within Indian River as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Indian River permitting requirements. (d) Martin and Indian River shall not seek to impose any county or local approval or permitting requirements with respect to the work currently proposed to be done within the FECR ROW. (e) During the period of construction and the fust three years of Brightline passenger revenue operations between West Palm Beach and Orlando, Martin, Indian River, the Indian River ESD, and CARE will not pass any resolution or adopt any other official act that publicly supports or actively encourages third parties to support any federal or state legislation, or new County laws or regulations that would directly and adversely impact the Brightline Project (f) Martin, Indian River, the Indian River ESD, and CARE will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal, state, county, or local laws or regulations that would directly and adversely impact Brightline's ability to comply with any term of this Agreement or vary any commitment made under this Agreement. 12. Notice and Opportunity to Cure. In the event that a Party alleges another Party to be in material breach of this Agreement, the Party alleging the material breach shall provide the other Party with written notice identifying with specificity the date and location of the perceived material breach and the provision of the Agreement breached ("Cure Notice"). The Party receiving such Cure Notice shall have thirty (30) days from the time it receives the Cure Notice (the "Cure Period") to either (a) cure the alleged material breach and respond in writing, describing what remedial action has been taken, or (b) respond in writing, explaining why no breach has occurred During the Cure Period, and afterward, the Parties shall cooperate in good faith to resolve the alleged material breach. If the Party alleged to have materially breached this Agreement cures or otherwise satisfactorily responds to the alleged material breach within the Cure Period, the Party alleging the material breach shall not file a lawsuit or take other action predicated upon the alleged material breach. If the Party alleged to have materially breached the Agreement does not cure or satisfactorily respond to the alleged material breach within the Cure Period, the other Party shall be entitled to file suit to cure the alleged material breach and seek to terminate this Agreement and/or the contemplated amendments to the Existing Martin Crossing Agreements and the Existing Indian River Crossing Agreements. 13. Releases. (a) Martin, Indian River, the Indian River ESD, and CARE each release, acquit, and forever discharge Brightline, and its present and former parent entities, subsidiaries, affiliates, successors, assigns, directors, officers, employees, agents, representatives, and insurers, from all claims, causes of action, demands, debts, liabilities, and obligations, of every name and nature, known or unknown, asserted or unasserted, accrued or unaccrued, both at law or in equity, from the beginning of time to the Effective Date. (b) Brightline, on behalf of itself and its present and former parent entities, subsidiaries, affiliates, successors, and assigns, hereby releases, acquits, and forever discharges Martin, Indian River, the Indian River ESD, and CARE, and their present and former elected officials, employees, agents, representatives, and insurers, from all claims, causes of action, demands, debts, liabilities, and obligations, of every name and nature, known or unknown, asserted or unasserted, accrued or unaccmed, both at law or in equity, from the beginning of time to the Effective Date. (c) The foregoing releases are intended to be given the broadest possible interpretation, but shall not eliminate any obligations arising under this Settlement Agreement. 14. Binding Effect This Settlement Agreement is final and binding on the Parties, including their heirs, successors, and future assigns. 15. No Assignment. Each Party acknowledges and agrees that it has not assigned, transferred, conveyed, or encumbered any claim, debt, liability, or obligations released herein. 16. Compromise. This Settlement Agreement is made in compromise of a dispute. Nothing herein shall be construed or deemed an admission of liability or wrongdoing. 17. Entire Agreement This Settlement Agreement contains the entire agreement of the Parties, and supersedes any and all prior negotiations, representations, understandings, and agreements, whether oral or in writing, with respect to the subject matter hereof. 18. Severability. In the event that any provision of this Agreement shall at any time contravene, in whole or part, any applicable law, ruling or regulation, then such provision shall remain in effect only to the extent permitted, and the remaining provisions hereof shall remain in full force and effect. 19. Modification. This Settlement Agreement may not be amended, modified, released, discharged, or otherwise terminated, in whole or part, except by an instrument in writing signed by authorized representatives of the parties hereto. 20. Construction. This Settlement Agreement was drafted by counsel for the Parties and shall not be construed more strictly against any Party on the ground that it was the drafter. _13- -14- 21. Governing Law: Attorneys' Fees. This Settlement Agreement shall be construed and the legal relations between the Parties shall be determined in accordance with Florida law. In any litigation or other legal proceeding arising out of or related to this Settlement Agreement, both parties agree to waive claims for attorneys' fees and costs. 22. Waiver. Each Party acknowledges and agrees that it has had the opportunity to consult with counsel of its choice in deciding whether to enter this Settlement Agreement. Each Party further acknowledges that it was not fraudulently induced, coerced, or intimidated to sign this Settlement Agreement, and agrees not to seek to upset this Settlement Agreement by reason of any fact or matter, including but not limited to the discovery of any claim or defense not presently known to it. Each Party affirmatively waives and releases any claim that it has been misled or fraudulently induced to enter this Settlement Agreement. 23. Authority. Each Party represents and warrants that it is authorized to enter this Settlement Agreement, and that the individual executing this Agreement on its behalf has the legal authority to do so. The MARTINBCC's resolution, the INDIANRIVERBCC's and Indian River ESD Board's resolution, and the CARE Board's resolution authorizing the execution of this Settlement Agreement are attached hereto as Exhibits N through P, respectively. The Brightline resolution authorizing the execution ofthis Settlement Agreement is attached hereto as Exhibit Q. 24. Countemarts. This Agreement may be executed in counterparts, by email or facsimile, each of which shall be deemed an original but all of which shall constitute one instrument. 25. Venue. Venue for disputes arising out of or relating to this Settlement Agreement shall be in the U.S. District Court for the Southern District of Florida, Fort Pierce Division, or state court in St. Lucie County, Florida. 26. Conflicts. If there is a conflict between the terms of this Agreement and the terms within any of the Exhibits attached hereto, the terms of this Agreement shall control and prevail. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have set their hands and seals to this instrument as of the Effective Date above. ACCEPTANCE BY MARTIN COUNTY MARTIN COUNTY, a Political Subdivision of the State of Florida By: Chairman, Board of County Commissioners ACCEPTANCE BY INDIAN RIVER COUNTY INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida By: Chairman Board of County Commissioners -15- -16- ATTESTED: By: Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Sarah Woods County Attorney ATTESTED: By: Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Dylan Reingold County Attorney ACCEPTANCE BY INDIAN RIVER COUNTY EMERGENCY SERVICES DISTRICT INDIAN RIVER COUNTY EMERGENCY SERVICES DISTRICT, a dependent special district of Indian River County By: Chairman, Board of County Commissioners ATTESTED: By: Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Dylan Reingold County Attorney ACCEPTANCE BY CITIZENS AGAINST RAIL EXPANSION IN FLORIDA CITIZENS AGAINST RAIL EXPANSION ATTESTED: IN FLORIDA, By: APPROVED AS TO FORM AND CORRECTNESS: By: Brent Hanlon Chairman ACCEPTANCE BY BRIGHTLINE TRAINS LLC BRIGHTLINE TRAINS LLC, a Delaware limited liability company By: Patrick Goddard President -17- -18- ATTESTED: By: Myles L. Tobin, Esq. General Counsel Settlement Agreement Exhibits —11/20/18 Ex. A List of Existing Martin Crossing Agreements City Crossing Name Ex. B List of Existing Indian River Crossing Agreements Sebastian Roseland Or (SR 514) - 212+2991' Ex. C-1 Schedule of Martin Additional Improvements Sebastian CR 512 Westbound, Sebastian Blvd W - 214+4375' Ex. C-2 Martin Crossing Plans Sebastian Fellsmere Rd (SR 512 EB), Sebastian Blvd E - 215+315' Ex. D-1 Schedule of Indian River Additional Improvements Sebastian Old Dixie Hwy - 216+20' Ex. D-2 Indian River Crossing Plans Sebastian 99th St / Vickers Rd - 217+3226' Ex. E -I Martin ROW Permit Application winter Beach 85th St, Wabasso Rd, 510 - 219+3057 Ex. E-2 Indian River ROW Permit Application Winter Beach 77th St, Hobart Rd - 220+3689' Ex. F County Crossing Amendment Winter Beach 69th St - North Winter Beach - 2121+4217 Ex. G Municipality Crossing Amendment Winter Beach 65th St, South Winter Beach Rd - 222+1704' Ex. H Municipality Agreement Gifford 53rd St - 223+4730' Ex. I FECR Aerial Easement Agreement Gifford 49th St - 224+2197 Ex. J Martin Fencing Locations Gifford 45th St - 224+4945' Ex. K Indian River Fencing Locations Gifford 43rd St -225+632' Ex. L FECR Fencing Lease Gifford 41st St (CR 630) - 225+2,418' Ex. M it. Stip. Of Dismissal Vero Beach 16th St, 17th St - 228+118' Ex. N Martin BCC Resolution Oslo 12th St - 228+3486 Ex. O Indian River BCC & ESD Resolution Oslo Glendale Rd - 229+983' Ex. P CARE Resolution Oslo 4th St, Indian River Blvd - 229+3982' Ex.Q BL Resolution Oslo 1stSt-230+76T Oslo Oslo Rd (SR 606), 9th Ln SW - 231+1651' Oslo Highland Dr SE, 20th Place SW - 232+4523' Ind i an River City/Location County Crossing Name Crossing Agreement Holder Sebastian Main St - FEC Sebastian Schumann Dr CITY OF SEBASTIAN Sebastian Barber St CITY OF SEBASTIAN Vero Beach 32nd St, Aviation Blvd CITY OF VERO BEACH Vero Beach 26th St CITY OF VERO BEACH Vero Beach 14th Ave CITY OF VERO BEACH Vero Beach 23rd St CITY OF VERO BEACH Vero Beach 21st St, SR 60 East CITY OF VERO BEACH Vero Beach 20th St, SR 60 West FDOT Vero Beach 19th PI FDOT Gifford Hawks Nest Rd, Golf Club Entrance O br9ghb­ hiffiwiiim E-Z INDIAN RIVER COUNTY RIGHT-OF-WAY REVIEW/PERMIT APPLICATION R.O.W. PERMIT NO. NAML CONTRACTOR NAME EMERGENCY PHONE NO. (REQUIRED( ADDRESS OFFICE PHONE NO. LOCATION OF WORK STREET ADDRESS LOT BLOCK SUBDIVISION _ UNIT DESCRIPTION OF WORK TYPE OF REVIEW/PERMIT: (CIRCLE ONE) RESIDENTIAL COMMERCIAL LAND DEVELOPMENT SITE PLAN UTILITY RIGHT-OF-WAY JURISDICTION: (CIRCLE ONE) PUBLIC PRIVATE TYPE C STORMWATER REVIEW: (CIRCLE ONE) YES NO CONSTRUCTION TYPE. DRIVEWAY* CABLE TV UNDERGROUND STREET PAVING ELECTRICITY OVERHEAD SIDEWALKS/CURBS TELEPHONE STORM DRAINAGE RIGHT-OF-WAY WATER SYSTEMS CLEARING SANITARY SEWER OTHER NOTE: 1. Detailed drawings shall be submitted with each application. 2. This permit is issued subject to all conditions on reverse side of this application. 3. A signature by the contractor shall be construed as making the contractor personally liable for all permit conditions unless contractor attached written proof of authorization to act on behalf of the applicant. 4. All work is subject to final inspection by Engineering Division. Call 77D-5455, "AIRS' (automated inspection request system) to schedule inspections for any permit issued after January 1, 2001 APPLICANT I CONTRACTOR SIGNATURE NAME (PLEASE PRINT) OFFICE USE ONLY NOTES: PERMIT FEE S ISSUING OFFICER DATEISSUED EXPIRATION DATE Rev. 2/la/04 C:0—iments and Settings\vebmaster\Deslaop\ROW APPLICATION FORM.dm RIGHT-OF-WAY CONDITIONS 1. Applicant shall not begin construction of any kind in the County right-of-way prior to application and issuance of a valid permit by the Department of Public works. 2. Any areas disturbed in the County right-of-way must be restored by applicant to a condition equal to or better than existing just prior to construction, including but not limited to compaction, grading, paving, seeding mulching and sodding, etc., as the case my be. The quality of construction, materials, and workmanship shall be in accordance with County standards. 3. "Applicant shall notify the Engineering Division at least 48 hours prior to the placement of concrete, paving of asphalt, installation of culverts, or backfilling of trenches, so that the County may inspect installations as necessary. Applicant shall further notify the County in writing of its request for final inspection and approval at the completion of the permitted activity. 4. This permit shall EXPIRE WITH THE ASSOCIATED LAND DEVELOPMENT OR SITE PLAN PERMIT unless otherwise stated in writing on the face of this permit by an authorized representative of the Engineering Division. 5. peFFRA te Indemnify and save haPFRIess the aeunty, its affieers, employees, OF agents, IfFer" an", The applicant agrees to use all reasonable care under the given circumstances to assure that members of the traveling public are not unreasonably inconvenienced nor endangered by the activities conducted hereunder, including the use of reflectorized barriers, warning signals, flagmen or other prudent measures as described in the Manual on Uniform Traffic Control Devices, (MUTCD), 2000 Edition, published by US Department of Transportation, Federal Highway Administration. 6. The validity of this permit is contingent upon applicant obtaining necessary permits from any other agencies having jurisdiction. Issuance of this permit does not relieve applicant of liability for trespass to private property. 7. This permit shall be considered a license only, for the limited purpose of installation, placement and maintenance of the improvements specified on the face hereof, and does not convey any other right, title, or interest of the Count in the subject right-of-way property. 8. 9. Applicant is cautioned that electrical, water and sewer, or other installations or utilities may be located within the construction area, and applicant shall use diligent efforts to first detect and locate all such installations, and shall coordinate construction with all lawful users of said fight -of -way. Applicant shall be liable in every manner for all damages proximately resulting from its interference with or interruption of services provided by other lawful right-of-way users. 10. *In cases where a concrete driveway is to extend to a paved road, that portion of the driveway from property line to edge of the road pavement shall be a minimum thickness of four inches for residential, local roads only, all others will be six inches, as specified in Chapter 312.19(2B) of the County Right -of - Way Ordinance. If road is unpaved concrete/asphalt driveway shall not extend beyond the property line. INDIAN RIVER COUNTY RIGHT-OF-WAY INFORMATION & FEE SCHEDULE PERMIT/REVIEW TYPE FEE STORMWATER TYPE C $100.00 SINGLE FAMILY ROW & DRAINAGE REVIEW (PRIVATE) $ 45.00 SINGLE FAMILY ROW & DRAINAGE REVIEW/PERMIT (PUBLIC) $ 75.00 UTILITY ROW PERMIT $350.00 LAND DEVELOPMENT ROW PERMIT $550.00 COMMERCIAL ROW PERMIT $300.00 ADDITIONAL FEES RE -INSPECTION AFTER 2 SITE VISITS — (CHARGED @ AN HOURLY RATE) PLAN REVIEW AFTER 3r° RESUBMITTAL — (CHARGED @ AN HOURLY RATE) Fees and Security Requirement Waived as Part of Settlement Re, 2118104 C:\Documents and Settings\webmaslen\Desktop\ROW APPLICATION FORMA2 Re, 2/18104 C:\Docurtterlts and Settings\w bmasteADesktop\ROW APPLICATION FORM dw F CROSSING AGREEMENT AMENDMENT BY AND AMONG FLORIDA EAST COAST RAILWAY, LLC, BRIGHTLINE TRAINS LLC, AND COUNTY, PERTAINING TO RAILWAY CROSSINGS COVERED BY EXISTING CROSSING LICENSE AGREEMENTS THIS Crossing Agreement Amendment (hereinafter "Amendment') is made and entered into this _ day of , 2018, by and among FLORIDA EAST COAST RAILWAY LLC, a Florida Limited Liability Company, with an address of 7411 Fullerton Street, Suite 300, Jacksonville, FL 32256 (hereinafter 'FECR') BRIGHTLINE TRAINS LLC, a Delaware Limited Liability Company (authorized to do business in Florida), with an address of 161 NW 6TH ST, STE. 900, Miami, FL 33136 (hereinafter "BRIGHTLINE'), and COUNTY, a Political Subdivision of the State of Florida (hereinafter "COUNTY") (collectively, the "Parties"). RECITALS WHEREAS, FECR owns and operates a rail corridor located within the boundaries of COUNTY; and WHEREAS, COUNTY has various roadways that cross the FECR right-of-way as listed in Exhibit A, as such Crossings are more particularly defined in various license and/or crossing agreements(hereinafter individually and in the aggregate, as the case requires, referred to as "Crossings"); and WHEREAS, FECR has entered into various license and/or crossing agreements with COUNTY that set forth the rights and obligations of the Parties with respect to each of the Crossings, as amended and assigned to date, as listed in Exhibit A (hereinafter "License Agreements"), and WHEREAS, BRIGHTLINE is developing an intercity passenger rail service from Miami to Orlando, to be located within FECR's railway right-of-way (hereinafter "Project"); and WHEREAS, FECR has agreed to allow BRIGHTLINE to utilize its rail corridor for the Project, and WHEREAS, in order to accommodate the Project it is necessary for BRIGHTLINE to install a second track which requires improvement, construction and alterations to existing Crossings; and WHEREAS, pursuant to the License Agreements, COUNTY is responsible for a portion of the costs related to improvements made to each Crossing; and WHEREAS, BRIGHTLINE has agreed to incur all costs related to the Crossing improvements to the extent required for the Project to ensure safety at public crossings and to commence passenger rail service; and WHEREAS, COUNTY finds that the terms of this Amendment will benefit the safety and welfare of the public, and WHEREAS, BRIGHTLINE has entered into a Settlement Agreement with COUNTY and others, dated . 2018 (hereinafter "Settlement Agreement"); NOW THEREFORE, for the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1. PURPOSE The purpose of this Amendment is to memorialize the agreement reached relating to the Project with respect to the Crossings and terms related to the construction, maintenance and safety of the Crossings. Section 2. LICENSE AGREEMENTS The Crossings, as improved for the Project, shall continue to be governed by the terms and provisions of the License Agreements, listed on Exhibit A. Section 3. BRIGHTLINE REPRESENTATIONS 3.1 Initial Development Costs. BRIGHTLINE shall fund and be responsible for all necessary and reasonable capital investments to complete the initial installation of crossing improvements at the Crossings to the extent required for compliance with currently applicable laws and requirements for passenger rail service (hereinafter, the "Initial Development Costs"). The Initial Development Costs may include some or all of the following, based on the individual requirements for each Crossing, as more specifically described in the final plans and drawings for each Crossing provided by BRIGHTLINE to COUNTY: the installation, relocation or alteration of new track and/or the existing track; cables; railroad devices; crossing structures, railroad signalization equipment; grade crossing surfaces; roadway, signage and pavement marking; co- habitation of roadway traffic signals impacted by the Project to railroad truss structures; relocation of any permitted COUNTY utilities and, any other element necessary to comply with all applicable laws and regulations. The Initial Development Costs do not include the costs of any other improvements to the Crossings related to the establishment of quiet zones or any other improvements required or desired by COUNTY, except as provided in the Settlement Agreement. Regardless of any provision to the contrary the License Agreements, COUNTY shall have no responsibility for any Initial Development Costs, except as provided in the Settlement Agreement. 3.2 Maintenance of Existing Crossing. If 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, that 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 the COUNTY may bear in accordance with the existing License Agreements. 3.3 Standards BRIGHTLINE shall construct all track and crossing Project improvements at each Crossing in compliance with the crossing construction plans submitted by BRIGHTLINE to the COUNTY and incorporated in the Settlement Agreement, in Exhibit 3.4 Coordination. BRIGHTLINE and COUNTY agree to coordinate and cooperate with each other at all times with regard to notice, permitting, mobilization and construction timing of the Project improvements. Elements of the Project may extend beyond the FECR right- of -way at certain Crossing(s) in order to complete the Project within 1- -2- aforementioned standards and guidelines. Where elements of the crossing upgrades extend beyond the FECR right-of-way at any crossing, BRIGHTLINE shall coordinate any required crossing upgrade work which must be performed outside of the FECR right-of-way with the COUNTY and obtain all necessary permits, subject to the terms of the Settlement Agreement. COUNTY acknowledges that it will grant to BRIGHTLINE the necessary permits for the installation and construction of any aspects of the crossing upgrades outside of the FECR right- of-way, subject to the terms of the Settlement Agreement. BRIGHTLINE will repave or restore the COUNTY's right-of-way if impacted by the crossing upgrade construction at BRIGHTLINE's expense. If there is striping on COUNTY streets which extends beyond the FECR right-of-way then as part of the Project, BRIGHTLINE will re-stripe COUNTY's street along with the portions of the street within FECR's right-of-way at BRIGHTLINE's expense, subject to the terms of the Settlement Agreement. In connection with future maintenance at these Crossings, if comparable restriping is necessary outside of the FECR right-of-way, FECR will perform that restriping, and the costs of such restriping in the COUNTY's right-of-way shall be apportioned to COUNTY, subject to Section 6 below. 3.5 Minimal Disruption. BRIGHTLINE shall perform and complete the Project in a manner that minimizes disruption and inconvenience to COUNTY and the public but COUNTY recognizes that, as with any construction project, there will be unavoidable disruptions and inconvenience to COUNTY and the public. BRIGHTLINE will make every effort to coordinate Crossing closures so as not to adversely impact COUNTY'S scheduled special events. BRIGHTLINE shall make reasonable efforts to only close individual crossings for a period of not more than three (3) consecutive days, provided that the COUNTY acknowledges that some crossings may take longer, ideally no more than five days. BRIGHTLINE will coordinate with the COUNTY so that the crossing improvement work minimizes disruption and inconvenience to the COUNTY and its residents. 3.6 Maintenance of Traffic. BRIGHTLINE shall be responsible for the costs of Maintenance of Traffic signage during the Project. BRIGHTLINE or its contractor shall submit a Maintenance of Traffic plan for each individual Crossing to the COUNTY a minimum of four (4) weeks prior to the commencement of Project work. COUNTY agrees to approve such plan, provided it is in compliance with federal, state, and local maintenance of traffic requirements. 3.7 Quiet Zone. If COUNTY successfully obtains approval to classify the crossings within its boundaries as part of a Quiet Zone, prior to BRIGHTLINE's installation of the various crossing upgrades identified above, BRIGHTLINE agrees to install the quiet zone required improvements to the crossings, at the expense of COUNTY or such other governmental agency that agrees to pay the expenses associated therewith. 3.8 Budget Estimates. To accommodate COUNTY s statutory budget process and fiscal year (October11- September 301, referred to as "Government Fiscal Year"), FECR agrees to utilize commercially reasonable efforts to provide to COUNTY, no later than April 1 It each year, the list of Crossings scheduled for maintenance during the upcoming Government Fiscal Year, along with an estimate of any and all costs or expenses for which COUNTY will be responsible under the License Agreements during such Government Fiscal Year. COUNTY acknowledges that emergency and unanticipated repairs may be necessary at crossings periodically, and FECR may not be able to provide normal advance notice thereof. This provision shall survive any expiration or termination of the License Agreements, as amended. 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 COUNTY 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 COUNTY 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 aninvoice. 4.4 Ongoing Maintenance. For so long as FECR is the party responsible for maintaining the Crossings following the Project upgrades, COUNTY may continue to interface solely with FECR in connection with that maintenance and COUNTY required reimbursement in connection therewith. FECR and COUNTY 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 COUNTY 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 FDOTs 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. COUNTY REPRESENTATIONS 5.1 Permits; Maintenance of Traffic. COUNTY 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 COUNTY acknowledges that FECR may apportion the appropriate share of such costs to COUNTY in accordance with the existing License Agreements. 5.3 Ongoing Maintenance Costs. COUNTY acknowledges that the costs for crossing surface maintenance and future crossing surface and signal upgrade charges shall be reimbursed by COUNTY 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 FDOTs 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, -3- -4- as amended. Section 6. MAINTENANCE COST SHARING This Amendment shall not after COUNTY 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 "14 -year period"), COUNTY and BRIGHTLINE shall share responsibility for paying COUNTY's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: COUNTY shall pay up to $ of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and BRIGHTLINE shall pay the balance of such costs; provided, however, that if COUNTY does not pay its share of such road surface, signal, and other crossing maintenance and rehabilitation costs as contemplated herein, BRIGHTLINE shall have no responsibility for paying any portion of such costs for the year in question. For example, if COUNTY were to receive a total of $ in invoices from FECR in a particular calendar year, COUNTY would be obligated to pay those invoices in full; but if COUNTY were to receive a total of $ in invoices from FECR in a particular calendar year, COUNTY would only be obligated to pay $ and upon such payment, BRIGHTLINE would be obligated to pay the balance due — $ For each of the first three years after the 14 -year period concludes, COUNTY and BRIGHTLINE shall share responsibility for paying COUNTY's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: COUNTY shall pay up to the average total amount invoiced by FECR for such costs each year during years 8 through 14 of the 14 -year period, and BRIGHTLINE shall pay the balance of such costs; provided, however, that if COUNTY 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. COUNTY shall remain solely responsible for paying FECR the applicable license fee for each crossing per year, and: (i) COUNTY shall not indemnify, defend, or hold harmless BRIGHTLINE for any reason whatsoever in connection with the License Agreements, as amended, except as otherwise provided in the Settlement Agreement; (ii) COUNTY shall not add BRIGHTLINE onto its insurance for any reason whatsoever in connection with the License Agreements, as amended; and (iii) COUNTY shall not consent to waive its sovereign immunity for any action that involves BRIGHTLINE. COUNTY acknowledges that sovereign immunity does not apply for alleged or actual breaches of express written agreements and amendments thereto entered by the COUNTY that are duly authorized by its Board of County Commissioners, including the License Agreements, as amended, and the Settlement Agreement; 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 respect to COUNTY 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 COUNTY and/or BRIGHTLINE. Section 8. CONFLICTS WITH SETTLEMENT AGREEMENT For avoidance of doubt, as between BRIGHTLINE and COUNTY, in the event of a conflict between the terms 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 COUNTY and execution by all parties. 9.2 Term. 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 of Florida. Any questions or matters arising under the License Agreements as to validity, construction, enforcement, performance, or otherwise, shall be determined in accordance with the laws of the State of Florida. Venue for any action arising out of or in any way related to this Amendment shall be as provide in the License Agreements. Section 11. NOTICE All notices required in the License Agreements, as amended, shall be sent by, hand delivery or overnight commercial courier. Notices shall be addressed as follows: To FECR: Attention: Robert Ledoux, VP and General Counsel Florida East Coast Railway L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, FL 32256 To BRIGHTLINE: Attention: Patrick Goddard, President Brigthline Trains LLC 161 NW 6"1 St, Ste. 900 Miami, FL 33136 To COUNTY: Attention: Section 12.SEVERABILITY If any term or provision of the License Agreements, as amended, or the application thereof to any person or circumstances, shall, to any extent, be held invalid or unenforceable, the remainder of the License Agreements, as amended, or the application of such terms or provisions, to persons or circumstances other than those as to which it is held invalid or -5- -6- unenforceable, shall not be affected, and every other term and provision of the License Agreements, as amended, shall be deemed valid and enforceable to the extent permitted by law. Section 13. EXHIBITS) The Exhibit(s) attached to this Amendment are incorporated fully into this Amendment by this reference. Section 14. CAPTIONS The captions and section designations contained in this Amendment are for convenience only and shall have no substantive meaning. Section 15. MODIFICATIONS TO AGREEMENT None of the provisions, terms and conditions contained in the License Agreements, as amended, may be added to, modified, superseded or otherwise altered, except by written instrument duly executed by the parties to this Amendment. Section 16. PUBLIC RECORDS The parties to this Amendment shall have access to public records pursuant to Chapter 119, Florida Statutes. Section 17. ENTIRETY OF AGREEMENT It is agreed that, except as provided in the License Agreements and the Settlement Agreement, this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated in this document. Section 18. ACCESS AND AUDITS BRIGHTLINE shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the work for at least three (3) years after completion of the work associated with such charges, expenses and costs. The COUNTY shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at BRIGHTLINE's place of business. Attest: CLERK & COMPTROLLER By: Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY By: County Attorney FECR: Florida East Coast Railway, L.L.C. By: Robert Ledoux, VP and General Counsel Date: BRIGHTLI N E: Brightline Trains LLC By: Patrick Goddard, President Date: COUNTY BOARD OF COUNTY COMMISSIONERS: By. Date: APPROVED AS TO TERMS AND CONDITIONS By: Department Director Date: -7- -8- EXHIBIT A Crossing Agreements Listing Location Mile Street AAR/DOT# I Agreement License Post I Name Holder Agreement CROSSING AGREEMENT AMENDMENT BY AND AMONG. FLORIDA EAST COAST RAILWAY, LLC, BRIGHTLINE TRAINS LLC, AND THE CITY OF , PERTAINING TO RAILWAY CROSSINGS COVERED BY EXISTING CROSSING LICENSE AGREEMENTS THIS Crossing Agreement Amendment (hereinafter "Amendment") is made and entered into this _ day of , 2018, by and among FLORIDA EAST COAST RAILWAY LLC, a Florida Limited Liability Company, with an address of 7411 Fullerton Street, Suite 300, Jacksonville, FL 32256 (hereinafter "FECR") BRIGHTLINE TRAINS LLC, a Delaware Limited Liability Company (authorized to do business in Florida), with an address of 161 NW 6TH ST, STE. 900, Miami, FL 33136 (hereinafter "BRIGHTLINE"), and THE CITY OF , a Florida municipal corporation (hereinafter "CITY") (collectively, the "Parties"). RECITALS WHEREAS, FECR owns and operates a rail corridor located within the boundaries of CITY; and WHEREAS, CITY has various roadways that cross the FECR right-of-way as listed in Exhibit A, as such Crossings are more particularly defined in various license and/or crossing agreements(hereinafter individually and in the aggregate, as the case requires, referred to as "Crossings"), and WHEREAS, FECR has entered into various license and/or crossing agreements with CITY that set forth the rights and obligations of the Parties with respect to each of the Crossings, as amended and assigned to date, as listed in Exhibit A (hereinafter "License Agreements"), and WHEREAS, BRIGHTLINE is developing an intercity passenger rail service from Miami to Orlando, to be located within FECR's railway right-of-way (hereinafter "Project"); and WHEREAS, FECR has agreed to allow BRIGHTLINE to utilize its rail corridor for the Project, and WHEREAS, in order to accommodate the Project it is necessary for BRIGHTLINE to install a second track which requires improvement, construction and alterations to existing Crossings; and WHEREAS, pursuant to the License Agreements, CITY is responsible for a portion of the costs related to improvements made to each Crossing; and WHEREAS, BRIGHTLINE has agreed to incur all costs related to the Crossing improvements to the extent required for the Project to ensure safety at public crossings and to commence passenger rail service; and WHEREAS, CITY finds that the terms of this Amendment will benefit the safety and welfare of the public; and -9- - 1 - WHEREAS, BRIGHTLINE has entered into a Settlement Agreement with MARTIN and INDIAN RIVER COUNTIES and others, dated , 2018 (hereinafter "Settlement Agreement"), NOW THEREFORE, for the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Section 1. PURPOSE The purpose of this Amendment is to memorialize the agreement reached relating to the Project with respect to the Crossings and terms related to the construction, maintenance and safety of the Crossings. Section 2. LICENSE AGREEMENTS The Crossings, as improved for the Project, shall continue to be governed by the terms and provisions of the License Agreements, listed on Exhibit A. Section 3. BRIGHTLINE REPRESENTATIONS 3.1 Initial Development Costs. BRIGHTLINE shall fund and be responsible for all necessary and reasonable capital investments to complete the initial installation of crossing improvements at the Crossings to the extent required for compliance with currently applicable laws and requirements for passenger rail service (hereinafter, the "Initial Development Costs"). The Initial Development Costs may include some or all of the following, based on the individual requirements for each Crossing, as more specifically described in the final plans and drawings for each Crossing provided by BRIGHTLINE to CITY: the installation, relocation or alteration of new track and/or the existing track; cables; railroad devices; crossing structures; railroad signalization equipment; grade crossing surfaces; roadway, signage and pavement marking; co- habitation of roadway traffic signals impacted by the Project to railroad truss structures; relocation of any permitted CITY utilities and, any other element necessary to comply with all applicable laws and regulations. The Initial Development Costs do not include the costs of any other improvements to the Crossings related to the establishment of quiet zones or any other improvements required or desired by CITY, except as provided in the Settlement Agreement. Regardless of any provision to the contrary the License Agreements, CITY shall have no responsibility for any Initial Development Costs, except as provided in the Settlement Agreement. 3.2 Maintenance of Existing Crossing. If 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, that 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 the CITY may bear in accordance with the existing License Agreements. 3.3 Standards. BRIGHTLINE shall construct all track and crossing Project improvements at each Crossing in compliance with the crossing construction plans submitted by BRIGHTLINE to the CITY and incorporated in the Settlement Agreement, in Exhibit _ 3.4 Coordination. BRIGHTLINE and CITY agree to coordinate and cooperate with each other at all times with regard to notice, permitting, mobilization and construction timing of the Project improvements. Elements of the Project may extend beyond the FECR right- of - way at certain Crossing(s) in order to complete the Project within aforementioned standards and guidelines. Where elements of the crossing upgrades extend beyond the FECR right-of- way at any crossing, BRIGHTLINE shall coordinate any required crossing upgrade work which must be performed outside of the FECR right-of-way with the CITY and obtain all necessary permits, subject to the terms of the Settlement Agreement. CITY acknowledges that it will grant to BRIGHTLINE the necessary permits for the installation and construction of any aspects of the crossing upgrades outside of the FECR right-of-way, subject to the terms of the Settlement Agreement. BRIGHTLINE will repave or restore the CITY's right-of-way if impacted by the crossing upgrade construction at BRIGHTLINE's expense. If there is striping on CITY streets which extends beyond the FECR right-of-way for a reasonably short distance , as part of the Project, BRIGHTLINE will re -stripe CITY's street along with the portions of the street within FECR's right-of-way at BRIGHTLINE's expense, subject to the terms of the Settlement Agreement. In connection with future maintenance at these Crossings, K comparable restriping is necessary outside of the FECR right-of-way, FECR will perform that restriping, and the costs of such restriping in the CITY's right-of-way shall be apportioned to CITY, subject to Section 6 below. 3.5 Minimal Disruption. BRIGHTLINE shall perform and complete the Project in a manner that minimizes disruption and inconvenience to CITY and the public but CITY recognizes that, as with any construction project, there will be unavoidable disruptions and inconvenience to CITY and the public. BRIGHTLINE will make every effort to coordinate Crossing closures so as not to adversely impact CITY'S scheduled special events. BRIGHTLINE shall make reasonable efforts to only close individual crossings for a period of not more than three (3) consecutive days, provided that the CITY acknowledges that some crossings may take longer, ideally no more than five days. BRIGHTLINE will coordinate with the CITY so that the crossing improvement work minimizes disruption and inconvenience to the CITY and its residents. 3.6 Maintenance of Traffic. BRIGHTLINE shall be responsible for the costs of Maintenance of Traffic signage during the Project. BRIGHTLINE or its contractor shall submit a Maintenance of Traffic plan for each individual Crossing to the CITY a minimum of four (4) weeks prior to the commencement of Project work. CITY agrees to approve such plan, provided it is in compliance with federal, state, and local maintenance of traffic requirements. 3.7 Quiet Zone. If CITY successfully obtains approval to classify the crossings within its boundaries as part of a Quiet Zone, prior to BRIGHTLINE's installation of the various crossing upgrades identified above, BRIGHTLINE agrees to install the quiet zone required improvements to the crossings, at the expense of CITY or such other governmental agency that agrees to pay the expenses associated therewith. 3.8 Budget Estimates. To accommodate CITY's statutory budget process and fiscal year (October 1°` _ September, referred to as "Government Fiscal Year"), FECR agrees to utilize commercially reasonable efforts to provide to CITY, no later than April 1° each year, the list of Crossings scheduled for maintenance during the upcoming Government Fiscal Year, along with an estimate of any and all costs or expenses for which CITY will be responsible under the License Agreements during such Government Fiscal Year. CITY acknowledges that emergency and unanticipated repairs may be necessary at crossings periodically, and FECR may not be able to provide normal advance notice thereof. This provision shall survive any expiration or termination of the License Agreements, as amended. -2- -3- 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- of Florida. Any questions or matters arising under the License Agreements as to validity, construction, enforcement, performance, or otherwise, shall be determined in accordance with the laws of the State of Florida. Venue for any action arising out of or in any way related to this Amendment shall be as provide in the License Agreements. Section 11. MICE All notices required in the License Agreements, as amended, shall be sent by, hand delivery or overnight commercial courier. Notices shall be addressed as follows: To FECR: Attention: Robert Ledoux, VP and General Counsel Florida East Coast Railway L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, FL 32256 To BRIGHTLINE: Attention: Patrick Goddard, President Brigthline Trains LLC 161 NW 611 St, Ste. 900 Miami, FL 33136 To CITY: Attention: Section 12.SEVERABILITY If any term or provision of the License Agreements, as amended, or the application thereof to any person or circumstances, shall, to any extent, be held invalid or unenforceable, the remainder of the License Agreements, as amended, or the application of such terms or provisions, to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and every other term and provision of the License Agreements, as amended, shall be deemed valid and enforceable to the extent permitted by law. Section 13. EXHIBITS) The Exhibit(s) attached to this Amendment are incorporated fully into this Amendment by this reference. Section 14. CAPTIONS The captions and section designations contained in this Amendment are for convenience only and shall have no substantive meaning. Section 15. MODIFICATIONS TO AGREEMENT None of the provisions, terms and conditions contained in the License Agreements, as amended, may be added to, modified, superseded or otherwise altered, except by written instrument duly executed by the parties to this Amendment. Section 16. PUBLIC RECORDS The parties to this Amendment shall have access to public records pursuant to Chapter 119, Florida Statutes. Section 17. ENTIRETY OF AGREEMENT It is agreed that, except as provided in the License Agreements and the Settlement Agreement, this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated in this document. Section 18. ACCESS AND AUDITS BRIGHTLINE shall maintain adequate records to justify all charges, expenses, and costs incurred in estimating and performing the work for at least three (3) years after completion of the work associated with such charges, expenses and costs. The CITY shall have access to such books, records, and documents as required in this section for the purpose of inspection or audit during normal business hours, at BRIGHTLINE's place of business. -6- -7- Attest: CLERK & COMPTROLLER By: Deputy Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY By: CITY Attorney FECR: EXHIBIT A Crossing Agreements Listing Florida East Coast Railway, L.L.C. Location Mile Street AARlDOT# Agreement License Post Name Holder Agreement By: Robert Ledoux, VP and General Counsel Date BRIGHTLINE: Brightline Trains LLC By: Patrick Goddard, President Date: CITY BOARD OF CITY COMMISSIONERS: By: Date: APPROVED AS TO TERMS AND CONDITIONS By: Department Director Date DRAFT A MUNICIPAL CROSSING COST REDUCTION AGREEMENT This Municipal Crossing Cost Reduction Agreement (the "Agreement") is made and entered into as of [Date] (the "Effective Date'), by and between [City/Town], a Florida municipal corporation ("Municipality"), and Brightline Trains LLC (`Brightline") (together, the "Parties'. RECITALS WHEREAS, Municipality is a Florida municipal corporation governed by a [City / Town Council] (the "Municipal Council"); WHEREAS, Municipality is located in [Martin / Indian River] County, a political subdivision of the State of Florida; WHEREAS, Brightline is a corporate entity tasked with developing and operating express passenger rail service between Miami and Orlando, Florida (the "Brightline Project"); WHEREAS, the bulk of Brightline's planned passenger service route, including the portion which will pass through [Martin / Indian River] County, will use the Florida East Coast Railway LLC ("FECR') railroad right-of-way (the "FECR ROW'); WHEREAS, Municipality has independent roadway crossing agreements with FECR, which are listed in Exhibit _ (the "Existing Municipal Crossing Agreements"); WHEREAS, to accommodate Brightline's express passenger service, Brightline is upgrading the portion of the FECR ROW between Miami and Cocoa by, inter alia, upgrading existing railroad ties and tracks, installing a second set of mainline tracks, improving roadway crossings, and installing and activating Positive Train Control systems; WHEREAS, [Martin / Indian River] County and others recently entered into a Settlement Agreement with Brightline (the "Settlement Agreement") which included as a condition that Municipality be offered the opportunity to enter into this Agreement; and WHEREAS, Municipality desires to obtain the benefits of this Agreement, on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and other good and valuable consideration the receipt and the sufficiency of which are acknowledged, the Parties hereby agree as follows: 1. Incorporation of Definitions and Recitals. The definitions and recitals above are incorporated herein by reference and made a substantive part of this Agreement. Municipality Roadway Crossing Maintenance. Municipality shall execute amendments to the Existing Municipal Crossing Agreements, in the form attached as Exhibit _. The amendments shall not alter Municipality'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, Municipality and Brightline shall share responsibility for paying Municipality's road surface, signal, and other crossing maintenance and rehabilitation costs, as follows: Municipality shall pay up to $[Average Historical Cost] of the total amount invoiced by FECR for road surface, signal, and other crossing maintenance and rehabilitation costs each calendar year, and Brightline shall pay the balance of such costs; provided, however, that if Municipality 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. For example, if Municipality were to receive a total of $[Amount Less Than Average Historical Cost] in invoices from FECR in a particular calendar year, Municipality would be obligated to pay those invoices in full; but if Municipality were to receive a total of $[Amount More Than Average Historical Cost] in invoices from FECR in a particular calendar year, Municipality would only be obligated to pay $[Average Historical Cost], and upon such payment, Brightline would be obligated to pay the balance due — $[Difference]. The amendments shall further provide that Municipality shall remain solely responsible for paying FECR the applicable license fee for each crossing per year. [Note: Municipality'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.] Commitments of Municipality Regarding the Brightline Project (a) Municipality hereby agrees that it will not oppose or challenge, or encourage others to oppose or challenge, any pending or future federal, state, or local approval, permit, or authorization relating to the Brightline Project, or the financing of the Brightline Project, or seek any further state, federal or local environmental or other review with respect to the improvements which Brightline is committing to make in the Settlement Agreement, during the period of construction and the first five (5) years of Brightline passenger revenue operations between West Palm Beach and Orlando, including but not be limited to any approval, permit, or authorization issued by the U.S. Department of Transportation, the Federal Railroad Administration, the U.S. Army Corps of Engineers, the U.S. Coast Guard, the Florida Department of Transportation, the St. Johns River Water Management District, and the South Florida Water Management District, as well as the Final Environmental Impact Statement issued for the Brightline Project and any other NEPA, NHPA, or related project review/consultation documents. (b) Municipality hereby acknowledges and agrees that it has evaluated the work currently proposed to be done within Municipality as part of the Brightline Project and has determined that the work to be done inside the FECR ROW is not subject to any Municipal permitting requirements. (c) Municipality shall not seek to impose any local approval or permitting requirements with respect to work to be done within the FECR ROW. (d) During the period of construction and the first three years of Brightline passenger revenue operations between West Palm Beach and Orlando, Municipality will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal or state legislation, or new local laws or regulations that would directly -2- and adversely impact the Brightline Project. (e) Municipality will not pass any resolution or adopt any other official act that publicly supports or actively encourages others to support any federal, state, county, or local laws or regulations that would directly and adversely impact Brightline's ability to comply with any tern of the Settlement Agreement or this Agreement, or vary any commitment made under the Settlement Agreement or this Agreement. 4. Notice and O000rtunity to Cure. In the event that a Parry alleges another Party to be in material breach of this Agreement, the Party alleging the material breach shall provide the other Party with written notice identifying with specificity the date and location of the perceived material breach and the provision of the Agreement breached ("Cure Notice'. The Party receiving such Cure Notice shall have thirty (30) days from the time it receives the Cure Notice (the "Cure Period") to either (a) cure the alleged material breach and respond in writing, describing what remedial action has been taken, or (b) respond in writing, explaining why no breach has occurred. During the Clue Period, and afterward, the Parties shall cooperate in good faith to resolve the alleged material breach. If the Party alleged to have materially breached this Agreement cures or otherwise satisfactorily responds to the alleged material breach within the Cure Period, the Party alleging the material breach shall not file a lawsuit or take other action predicated upon the alleged material breach. If the Party alleged to have materially breached the Agreement does not cure or satisfactorily respond to the alleged material breach within the Cure Period, the other Party shall be entitled to file suit to cure the alleged material breach and seek to terminate this Agreement and/or the contemplated amendments to the Existing Municipal Crossing Agreements. 5. Compromise. This Agreement is made in compromise of a dispute. Nothing herein shall be construed or deemed an admission of liability or wrongdoing. 6. Entire Agreement. This Agreement contains the entire agreement of the Parties, and supersedes any and all prior negotiations, representations, understandings, and agreements, whether oral or in writing, with respect to the subject matter hereof. 7. Modification. This Agreement may not be amended, modified, released, discharged, or otherwise terminated, in whole or part, except by an instrument in writing signed by authorized representatives of the parties hereto. 8. Construction. This Agreement was drafted by counsel for the Parties and shall not be construed more strictly against any Party on the ground that it was the drafter. 9. Governing Law; Attorneys' Fees. This Agreement shall be construed and the legal relations between the Parties shall be determined in accordance with Florida law. In any litigation or other legal proceeding arising out of or related to this Agreement, both parties agree to waive claims for attorneys' fees and costs. 10. Waiver. Each Party acknowledges and agrees that it has had the opportunity to consult with counsel of its choice in deciding whether to enter this Agreement. Each Party further acknowledges that it was not fraudulently induced, coerced, or intimidated to sign this Agreement, and agrees not to seek to upset this Agreement by reason of any fact or matter, including but not limited to the discovery of any claim or defense not presently known to it. Each Party affirmatively waives and releases any claim that it has been misled or fraudulently induced to enter this Agreement. 11. Authority. Each Party represents and warrants that it is authorized to enter this Agreement, and that the individual executing this Agreement on its behalf has the legal authority to do so. The Municipal Council's resolution authorizing the execution of this Agreement are attached hereto as Exhibit _ The Brightline resolution authorizing the execution of this Agreement is attached hereto as Exhibit _ 12. Counterparts. This Agreement may be executed in counterparts, by facsimile, each of which shall be deemed an original but all of which shall constitute one instrument. 13. Venue. Venue for disputes arising out of or relating to this Settlement Agreement shall be in the U.S. District Court for the Southern District of Florida, Fort Pierce Division, or state court in St. Lucie County, Florida. [Remainder of Page Intentionally Left Blank] -3- -4- IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties have set their hands and seals to this instrument as of the Effective Date above. ACCEPTANCE BY MARTIN COUNTY ATTESTED: a Florida municipal corporation, By: By: Chairman, Municipal Council [INSERT] APPROVED AS TO FORM AND CORRECTNESS: By: [INSERT] Municipality Attorney ACCEPTANCE BY BRIGHTLINE TRAINS LLC BRIGHTLINE TRAINS LLC, ATTESTED: a Delaware limited liability company By: Patrick Goddard President -5- Bv: Myles L. Tobin, Esq. General Counsel V� Attad—nt 2 Proposed Brightline Security fence Segments _ North Limit South !unit _. `RhierlNoM County line) Sehas[ianlMut[nal warn AtanN PMnU! _ _.l So"p aar Street jGa[orDrke North Of 87ei Sl e!t South d CR 570 __ r--- 69"`4ree[... _._... 65- Street .. __. NoMd9 Street ...____. _ 38"lane s {— Ar tun Boulevard t]"krcet_ __ 8^Street _ 14" Street SW { 1 MBYJard DrF. SouN CoWryLNe F Proposed Security Fence Segments Legend +--- IRC_Rul—d H Proposed Fence Proposed Security Fence Segments IyaIE o+n uara or.agaa iyMlYWAsbw�r ehhnn. rnw�wan rmrnw smr SrMwiRrER BEAtw RD) er1r13T (S tMN'!ER BfALH Rq 2 a risme -avrri sT pi+nserRo) � qQ 92 NP HST GT(SGMA RD) �tSTST�C01/NfyRp�p [SCq Si Legend �-- - IRC_Rairoad ...WO Pmposed F arH sr pwurrx,ry aTR sr �y�. 26TH sT . ..-z+srsr amrsr )smTERwO IyaIE o+n uara or.agaa iyMlYWAsbw�r ehhnn. rnw�wan rmrnw Proposed Security Fence Segments Legend — IR Refl—d ,.demi Prapa F- L--_ REAL ESTATE LEASE (Land, Inside ROW —Annual Term) The Real Estate Lease (this "Lease") is made effective as of this _ day of 201_, by and between FEC ROW LLC, a Florida limited liability company ("Lessor") and [Name of Lessee], a [Type of Entity], whose business address is [Lessee's Address] ("Lessee"). LA Leased Premises: Lessor hereby leases to Lessee and Lessee hereby leases from Lessor under the terms and conditions set forth in this Lease, the following described property: SEE EXHIBIT A [Attached hereto and made a part hereof) All as shown on Lessor's Drawing No [Insert Drawing #1, dated [Insert Drawing Datel, attached hereto as Exhibit B, and made a part hereof, located within the Florida East Coast Railway, L.L.C. right of way (the "ROW") (collectively with any buildings, facilities and improvements currently or in the future located on the described property, the "Leased Premises"). 1.13 Railway and BRIGHTLINE are Third Party Beneficiaries The parties hereto agree and acknowledge that (i) Lessor, formerly known as FDG Flagler Station II LLC, which, in turn, was formerly known as FDG ROW Holdings LLC, and Florida East Coast Railway, L.L.C., successor by merger to Florida East Coast Railway Company (the "Railway's entered into that certain First Amended and Restated Grant of Easements (the "Easement") as recorded in Book 46741 Page 177 in current Public Records of Broward County, Florida, pursuant to which the Railway granted to Lessor certain rights with respect to the ROW, including the right to enter into this Lease, and (ii) the terms and conditions ofthe Easement require that the Railway and Brightline Trains LLC `BRIGHTLINE" (including its successors and assignors) shall he third party beneficiaries of this Lease due to the Railway's and BRIGHTLINE's continuing use of the ROW. Accordingly, by executing this Lease (with initials set forth below), Lessee agrees to abide by the terms and conditions set forth herein (including, without limitation, those terms and conditions that are for the benefit of the Railway and BRIGHTLINE) and that, in addition to the rights and remedies granted Lessor herein, the terms and conditions set forth herein j shall be enforceable against Lessee by the Railway and BRIGHTLINE as third party beneficiaries. 1 Further, unless requested otherwise by Lessor and excluding payments hereunder, a copy of each notice, request (including requests for consent) and/or delivery made by the Lessee hereunder to Lessor shall be simultaneously delivered to the Railway at c/o General Counsel, Florida East Coast Railway, L.L.C., 7411 Fullerton Street, Suite 300, Jacksonville, Florida 32256. County: [ Insert County ] 1 File No.: [ Insert File No. ] 2. Term The term of this Lease shall be from [Insert month, day & year] through [Insert month, day, & year] (the "Term"); provided, however, that Lessee shall have no right to possession of the Leased Premises until (a) the Security Deposit has been delivered to Lessor and, if the Security Deposit is in the font of a check, the Security Deposit shall not be deemed delivered to Lessor until that check has cleared the bank and funds have been credited to Lessor's account and (b) Lessee has provided Lessor with a certificate of insurance evidencing the insurance coverages Lessee is obligated to maintain pursuant to this Lease. This Lease shall automatically renew after the expiration of the Term, for successive twelve (12) month renewal periods (the "Renewal Terms") unless terminated at least thirty (30) days before the expiration of the Term or Renewal Term, as the case may be, by furnishing written notice of termination to the other party. Unless Lessor indicates otherwise in writing, the covenants and conditions of this Lease in force during the Term, as the same may be modified from time to time, shall continue to be in effect during all Renewal Terms, except that the Base Rent (as hereinafter defined) for each Renewal Term shall be increased by five percent (5%) of the Base Rent for the tern[ immediately preceding the Renewal Term or, upon 30 days notification to Lessee by Lessor prior to the termination of the Renewal Term, Lessor shall establish a new Base Rent in its sole discretion. Except as set forth in this paragraph 2, Lessee shall have no expectation of renewal and this Lease may be terminated in accordance with its terms regardless of the length of time Lessee has occupied the Leased Premises, or the construction by Lessee of any buildings, structures, works, paving, barricades or the placement of Lessee's personal property on the Leased Premises. 3. Rent (a) Base Rent During the Term of this Lease, the Lessee shall pay to Lessor [an/al [annuaUsemi- annual/quarterly/monthly] rent in advance on or before the Ist day of each term [year/half- year/quarter/month] plus all sales or use taxes levied by any governmental body for the use or occupancy of the Leased Premises ("Sales and Use Tax"), as set forth below (`Base Rent"):: Effective Date Base Rent (b) Additional Charges If Lessee's presence or activities on the Leased Premises causes Lessor to incur costs for cleaning, trash removal, inspections, or like expenses, Lessee agrees to pay such cost to Lessor on demand, the amount of such costs incurred by Lessor. Notwithstanding the foregoing, Lessee will pay on demand the greater of the actual inspection costs or $350.00 for any inspection conducted by Lessor or its agents (including representatives of the Railway and BRiGHTLINE) on the Leased Premises the results of which show, in Lessor's sole determination, a violation of this Lease or any federal, state or municipal law or regulation. Lessee shall also pay on demand the greater of the actual inspection costs or $350.00 for any follow-up inspections related to the violation. (c) Late Charge If any Base Rent or other payment due under this Lease is not received by Lessor within ten (10) days of the due date of such payment, Lessee shall pay, in addition to such payment a late charge equal to the greater of five percent (51/o) of the payment which is past due or Two Hundred Fifty and No/100 Dollars ($250.00). If any payment due from Lessee shall remain overdue for more than ten (10) days, interest shall accrue daily on the past due amount from the date such amount was due until paid or judgment is entered at a rate equivalent to the lesser of eighteen percent (18%) per annum or the highest rate permitted by law. Interest on the past due amount shall be in addition to and not in lieu of the five percent (5%) late charge or any other remedy available to Lessor hereunder, at law and/or in equity. (d) Additional Rent All charges payable by Lessee under the terms of this Lease other than Base Rent, including, without limitation, Sales and Use Tax, and charges, expenses, costs or payments due pursuant to Paragraphs 3(b), 3(c), 4(a), 4(b), 4(c) and 4(d) of this Lease are called "Additional Rent." Unless this Lease provides otherwise, all Additional Rent shall be paid with the next [annual/semi-annual/quarterly/monthly] installment of Base Rent and shall include all applicable sales or use taxes. The term "Rent" shall mean Base Rent and Additional Rent. Utility Charges, Taxes, Document Stamps (a) Utility Charges All charges on the Leased Premises for all utilities, including but not limited to Base Rent and Additional Rent (as hereinafter defined) shall be paid to Lessor at FEC ROW LLC, water, electricity, telephone, gas, heat, storm water, and sewers and for taxes on Lessee's P.O. Box 744305, Atlanta, Georgia 30374, or as otherwise indicated on the applicable invoices. improvements shall be paid by the Lessee within ten (10) days after date of invoice. The requirement to pay Base Rent, Additional Rent and other payments shall survive expiration or termination of this Lease until all Lessee's Property (as defined in paragraph 14 hereof) is (b) Ad Valorem Taxes removed from the Leased Premises in accordance with this Lease and the requirements of paragraph 14 of this Lease are met Lessee agrees to pay, within thirty (30) days after presentation unto Lessee by Lessor, bills for all special assessments, ad valorem taxes and any other taxes of whatsoever kind or nature levied by the United States of America, State of Florida, any county, municipality or special taxing district organized and existing under the laws of the State of Florida, upon any of the Leased Premises on a pro -rated basis. All taxes and special assessments, payable on an annual basis, are to be pro -rated by the parties hereto for the year during which this Lease is made, as well as the year in which the same may be terminated. (c) Document Stamps Lessee shall pay any necessary documentary stamp taxes required to be affixed to this Lease under the laws of the United States of America, the State of Florida, or both. (d) Sales and Use Tax, Personal Property Tax Lessee will pay all Sales and Use Taxes and all personal property taxes that may be levied or assessed against the personal property of the Lessee. As Is. Maintenance LESSOR MAKES NO WARRANTY, REPRESENTATION OR UNDERTAKING, EXPRESSED OR IMPLIED AS TO THE CONDITION OF THE LEASED PREMISES and Lessee, at its sole cost and expense, hereby agrees to put the Leased Premises in such condition for its proposed use and to maintain them in their entirety. The Leased Premises is leased as it currently exists in an AS IS condition and the Lessee, who has inspected the Leased Premises prior to entering into this Lease, accepts the Leased Premises AS -IS and shall henceforth be responsible for any and all repairs and maintenance to the land and any buildings, facilities and improvements located thereon. Lessee shall, at its sole cost and expense, obtain any required permits and consents and perform all work required for the preparation of the Leased Premises for occupancy by Lessee, in the absence of any special provision herein contained to the contrary, and Lessee does hereby accept the Leased Premises as now being in fit and leaseable condition for all purposes of Lessee. Lessee will keep the Leased Premises free and clear of any and all trash, brush and debris of any kind, so as to prevent the trash, brush and debris from becoming dangerous, inflammable or objectionable. Lessor shall have no duty to inspect or maintain any of the Leased Premises during the term of this Lease. Lessee shall have no claim of any kind or description for damages to goods, wares, personal property or merchandise on the Leased Premises from any cause whatsoever, INCLUDING FIRE, STORM, CASUALTY OR ACT OF GOD, OR NEGLIGENCE OF LESSOR, THE RAILWAY, OR BRIGHTLINE UNLESS CAUSED BY THE WILLFUL OR INTENTIONAL ACTS OF LESSOR, THE RAILWAY, OR BRIGHTLINE. Lessee's Compliance With Law (a) Zoning and Use Regulation Lessee will release Lessor from any loss, claim or damage which Lessee may sustain arising directly or indirectly by reason of either existing or future zoning or other regulations promulgated by any governmental agency which may adversely affect use by Lessee of the Leased Premises. Lessee shall assume all responsibility for procuring or complying with any ordinance, resolution, order, permit, consent or other such regulation, promulgated by any governmental agency whatsoever, for building or otherwise, required for the use of the Leased Premises or for the construction of any facilities upon the Leased Premises. Lessee shall indemnify, defend and hold harmless Lessor, BRIGHTLINE and the Railway from any loss, claim or damage suffered by Lessor, BRIGHTLINE or the Railway for Lessee's failure to properly and completely perform this responsibility, (b) Other Regulation Lessee shall comply with all federal, state and municipal regulations as to health, safety, zoning, police, nuisance, fire, water, liquid, solid waste and hazardous waste, highways, sidewalks and other matters, and with the regulations of all persons or corporations supplying water, gas, heat, electricity, telephone, or steam on the premises, and shall indemnify Lessor, BRIGHTLINE and the Railway against all fines, penalties, expense, damages and costs for violation thereof. Lessee is solely responsible for obtaining any and all federal, state and local licenses, permits, or other authority for its use of the premises and shall indemnify and hold harmless Lessor, BRIGHTLINE and the Railway against all fines, penalties, expenses, damage and costs for violation of or failure to comply with any federal, state or local laws or regulations. The provisions of this Paragraph 6 shall survive the expiration or any termination of this Lease. Hazardous Materials Lessee will prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of any Hazardous Materials (as hereinafter defined) on, under, in, above, to, or from the Leased Premises except that Hazardous Materials may be used in the Leased Premises as necessary for the customary maintenance of the Leased Premises provided that same are used, stored and disposed of in the ordinary course of business in strict compliance with applicable laws. For purposes of this provision, the term "Hazardous Materials" will mean and refer to any wastes, materials, or other substances of any kind or character that are or become regulated as hazardous or toxic waste or substances, or which require special handling or treatment, under any federal, state or local laws. If Lessee's activities at the Leased Premises or Lessee's use of the Leased Premises (a) results in a release of Hazardous Materials that is not in compliance with applicable laws or permits issued thereunder; (b) gives rise to any claim or requires a response under common law or applicable laws or permits issued thereunder, (c) causes a significant public health effect; or (d) creates a nuisance, then Lessee shall, at its sole cost and expense: (i) immediately provide verbal notice thereof to Lessor (with a follow-up of written notice to Lessor in the manner required by this Lease), which notice shall identify the Hazardous Materials involved and the emergency procedures taken or to be taken; and (i) promptly take all action in response to such situation required by applicable laws, provided that Lessee shall first obtain Lessor's approval of the non- emergency remediation plan to be undertaken. The provisions of this Paragraph 7 shall survive the expiration or any termination of this Lease. Inspection and Access by Railway and BRIGHTLINE Lessor shall have the right, at reasonable times and upon reasonable prior notice to Lessee, to enter the Leased Premises for the purpose of examining and inspecting the condition of the Leased Premises and to evaluate Lessee's compliance with the terms and conditions of this Lease. The Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not Lessee's use of the Leased Premises is in compliance with the terms of this Lease, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any non-compliance issues identified by the Railway and/or BRIGHTLINE. In accordance with the foregoing, each of Lessor, BRIGHTLINE and the Railway shall have the right at all times to enter the Leased Premises without prior notice to Lessee and take action in the event of any emergency affecting the Leased Premises, including but not limited to leakage of Hazardous Materials or other materials from or onto the Leased Premises, the detection of odors that appear to be coming from the Leased Premises, suspected illegal activity on or use of the Leased Premises for like activities or events. Lessee hereby releases and holds Lessor, BRIGHTLINE and the Railway harmless from any action taken by Lessor, BRIGHTLINE and/or the Railway to access the Leased Premises under the conditions set forth herein and/or to control or respond to any emergency affecting the Leased Premises. 9. Signs Lessee shall not place any signs on the Leased Premises except with the prior written consent of the Lessor, including consent as to location and design, which may be withheld in Lessor's sole discretion. Any and all such approved signs shall be installed and shall be maintained by Lessee, at its sole cost and expense and shall be in compliance with all applicable laws. Lessee shall be responsible to Lessor for the installation, use, or maintenance of said signs and any damage caused thereby. Any signs on the Leased Premises shall be considered part of Lessee's Property for purposes of Paragraph 14 hereof and Lessee shall remove said signs in accordance with same prior to termination or expiration of the Lease. 10. INDEMNIFICATION A. Indemnification Lessee hereby agrees to indemnify, defend and hold harmless Lessor, BRIGHTLINE and the Railway from and against any and all liability for any loss, injury or damage, including, without limitation, damage to the Leased Premises or to Lessee's property, consequential damage, all costs, expenses, court costs and reasonable attorneys' fees, imposed on Lessor, BRIGHTLINE and/or the Railway, as applicable, by any person whomsoever that occurs on or in (i) the Leased Premises, or (ii) any lands, buildings, structures, access areas or the like adjacent to the Leased Premises, as a result of or arising from or related in any way to the acts or failure to act of Lessee, its employees, agents or contractors, including any failure to comply with the terms and conditions of this Lease, or the presence of Lessee, its employees, agents or contractors, or the property of any of the same, on the Leased Premises or adjacent areas, and REGARDLESS OF THE CAUSE AND REGARDLESS OF WHETHER ATTRIBUTABLE TO THE FAULT, FAILURE OR NEGLIGENCE OF LESSOR, BRIGHTLINE AND/OR THE RAILWAY. The commercial liability insurance that Lessee is required to carry pursuant this Lease shall include coverage of the foregoing contractual indemnity. The provisions of this paragraph 10.A. shall survive the expiration or any termination of this Lease. Lessee's Insurance Lessee will throughout the Term and any Renewal Terms (and any other period when Lessee is in possession of the Leased Premises or has failed to comply with the requirements of paragraph 14 of this Lease) carry and maintain, at its sole cost and expense, the following types of insurance, which shall provide coverage on an occurrence basis, with respect to the Leased Premises, in the amounts specified with deductible amounts reasonably satisfactory to Lessor: (1) Commercial General Liability Insurance. Commercial general liability ("CGL") insurance covering claims arising from personal injury, death and property damage with minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 general aggregate and insuring against legal liability of the insured with respect to the Leased Premises or arising out of the maintenance, use or occupancy thereof The CGL policy shall include contractual liability coverage of all such liabilities arising pursuant to this Lease. (2) Comprehensive Automobile Liability Insurance. Comprehensive automobile liability insurance with a Limit of not less than $1,000,000.00 per occurrence for bodily injury, $500,000.00 per person and $100,000.00 property damage or a combined single limit of $1,000,000 for both owned and non -owned vehicles. (3) Excess Liability Insurance. Lessee shall also carry and maintain umbrella liability insurance with a limit of not less than $4,000,000.00 per occurrence. (4) Property Insurance. None. (5) Workers' Compensation and Employers' Liability Insurance. Workers' Compensation Insurance covering all employees of Lessee, as required by the laws of the State of Florida and Employers' Liability coverage subject to a limit of no less than $500,000 each employee, $500,000 each accident, and $1,000,000 policy limit. (6) Policy Form. All policies referred to above shall: (i) be taken out with insurers licensed to do business in Florida having an A.M Best's rating of A-, Class IX, or otherwise approved in advance by Lessor; (ii) name Lessor, BRIGHTLINE and the Railway as additional insured; (iii) be non-contributing with, and shall apply only as primary and not as excess to any other insurance available to Lessor, BRIGHTLINE and the Railway or any mortgagee; (iv) have all railroad exclusions removed, and (v) contain an obligation of the insurers to notify Lessor, BRIGHTLINE and the Railway by certified mail not less than thirty (30) days prior to any material change, cancellation, or termination of any such policy. Certificates of insurance on Lessor's standard form or, if required by a mortgagee, copies of such insurance policies certified by an authorized officer of Lessee's insurer as being complete and current, shall be delivered to Lessor prior to Lessee's use of the Leased Premises hereunder and promptly upon request. If Lessee fails to deliver the required certificates or certified policies, fails to take out or to keep in force any insurance required hereunder, or should any such insurance not be approved by Lessor or any mortgagee, then Lessor has the right, without assuming any obligation in connection therewith, to procure such insurance at the sole cost of the Lessee, and all outlays by Lessor shall be paid by the Lessee to Lessor without prejudice to any other rights or remedies of Lessor under this Lease. Lessee shall not keep or use in the Leased Premises any article that may be prohibited by any fire, casualty or other insurance policy in force from time to time covering the Leased Premises. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLM to confirm whether or not the insurance maintained by Lessee is in compliance with the terms of this Lease, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any non-compliance issues identified by the Railway and/or BRIGHTLINE. C. Claims Handling If a claim or action is made or brought against either party and for which the other party may be responsible hereunder in whole or in part, such other party shall be notified and permitted to participate in the handling or defense of such matter. 11. Purpose of Lease The premises shall be used only for the purpose of )Insert description of use). 12. No Interference with Railway and/or BRIGHTLINE Operations. Reservation of Rights The Lessee's use and/or maintenance of the Leased Premises shall not in any way, or at any time, interfere with or obstruct the use of the Leased Premises or of the ROW by Lessor, BRIGHTLINE or the Railway or their respective agents, employees, patrons or assigns. The Lessee will not discharge surface water upon any portion of the ROW or any of the Railway's or BRIGHTLINE's property and/or railroad tracks and Lessee hereby expressly releases Lessor, BRIGHTLINE and the Railway from liability for any surface water flowing across the ROW. Lessee further agrees not to alter the Leased Premises so as to cause water to drain or flow onto the ROW or any of the Railway's or BRIGHTLINE's property nor so as to cause an undermining ofthe ROW or any adjacent property. Lessee shall notify Lessor before performing any work on the Leased Premises. Notification shall be made to FEC ROW LLC, Attn: Craig Olson, 7411 Fullerton Street, Suite 301, Jacksonville, Florida 32256. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not the Railway and/or BRIGHTLINE objects to any such work, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any issues identified by the Railway and/or BRIGHTLINE with respect to such work. If Railway or BRIGHTLINE requires a railway watchman or flagman be present while work is performed on the Leased Premises, the Railway or BRIGHTLINE will provide such watchman or flagman at Lessee's sole cost and expense. Lessee shall not have or assert any claim or demand whatsoever for compensation or damages to the Leased Premises or to any improvements now or hereafter erected or property located thereon which may be caused by the operation, maintenance, repair, relocation, or removal of the Railway's or BRIGHTLINE's railroad, their respective operations or which may be caused by vibration resulting from the operation of said railroad and Lessee releases Lessor, BRIGHTLINE and the Railway from any liability for any such damage. Unless specifically set forth in this Lease, no right of way, expressed or implied, over the ROW is granted by this Lease. It is understood between the parties hereto that Lessor reserves unto itself, its successors, permittees, licensees, or other persons, the right to construct and maintain other facilities, including but not limited to pipelines and/or communication cables, over, under and across the Leased Premises, and further, that Lessee shall take no measures to interfere with the construction or maintenance of said facilities and shall at all times allow ingress and egress to the Leased Premises by Lessor, BRIGHTLINE, the Railway and their respective successors, permittees, licensees or other persons provided that such shall not unreasonably interfere with Lessee's use of the Leased Premises in accordance with the terms hereof. Lessee acknowledges that the Leased Premises may contain fiber optic communication systems, railway signal and train control cables and other utilities. Prior to any digging or subgrade work on the leased premises, Lessee must notify Lessor and call SUNSHINE for utility locations at 1-8004324770 and the Railway Signal Department at 1-800-342-1131 ext 2377 for signal and train control cable locations. Proper notification is required for cable locations and field inspections to protect against damages. Termination Either party may, in its discretion, for any reason whatsoever, terminate this Lease at any time by the giving of 30 days prior written notice to the other party. Notwithstanding the foregoing, until the requirements of Paragraph 14 of this Lease are met by Lessee, such termination shall not in any way release Lessee from any of its obligations under this Lease, including but not limited to Lessee's obligations to pay Rent and other charges and fees and maintain insurance, each in accordance with the terms and conditions of this Lease. 14. Condition of Premises on Termination The Lessee shall not mutilate, damage, misuse, or alter, the Leased Premises, but shall keep the same in good condition and repair. Any and all repairs, alterations or improvements made on the Leased Premises by Lessor at Lessee's request shall be at Lessee's sole cost and expense unless otherwise expressly agreed in writing. Except as otherwise set forth herein, upon the termination or expiration of the Lease, Lessee shall surrender the Leased Premises to Lessor in condition acceptable to Lessor. Prior to termination or expiration of this Lease, Lessee shall properly remove all trash, debris, and other waste materials from the Leased Premises. If Lessee is not then in default and if the personal property of Lessee on the Leased Premises (the "Lessee's Property") is not then subject to any other rights, liens or interests of Lessor or if removal is not prohibited by law, Lessee shall also properly remove Lessee's Property prior to termination or expiration of this Lease. If Lessee is in default or Lessee's Property is subject to any other rights, liens or interest of Lessor, then Lessee shall remove only such of Lessee's Property as Lessor shall direct. In addition, if Lessor so directs Lessee shall remove any other property on the Leased Premises, whether such property was placed on the Leased Premises by Railway, BRIGHTLINE, Lessor or others and whether it was placed on the Leased Premises prior to or during the Lease term (the "Additional Property"). In no event, however, shall Lessee remove any of the following materials or equipment unless Lessor directs otherwise in writing: any power wiring or power panels; lighting or lighting fixtures; millwork and cabinetry; wall coverings; drapes, blinds or other window coverings; carpets or other floor coverings; heaters, air conditioners, or any other heating or air conditioning equipment; fencing or security gates; plumbing fixtures, water fountains; or other similar building operating equipment and decorations, structures, foundations, concrete, asphalt or fencing (collectively, "Fixtures'). Should Lessor direct Lessee to remove any or all of the Fixtures, whether such Fixtures were placed on the Leased Premises by Lessee, Railway, BRIGHTLINE, Lessor or others prior to or during the Lease term, Lessee shall properly remove such Fixtures prior to termination or expiration of this Lease. The removal of Lessee's Property, the Additional Property and the Fixtures shall be at Lessee's sole cost and expense. Lessee shall repair, at Lessee's expense, any damage to the Leased Premises caused by the removal of any of Lessee's Property, the Additional Property or the Fixtures. If Lessee fails to remove Lessee's Property, the Additional Property or the Fixtures, in addition to the payment requirements set forth in paragraph 3 hereof, at Lessor's option all or part of Lessee's Property, the Additional Property and/or the Fixtures will become the property of Lessor and/or at Lessor's option, Railway or BRIGHTLINE may cause removal of all or part of Lessee's Property, the Additional Property and/or the Fixtures from the Leased Premises and/or storage thereof The reasonable cost or expense of removal and/or storage of any of Lessee's Property, Additional Property or Fixtures shall be paid by Lessee to Lessor forthwith upon demand for same. 15. Lessee Improvements Lessee will not erect or cause to be erected any building or other structure, and will not make or allow to be made any alterations in or to the Leased Premises, including, without limitation, the planting or installation of any trees, plants, shrubbery or other vegetation (collectively, the "Alterations") without first obtaining the written consent of Lessor, which consent may be granted or withheld in Lessor's sole discretion. Lessor may require Lessee to provide demolition and/or lien and completion bonds in form and amount satisfactory to Lessor. All Alterations shall be accomplished in a good and workmanlike manner at Lessee's sole expense, in conformity with all applicable laws by a licensed and bonded contractor approved in advance by Lessor, such approval of contractor not to be unreasonably withheld. All contractors working on Alterations shall carry workers' compensation insurance, commercial general liability insurance, automobile insurance and excess liability insurance in amounts reasonably acceptable to Lessor and shall deliver a certificate of insurance evidencing such coverages to Lessor prior to commencing work on the Leased Premises. Upon completion of any such work, Lessee shall provide Lessor with "as built" plans, copies of all construction contracts and/or landscape contracts, and proof of payment for all labor and materials. All legal and consulting' 10 fees and expenses incurred by Lessor in connection with Lessee's improvement plans and/or landscape plans, pursuant to this paragraph, together with any legal and consulting' fees and disbursements incurred in the review of any improvement plans, landscape plans, "as -built" plans, construction contracts, landscape contracts or any other documentation, will be paid by Lessee within thirty (30) days of invoice for payment thereof, as Additional Rent. Any Alterations to the Leased Premises made by or installed by either party hereto will remain upon and be surrendered with the Leased Premises and become the property of Lessor upon the expiration or earlier termination of this Lease without credit to Lessee; provided, however, Lessor, at its option, may require Lessee to remove or repair any Alterations to restore the Leased Premises to the condition existing at the time Lessee took possession, with all costs of removal, repair, restoration, or alterations, including, without limitation, removal of any trees, plants, shrubbery and vegetation to be home by Lessee. This clause will not apply to moveable equipment, furniture moveable trade fixtures, or other personal property owned by Lessee, which shall be considered Lessee's Property for purposes of paragraph 14 and shall be removed by Lessee in accordance with Paragraph 14. Lessee will have no authority or power, express or implied, to create or cause any construction lien or mechanics' or materialmen's lien or claim of any kind against the Leased Premises or any portion thereof or any portion of the ROW. Lessee will promptly cause any such liens or claims to be released by payment, bonding or otherwise, but in any event not more than thirty (30) days after request by Lessor, and will indemnify Lessor, BRIGHTLINE and the Railway against losses arising out of any such claim including, without limitation, legal fees and court costs. NOTICE IS HEREBY GIVEN THAT LESSOR, BRIGHTLINE AND THE RAILWAY WILL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIAL FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER LESSEE, AND THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR SERVICES OR MATERIALS WILL ATTACH TO OR AFFECT THE INTEREST OF LESSOR BRIGHTLINE AND/OR THE RAILWAY IN THE PREMISES. LESSEE WILL DISCLOSE THE FOREGOING PROVISIONS TO ANY CONTRACTOR ENGAGED BY LESSEE PROVIDING LABOR, SERVICES OR MATERIAL TO THE LEASED PREMISES. Lessee agrees and acknowledges that Lessor intends to consult with the Railway and BRIGHTLINE to confirm whether or not the Railway and/or BRIGHTLINE objects to any proposed Alterations, and upon the written request of Lessor, Lessee shall work directly with the Railway and/or BRIGHTLINE to resolve any issues identified by the Railway and/or BRIGHTLINE with respect to any such proposed Alterations. 16. Assignment Lessee will not assign this Lease, in whole or in part, or sublease the Leased Premises, in whole or in part, without the prior written consent of Lessor, which consent may be granted or withheld in Lessor's sole discretion, and in no event will Lessee be released from any obligation or liability under this Lease following any such assignment or sublease. Along with Lessee's request to Lessor to assign this Lease or sublease the Leased Premises, Lessee shall provide, along with any other information and documentation that Lessor may request, a copy of the proposed assignment or sublease. No assignee or sublessee of the Leased Premises or any portion thereof, may further assign or sublease its interest in the Leased Premises or any portion thereof. All legal fees and expenses incurred by Lessor in connection with the review by Lessor of Lessee's requested assignment or sublease pursuant to this paragraph, together with any legal fees and disbursements incurred in the preparation and/or review of any documentation, will be paid by Lessee within thirty (30) days of invoice for payment thereof, as Additional Rent, but in no event, prior to execution by Lessor of the Assignment. If the rent due and payable by any assignee or sublessee under any permitted assignment or sublease exceeds the Base Rent payable under this Lease for such space, Lessee will pay to Lessor all such excess rent and other excess consideration within ten (10) days following receipt thereof by Lessee. 17. INTENTIONALLY OMITTED 18. Care Around Tracks Lessee shall adopt, monitor and enforce reasonable rules and regulations for the conduct of Lessee's employees, patrons, agents and contractors (including employees thereof) or any other persons using the Leased Premises to protect them from injury while on, about or near any track on or adjoining the Leased Premises and/or the ROW. 19. Destruction or Damage to Leased Premises If the Leased Premises (which shall not include Lessee's Property or property of a third party) are at any time materially damaged or destroyed by fire or other Acts of God preventing all use of the Leased Premises by Lessee for the purposes set forth in this Lease and the extent of such damage or destruction does not in any way result or arise from the acts or failure to act of Lessee, its employees, agents, invitees, visitors, customers, assignees, sublessees, contractors or subcontractors, Lessor shall have sixty (60) days from such damage or destruction to determine in its sole discretion and inform Lessee whether Lessor will restore the Leased Premises (excluding any Alterations and/or other improvements constructed by Lessee) to substantially the condition that existed immediately prior to the occurrence of the casualty. If Lessor determines not to restore the Leased Premises, it will notify Lessee and Lessee's sole remedy shall be to terminate the Lease upon 30 days prior written notice to Lessor. If Lessor elects to restore the Leased Premises (excluding any Alterations and/or other improvements constructed by Lessee), it will give Lessee its reasonable estimation of the time it will take to restore the Leased Premises. If in Lessor's reasonable estimation, the Leased Premises cannot be restored within two hundred forty (240) days of such damage or destruction, then either party may terminate this Lease by written notice to the other party. Subsequent to Lessor's determination to restore the Leased Premises as set forth herein, and until such restoration of the Leased Premises is complete, there shall bean abatement of the Base Rent. If all or part of the Leased Premises may be used by Lessee for the purposes set forth in this Lease during the period of such restoration, there will be no abatement of Base Rent. In addition, if the damage or destruction was caused by or increased in any way by the acts or failure to act of Lessee, its employees, agents, invitees, visitors, customers, assignees, sublessees, contractors or subcontractors, then Lessee shall be solely responsible for promptly returning the Leased Premises to their former condition and there will be no abatement of Base Rent. 20. Default (a) DEFAULT. The following will be events of default by Lessee under this Lease: (1) Failure to pay when due any installment of Rent or any other payment required pursuant to this Lease; (2) Failure to deliver, maintain and/or timely restore the Security Deposit required under this Lease; (3) Failure to obtain and maintain the insurance required under this Lease; (4) The filing of a petition for bankruptcy or insolvency under any applicable federal or state bankruptcy or insolvency law; an adjudication of bankruptcy or insolvency or an admission by Lessee that it cannot meet its financial obligations as they become due, or the appointment of a receiver or trustee for all or substantially all of the assets of Lessee; the foregoing shall also apply to any guarantor of this Lease (a "Guarantor"), if any; (5) A transfer in fraud of creditors or an assignment for the benefit of creditors, by Lessee or any Guarantor; (6) Any act which results in a lien being filed against all or a portion of the Leased Premises or the ROW; (7) The liquidation, termination or dissolution of Lessee or any Guarantor of this Lease, or, if Lessee or any Guarantor is a natural person, the death of Lessee or such Guarantor, and (8) Failure to cure any breach or default of any provision of this Lease (excluding any provision dealing with payment of Rents or any other payments hereunder and/or any other provisions dealing with the matters contemplated by subsections (1)-(7) above) within 20 days after written notice thereof to Lessee. (b) REMEDIES. In the event of any default hereunder by Lessee, then without prejudice to any other rights which it has pursuant to this Lease or at law or in equity, Lessor shall have the following rights and remedies, which are cumulative and not alternative: (1) Lessor may terminate this Lease by notice to Lessee and retake possession of the Leased Premises for Lessor's account. Lessee shall then quit and surrender the Leased Premises to Lessor in accordance with the requirements of this Lease. Lessee's liability under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry, repossession, or disposition hereunder, including to the extent legally permissible, payment of all Rent and other charges until the date this Lease would have expired had such termination not occurred and the surrender of the Leased Premises in accordance with the requirements of this Lease. If Lessor so elects, Rent may be accelerated and Lessee shall pay Lessor damages in the amount of any and all sums that would have been due for the remainder of the Initial Term and/or any Renewal Term. 12 13 (2) Lessor may enter the Leased Premises as agent of the Lessee to take possession of any property of the Lessee on the Leased Premises, to store such property at the expense and risk of Lessee or to sell or otherwise dispose of such property in such manner as Lessor may see fit without notice to Lessee. Lessor shall not be liable in any way in connection with its actions pursuant to this section, to the extent that its actions are in accordance with applicable law. (3) Lessor may relet all or any part of the Leased Premises for all or any part of the unexpired portion of the term of this Lease or for any longer period, and may accept any Rent then attainable; grant any concessions of Rent, and agree, at Lessee's expense, to paint or make any special repairs, alterations, and decorations for any new lessee as it may deem advisable in its sole and absolute discretion. Lessor shall be under no obligation to relet or to attempt to relet the Leased Premises greater than that imposed by applicable law. (4) Lessor may remedy or attempt to remedy any default of the Lessee under this Lease for the account of the Lessee and Lessor (and its agents and/or representatives) may enter upon the Leased Premises for such purposes. No notice of Lessor's intention to perform such covenants need be given. Lessor shall not be liable to Lessee for any loss or damage caused by acts of Lessor in remedying or attempting to remedy such default and Lessee shall pay to Lessor all expenses incurred by Lessor in connection with remedying or attempting to remedy such default Any expenses incurred by Lessor shall accrue interest from the date of payment by Lessor until repaid by Lessee at the highest rate permitted by applicable law. (c) COSTS. Lessee shall pay to Lessor on demand all costs incurred by Lessor, including reasonable attorneys' fees and costs, (whether incurred in preparation for or at trial, on appeal, or in bankruptcy), incurred by Lessor in enforcing any of the obligations of Lessee under this Lease. In addition, upon any default by Lessee, Lessee shall also be liable to Lessor for the expenses incurred by Lessor in connection with re-entering the Leased Premises, reletting the Leased Premises and putting the Leased Premises into the condition necessary for such reletting (including attorneys' fees and disbursements, marshall's fees, and brokerage fees, in so doing), and any other expenses reasonably incurred by Lessor. (d) WAIVER No delay or omission by Lessor in exercising a right or remedy shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default. (e) DEFAULT BY LESSOR. In the event of any default by Lessor of any material term of this Lease, Lessee will give Lessor written notice specifying such default with particularity, and Lessor shall have a period of thirty (30) days following the date of such notice in which to commence the appropriate cure of such default If Lessor fails to commence and diligently pursue the appropriate cure of such default after such notice or complete same within a reasonable period of time, Lessee may terminate this Lease upon written notice to Lessor. Notwithstanding any provision of this Lease, Lessor shall not at any time have any personal liability under this Lease, and Lessee's sole remedy with respect thereto shall be termination of the Lease. Hold Over If Lessee remains in possession of the Premises after expiration of the Term without Lessor's written consent and without any express written agreement between the parties on an extension of the Term, Lessee shall be a tenant at sufferance as provided in § 83.04, Florida Statutes, and such tenancy shall be subject to the provisions thereof, except that Base Rent during the holdover period shall be one hundred fifty percent (150%) of the final payment of Base Rent in effect during the final month of the Term. Nothing in this paragraph shall be construed as the consent of Lessor to Lessee's possession of the Premises after the expiration of the Term. In addition to and not limiting any other rights or remedies which Lessor may have on account of Lessee holding over without written consent of Lessor, Lessee shall be liable for any and all direct and consequential damages incurred by Lessor on account of such unapproved holding over including claims by tenants entitled to future possession. 22. Condemnation If all or a portion of the Leased Premises shall be taken by public or quasi -public authority under any power of eminent domain or condemnation, this Lease, at the option of Lessor, shall forthwith terminate and the Lessee shall have no claim or interest in or to any award of damages for such taking. Quiet Enioyment If Lessee pays the Rent and all other charges and fully performs all of its obligations under this Lease, Lessee shall be entitled to peaceful and quiet enjoyment of the Leased Premises for the full term without interruption or interference by Lessor or any person claiming through Lessor. 24. No Waiver or Modification None of the provisions hereof shall be waived or modified, except by mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor subsequent verbal waiver, or modification, shall be binding under any circumstances. This Lease constitutes the entire understanding of the parties and neither the failure of Lessor to enforce each and every provision, nor any course of conduct by Lessor shall be considered as a waiver of these provisions. 25. Successors and Assiens 14 15 The provisions hereof shall be binding upon and inure to the benefit of the successor, executors, administrators and permitted assigns of the respective parties. 26. SMial Notice Regarding Radon Gas Lessee is hereby notified that radon gas is a naturally occurring radioactive gas that, when accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over a period of time. Levels of radon that exceed federal and state guidelines have been found in buildings in the State of Florida. Lessee is further notified that additional information regarding radon gas, and the testing for radon gas, may be obtained from the Public Health Units of the various counties. 27. Restrictions Lessee agrees that no plants, shrubbery, trees or other vegetation that would obstruct the view of motor vehicles or train crews using a crossing at grade, or interfere with the operation of trains, will be placed on the Leased Premises. In addition to the above restriction, no plants, shrubbery, trees or other vegetation having a height of more than two (2) feet will be placed within two hundred and fifty (250) feet of any at grade street crossing, and if such vegetation exceeds two (2) feet in height, Lessor, BRIGHTLINE or the Railway may trim such vegetation to a two (2) foot height at Lessee's expense. Plants, shrubbery, trees or other vegetation shall be trimmed by Lessee so as to maintain a distance from the centerline of the nearest track of twenty-five (25) feet and if such vegetation is closer than twenty-five (25) feet from the centerline of the nearest track, Lessor, BRIGHTLINE or the Railway may trim or remove such vegetation so that no vegetation is within twenty-five (25) feet of the centerline of the nearest track at Lessee's expense. This restriction in no way limits the indemnification requirements set forth in this Lease. Also, no plants, shrubbery, trees or other vegetation of a hazardous or noxious nature that might produce injury to any person coming in contact with said plants, shrubbery, trees or other vegetation will be placed upon the Leased Premises, the ROW or any adjacent property by Lessee. The placement of any wells by Lessee on the Leased Property, the ROW or any adjacent property is strictly prohibited. 28. Notices Any notice, request or communication (a "Notice") to be given or to be served upon any party hereunder, in connection with this Lease, must be in writing and must be given by certified or registered mail and shall be deemed to have been given and received when a certified or registered letter, containing such Notice, properly addressed, with postage prepaid, is deposited in the U.S. Mail; or, if given otherwise than by certified or registered mail, it shall be deemed to have been given when delivered to and received by the party to whom it is addressed. Such Notices shall be addressed to the parties herein at the following addresses: TO LESSOR: Craig Olson, Vice President 7411 Fullerton Street, Suite 301 Jacksonville, Florida 32256 WITH A COPY TO RAILWAY: General Counsel Florida East Coast Railway, L.L.C. 7411 Fullerton Street, Suite 300 Jacksonville, Florida 32256 TO LESSEE: [Insert Lessees Name & Address] WITH A COPY TO: [Insert Name & Address, if required] Any Notice hereunder shall also be made or given to the extent required by Section I B hereof. 29. Governing Law This Lease shall be governed by the laws of the State of Florida In the event any suit, action or proceeding is brought by either party with respect to this Lease, such action, suit or proceeding shall be brought in any federal or state court located in Duval County, Florida. 30. Cancel and Supersede As of the date of this Lease, this Lease supersedes that certain Lease Agreement by and between the parties hereto dated [Insert Date or N/A]. 31. Illep-ality If any provision of this Lease shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 32. Security Deposit Upon the execution of this Lease by Lessee, and prior to the execution of this Lease by Lessor, Lessee shall remit to Lessor a security deposit in the amount of [Insert Deposit Amount] in cash or certified check or cashiers check (the "Security Deposit"). The Security Deposit represents security for the faithful performance and observance by Lessee of each and every term of this Lease. Lessor may apply all or part of the Security Deposit to any unpaid Rent asset forth in paragraph 3 of this Lease or any other charges due from Lessee under this Lease, or to cure any other default of Lessee. The Security Deposit shall not constitute liquidated damages. If Lessor uses any part of the Security Deposit, Lessee shall restore the Security Deposit to its full amount within ten (10) days after notice from Lessor. No interest shall accrue to or for the benefit of Lessee on the Security Deposit. Lessor shall not be required to keep the Security Deposit separate from its other accounts, and no bust relationship is created with respect to the Security Deposit. Lessor shall not be obligated to return the Security Deposit to Lessee upon the expirations or earlier termination of the Lease unless and until all of the following events occurs: (i) the payment in full of all Rent and other chargers due pursuant to the Lease and (ii) compliance with the terms and conditions of Sections 14 and 15 hereof including, without limitation, the repair of any and all damage to the Leased Premises. 16 17 33. Time is of the Essence. TIME IS OF THE ESSENCE OF THIS LEASE AND ALL PROVISIONS CONTAINED HEREIN. 34. Waiver of Trial by Jury. LESSOR AND LESSEE HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE. 35. Counterparts. This Lease maybe executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties, it being understood that all parties need not sign the same counterpart- The parties agree that a scanned or electronically reproduced copy or image of this Lease shall be deemed an original. llllllllllllllllllll/lIl//lllllllllllllllllll/llll/llllllllllllllll//llll/lll/ll1/lllllll/l/l/llllllllll/llllllllllll/l/ll/ll1/lllllllllll! Signed, sealed and delivered FEC ROW LLC A Florida Limited Liability Company in the presence of: By: Witness as to Lessor Title: Witness as to Lessor Date of Execution: [NAME OF LESSEE] By: (SEAL) Witness as to Lessee (Print Name) Title; (Print Name) Witness to Lessee (Print Name) _ Date of Execution: 18 19 EXHIBIT A LEGAL DESCRIPTION OF LEASED PREMISES 20 IN THE UNTIED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MARTIN COUNTY, FLORIDA, et al., Plaintiffs, v. U.S. DEPT. OF TRANSPORTATION, et al., Defendants. Civil Action No. 1: 1 8-cv-00333-CRC JOINT STIPUL• ATION OF DISMISSAL WITH PREJUDICE Pursuant to Federal Rule of Civil Procedure 41(a)(]XAxii), the Plaintiffs, Defendants, and Intervenor AAF Holdings LLC hereby stipulate to the dismissal of this action with prejudice, with each party to bear its own attorneys' fees and costs. Respectfully submitted on November _ 2018 /s/ Stephen M an Stephen M. Ryan (D.C. Bar No. 359009) The McDermott Building 500 North Capitol Street, N.W. Washington, D.C. 20001 Telephone: 202-756-8000 Email: sryan@mwe.com Attorneys for Plaintiffs Martin County and CARE FL /s/ Barbara MR. Martin Barbara M.K Martin United States Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20004 Telephone: (202) 305-0240 Fax: (202) 305-0506 Email: barbara.marvin@usdoj.gov Attorneys for Defendants /s/ Philip E Karel Philip E. Karel (Dist Ct. Bar No. NY0196) 1290 Avenue of the Americas New York, New York 10104-3300 Telephone: 212-541-2311 Email: pekarmel@bclplaw.com Attorneys for Plaintiffs Indian River County and Indian River County Emergency Services District /s/ Cynthia L Taub Cynthia L. Taub (D.C. Bar No. 445906) Steptoe & Johnson LLP 1330 Connecticut Ave., NW Washington, D.C. 20036 Telephone: (202) 429-3000 ctaub@steptoe.com Attorneys for Intervenor AAFHoldings LLC NOTICE OF SPECIAL CALL MEETING NOTICE IS HEREBY GIVEN that the Board of County Commissioners of Indian River County, Florida, will hold a Special Call Meeting to consider The Special Call Meeting will be held on at a.m./p.m. in the County Commission Chambers located on the first floor of Building A of the County Administrative Complex, 1801 27th Street, Vero Beach, Florida 32960. Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence Upon which the appeal will be based. Anyone who needs a special accommodation for this meeting may contact the County's Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 at least 24 hours in advance of the meeting. INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS PETER D. O'BRYAN, CHAIRMAN Thermal Sciences Florida East Coast Railway FECR Movement of E ELNG ISO Containers by Rail Quantitative Risk Analysis (QRA) Considering LNG Position in Train and Train Speed Exponent Project No. 1308194.001 Exponent' Failure Analysis Associates" Florida East Coast Railway F ME C R Movement of LNG (b) (4) ISO Containers by Rail Quantitative Risk Analysis (QRA) Considering LNG Position in Train and Train Speed Exponent Project No. 1308194.001 Prepared for Florida East Coast Railway, LLC 7150 Phillips Highway Jacksonville, Florida 32256 Prepared by Exponent, Inc. 4580 Weaver Parkway, Suite 100 Warrenville, Illinois 60555 December 8, 2016 ❑ Exponent, Inc. 1308194A00 - 5691 Contents Page List of Figures v List of Tables x Acronyms and Abbreviations xiii Executive Summary xiv 1 Introduction 1 1.1 Understanding Risk 2 Developing Quantitative Risk Criteria 3 Individual Risk Criteria 4 Societal Risk Criteria 5 1.2 LNG Hazards 7 1.3 Robustness of FECR Engineering and Administrative Safeguards 8 2 Systems Description 10 _ 2.1 ISO Tank Containers 10 2.2 Intermodal Facility Operations 14 Aerial Views of Intermodal Facilities 16 2.3 LNG ISO Movement Routes 21 3 Methodology 24 3.1 Estimating Accident Rates and LOC Probabilities 27 Lifting Accident Rates and LOC Probabilities 27 Train Accident Rates 28 Derailment Probability for LNG ISO -Containing Well Cars 31 Derailment of LPG Rail Cars 39 ISO LOC Probabilities 40 LPG Rail Car LOC Frequency 43 Multiple LNG ISO LOC Events 44 Multiple LPG Rail Car LOC Frequency 48 3.2 Flanumble Cloud Formation 48 3.3 Ignition of a Flammable Cloud 50 Probability of Immediate Ignition 51 Probability of Delayed Ignition 51 3.4 Flammable Effects on a Population 52 Flammable Effects Event Trees 4 Release Scenario Frequencies 56 1308194.001 - 5691 ii 54 4.1 LNG ISO Container Lifting Accidents 56 4.2 Train Movement Accidents in Intermodal Facilities and Rail Yards 57 4.3 Train Accidents on the Mainline and Port Lead Tracks 60 5 Release Location Assumptions 64 5.1 Hialeah Yard Releases 64 5.2 Port of Miami Intermodal Facility Releases 66 5.3 Port Everglades Intermodal Facility Releases 67 5.4 Bowden Yard Releases 68 5.5 Route 1 — Hialeah to Port of Miami 69 5.6 Route 2 — Hialeah to Port Everglades 69 5.7 Route 3 — Hialeah to Bowden Yard 69 6 Potentially Affected Populations 70 6.1 Hialeah Yard Populations 70 6.2 Port of Miami Populations 72 6.3 Port Everglades Populations 74 6.4 Bowden Yard Populations 76 6.5 Main Line Track Populations 78 6.6 Port of Miami Lead Track Populations 80 1308194.001 - 5591 iii 6.7 Port Everglades Lead Track Populations 81 7 Weather and Terrain 82 8 Results 83 8.1 LNG ISO Shipping Baseline Risk 83 Train Speeds Less Than 25 mph 84 Train Speeds between 25 mph and 60 mph 87 Rail Yards and Intermodal Facilities 90 8.2 Comparison with LPG Transportation 105 LNG versus LPG Mainline Risks 105 LNG versus LPG Yard/Intermodal Facility Risks 108 8.3 Train Configuration and Risk Reduction for LNG ISO Transportation 111 Mainline LNG ISO Risk — Influence of Train Configuration 112 Rail Yards and Intermodal Facilities LNG ISO Transportation — Influence of Train Configuration 116 8.4 Sensitive Target Analysis 119 9 Limitations 122 Appendix A References Appendix B FECR "Movement of LNG Containers" Document, 10/8/2015 Appendix C FECR "LNG ISO Container Proposed Routes" Document, 10/6/2015 Appendix D LNG ISO and LPG Rail Car Dera1ihwnt and Loss of Containment Event Trees Appendix E FECR Mainline Map with Population Densities Appendix F Societal Risk (SR) FN Curves Appendix G Potentially Sensitive Targets Results for Zone 3 Individual Risk 1308194.001 - 5691 IV List of Figures Figure 1. SR quantitative risk criteria presented on an example FN graph, as provided in NFPA 59A for fixed (stationary) LNG facilities. The definitions of the tolerable risk region, ALARP (As Low as Reasonably Practicable), and unacceptable risk region are provided by NFPA 59A, and do not necessarily reflect the tolerability criteria for transportation risk. The representation of NFPA 59A risk criteria in this report has been done for the purposes of comparing the transportation risk to a set of existing criteria used in the U.S. and may not necessarily be appropriate or applicable for assessing acceptability of transportation risk. Figure 2. General assembly drawing for LNG ■ ISO portable tank containers to be used by FECR. Figure 3. Piping and instrumentation diagram for.ISO portable tank container. Figure 4. _ISO tank container mounted on a trick chassis. Figure 5. Rear view oISO portable tank: container on a trick chassis depicting the va ve cabinet. Figure 6. View of valves and outer tank- penetrations inside valve cabinet. Figure 7. Rubber Tire Gantry (RTG) crane used for Lift On/Lift Off of intermodal containers. Page 7 11 12 13 13 14 15 Figure 8. Container Handler used for Lift On/Lift Off of intermodal containers. 16 Figure 9. Representative well car in FECR intermodal yard contiaining two= IS ortable tank containers. ■ 16 Figure 10. Aerial image of the FECR Hialeah Rail Yard (enclosed in red outline). Trains enter and leave the Hialeah Yard at the right side of the image. North is to the right in the image. The rail yard is surrounded on three sides by a canal. Industrial occupancies are located to the north, west and south. Residential areas are located to the east. 17 Figure 11. Close-up view of the FECR Hialeah Intermodal Facility intermodal ramps (area outlined in red) where containers are lifted on and off of rail cars. 17 Figure 12. Dodge Island, which contains the Port of Miami (enclosed in red outline). The Port includes container ship docks (yellow hashed lines) and cruise ship docks (white hashed lines). 18 v Figure 13. FECR Port of Miami Intermodal Facility (enclosed in red outline) intermodal ramps. 18 Figure 14. Aerial image of the Port Everglades Intermodal Area (enclosed in red outline). North is to the right in the image. The FECR intermodal facility is located to the west (top) of the intermodal container storage area. The Port includes container ship docks (white hashed lines) and cruise ship docks located farther to the north (right side of image). 19 Figure 15. FECR Port Everglades Intermodal Facility (enclosed in red outline) intermodal ramps and container staging area. 19 Figure 16. Aerial image of the FECR Bowden Rail Yard (enclosed in red outline). North is to the lower right in the image. The FECR intermodal facility is located to the north (right) of the yard. 20 Figure 17. FECR Bowden Intermodal Facility (enclosed in red outline) intermodal ramps and container staging area. 20 Figure 18. Route 1 - Hialeah Yard to Port of Miami. FECR route is traced in blue. North is up. 22 Figure 19. Route 2 - Hialeah Yard to Port Everglades. FECR route is traced in blue. North is up. 22 Figure 20. Route 3 - Hialeah Yard to Bowden Yard along the FECR mainline. FECR route is traced in blue. North is up. 23 Figure 21. General approach for risk analysis in the QRA. 26 Figure 22. LNG ISO train accident model overview. 27 Figure 23. Frequency (count) of the first car position -in -train for mainline derailments with train speeds between 25 mph and 60 mph (total count equals 5,149 derailments). 33 Figure 24. Frequency (count) of the first car position -in -train for mainline derailments with train speeds less than 25 mph (total count equals 15,709 derailments). 33 Figure 25. Frequency (count) of the first car position -in -train for yard derailments (total count equals 26,204 derailments). 34 1306194.001 - 5691 vi Figure 26. Schematic representation of the blocking of LNG ISOs into consist configurations C-1 to C-7. 36 Figure 27. Flow chart describing the LNG ISO LOC probability estimation approach. 43 Figure 28. Block diagram for PHAST. Figure 29. PHAST Risk consequence event trees for a continuous release with liquid ramout. Figure 30. Event tree for yard movement for train Configuration 1 (C-1). "Outcome Event Frequency" is the product of the "Initiating Event Frequency," "Derailment Probability," "Multiple ISO Accident Probability," and "Release Probability." Figure 31. Aerial view of the Hialeah Yard. The train route along the outside yard rail lines is red and a representative location of lifting operations is shown as a green dot. Figure 32. Aerial view of the Hialeah Yard. The train route through the yard is red and the range of lifting operations along the intermodal ramp is shown as a green line. Figure 33. Aerial view of Port of Miami. The yard rail line is red and the approximate 50 55 59 65 65 location of lifting operations is represented as a green dot. 66 Figure 34. Aerial view of the Port Everglades intermodal facility. The yard rail line is red and the approximate location of lifting operations is represented as a green dot. 67 Figure 35. Aerial view of the Bowden Yard. The yard rail line is red and the approximate location of the lifting operations is represented as a green dot. 68 Figure 36. Aerial view of the Hialeah Yard depicting the four consolidated census blocks used to represent nearby populations. 71 Figure 37. Aerial view of the Port of Miami depicting the three distinct population densities. 73 Figure 38. Aerial view of the Port Everglades intermodal facility depicting the four distinct population densities. 75 1308194.001 - 5691 vii Figure 39. Aerial view of the Bowden Yard depicting the five consolidated census blocks used to represent nearby populations. 77 Figure 40. Average population density per latitudinal mile from the Bowden Yard to the Hialeah Yard. 79 Figure 41. Aerial image of the route between Hialeah Yard and the Port of Miami. 80 Figure 42. Representative graphical output of IR versus distance from PHAST Risk for slow train speed, train configuration C-1, and the highest population density of 11,800 people per square mile. The peak value is located at the route. The IR drops in a parabolic fashion moving perpendicularly away from the route. 85 Figure 43. FN curve for the baseline train configuration C-1 mainline train movement for train speeds less than 25 mph along the highest population density portion of the mainline (at 11,800 people/mile2). 86 Figure 44. Representative graph of IR versus distance for high speed train, train configuration C-1, and a population density of 11,800 people per square me. The peak value is located at the route. The IR drops in a parabolic fashion moving perpendicularly away from the route. 88 Figure 45. FN curve for the baseline train configuration C-1 mainline train movement for train speeds between 25 mph and 60 mph along the highest population density portion of the mainline (at 11,800 people/mile2). 89 Figure 46. The IR contours for the Hialeah Yard and baseline train configuration C -I using Route A. 93 Figure 47. The IR contours for the Hialeah Yard and baseline train configuration C-1 using Route B. 94 Figure 48. FN curve for Route A at the Hialeah Yard and baseline train configuration C-1. 95 Figure 49. The IR contours for the Port of Miami intermodal facility and baseline train configuration C-1. North is up. 97 Figure 50. FN curve for the Port of Miami intermodal facility and baseline train 1308194.001 - 5691 viii configuration C-1. 98 Figure 51. The IR contours for Port Everglades intermodal facility and baseline train configuration C-1. North is up. 100 Figure 52. FN curve for the Port Everglades intermodal facility and baseline train configuration C-1. 101 Figure 53. The cumulative IR contours for the Bowden Yard for baseline train configuration C-1. North is up. 103 Figure 54. FN Curve for the Bowden Yard for baseline train configuration C-1. 104 Figure 55. FN curve comparison for LNG ISOs and LPG rail car movement, for speeds less than 25 mph for the anticipated highest population density along FECR's rail. 107 Figure 56. FN curve comparison for LNG ISOs and LPG rail car movement, for speeds between 25 mph and 60 mph for the anticipated highest population density along FECR's rail. 107 Figure 57. Comparison of IR contours for the movement of LNG ISOs and LPG in the Hialeah Yard. 109 Figure 58. FN curve comparison for LNG ISOs and LPG train movements in the Hialeah Yard. Note that Lift On/Lift Off was not considered for LPG; the risk corresponds to only train movements in the yard. 110 Figure 59. Comparison of FN curves for mainline train speeds less than 25 mph for four train configurations. 113 Figure 60. Comparison of FN curves for mainline train speeds between 25 mph and 60 mph for seven train configurations. 115 Figure 61. Composite aerial maps with Zone 3 contour depicted for Route 1 for the last two maps including the Port of Miami. 121 ,306, 94.00, - 5691 iX List of Tables Table 1. Quantitative risk criteria for IR contours as provided by NFPA 59A (2016). Table 2. N ISO tank container design parameters. (4) Table 3. Routes and estimated mileage. Table 4. Lifting operation LOC rate due to drops. Table 5. Analysis of train accidents from FRA data. Table 6. Train accident rates from FRA data. Table 7. Calculated annual accident frequencies for the mainline portion of the 3 FECR routes. Table 8. Represerntaative probability of first car derailed for Class 1 and 2 Railroads (1995-2015). Table 9. Train configurations evaluated in the analysis. Table 10. Case 3 - Mainline train accident with derailment for train speeds between 25 mph and 60 mph. Probability of having X number of LNG ISO cars derail in the event of a train accident with derailment, where X is the number of LNG ISOs involved. On average, 11 sequential cars are involved in a derailment for this scenario. Table 11. Case 2 - Mainline train accident with derailment for train speeds less than 25 mph Probability of having X number of LNG ISOs derailing in the event of a train accident with derailment, where X is the number of LNG ISOs involved. On average, 5 cars are involved in a derailment for this scenario. Table 12. Case 1 - Yard train accident with derailment. Probability of having X number of LNG ISOs derailing in the event of a train accident with derailnent, where X is the number of LNG ISOs involved. On average, 4 cars are involved in a derailment for this scenario. Table 13. Mainline train accident with derailment for train speeds less than and equal to 25 mph. On average, 5 cars are involved in a derailment for this scenario. 1309194.001 - 5691 X Page 5 11 21 28 29 30 �Hj 34 35 37 38 38 These derailment probabilities were not used in the analysis but are shown here to illustrate the minimal effect of including the 25 mph data in the low speed case (Case 2). Table 14. Probability of having X number of LPG rag cars derailing in the event of a train accident with derailment, where X is the number of LPG rail cars involved. Table 15. PHMSA pressure tank car incident data from 1971-2014 and equivalent release scenarios based on a sensitivity analysis of spill diameters. Table 16. Rail transport outflow frequencies for LPG rail car accidents. Table 17. Consolidated release scenarios for two LNG ISOs. Table 18. Consolidated release scenarios for three LNG ISOs. Table 19. Consolidated release scenarios for four LNG ISOs. Table 20. Consolidated release scenarios for five LNG ISOs. Table 21. Consolidated release scenarios for six LNG ISOs. Table 22. Consolidated release scenarios for seven LNG ISOs. Table 23. Consolidated release scenarios for eight LNG ISOs. Table 24. Consolidated release scenarios for nine LNG ISOs. Table 25. Consolidated release scenarios for ten LNG ISOs. Table 26. Consolidated release scenarios for two LPG rail cars. Table 27. Consolidated release scenarios for three LPG rail cars. Table 28. Probability of immediate ignition for methane in PHAST Risk Table 29. Model inputs for the Baker- Strehlow- Tang (BST) modeling of explosions in PHAST Risk. Table 30. LOC frequency for dropping an LNG ISO container at an intermodal facility. Table 31. Event frequencies for LNG ISO yard movement release scenarios at yards and intermodal facilities, presented here for Configuration 1 (C-1). Table 32. Event frequencies for LNG ISO mainline movement release scenarios along Route 1 (Hialeah to Port of Miami), presented here for Configuration 1 (C- 1308194.001 - 5691 xt 39 40 42 44 45 45 45 45 46 46 46 47 47 48 48 51 53 57 58 1) and train speeds between 25 mph and 60 mph 61 Table 33. Event frequencies for LNG ISO mainline movement release scenarios along Route 2 (Hialeah to Port Everglades), presented here for Configuration 1 (C- 1) and train speeds between 25 mph and 60 mph 62 Table 34. Event frequencies for LNG ISO mainline movement release scenarios along Route 3 (Hialeah to Bowden Yard), presented here for Configuration 1 (C-1) and train speeds between 25 mph and 60 mph 63 Table 35. Population densities of the consolidated census blocks in the Hialeah Yard area. 71 Table 36. Population of the consolidated census blocks in the Port of Miami area. 73 Table 37. Population densities of the consolidated census blocks in the Port Everglades intermodal facility area. 75 Table 38. Population densities of the consolidated census blocks for the Bowden Yard. 77 Table 39. Population densities of the consolidated census blocks for Route 1. 80 Table 40. Mainline train speeds less than 25 mph - summary of the risk metrics for LNG ISO car train movements. 84 Table 41. Mainline train speeds between 25 mph and 60 mph - summary of the risk metrics for LNG ISO car train movements. 87 Table 42. Hialeah Yard - summary of the risk metrics for LNG ISO train movement and ISO lifting for two sets of route and lifting assumptions. 91 Table 43. Port of Miami - summary of the risk metrics for LNG ISO train movement and ISO lifting. 96 Table 44. Port Everglades - surnnary of the risk metrics for LNG ISO car movement and ISO lifting. 99 Table 45. Bowden Yard - swnmary ol' the risk metrics for LNG ISO car movement and ISO lifting. 102 Table 46. Comparison of risk metrics for LNG ISO car and LPG rail car mainline train movements. 106 Table 47. Comparison of risk metrics for LNG ISO car and LPG rail car movement 1309194.001 - 5691 Ai and LNG ISO lifting in the Hialeah Yard. Note that there are no Lift On/Lift Off activities associated with the LPG cars. 108 Table 48. Summary of the risk metrics for slow speed LNG ISO car train movements. 112 Table 49. Summary of the risk metrics for high speed LNG ISO car train movements. 114 Table 50. Hialeah Yard - summary of the risk metrics for LNG ISO car movements and LNG ISO lifting for multiple train configurations. 116 Table 51. Port of Miami - summary of the risk metrics for LNG ISO car movement and lifting for multiple train configurations. 117 Table 52. Port Everglades - summary of the risk metrics for LNG ISO car movement and lifting for multiple train configurations. 118 Table 53. Bowden Yard - summary of the risk metrics for LNG ISO car movement and lifting for multiple train configurations. 119 Acronyms and Abbreviations ALARP As Low as Reasonably Practicable ASME American Society of Mechanical Engineers ATC Automatic Train Control BLEVE Boiling Liquid Expanding Vapor Explosion °C Degrees Celsius DNV Det Norske Veritas DOT U.S. Department of Transportation ESD Emergency Shutdown Device OF Degrees Fahrenheit FECR Florida East Coast Railway FN Frequency and Severity of Outcome FRA Federal Railroad Administration ft Feet gpm Gallons Per Minute gal Gallon GPS Global Positioning System GSM Gas Supply Module HAZID Hazard Identification HAZMAT Hazardous material HSE UK Health & Safety Executive 1308194.001 - 5691 xm IR Individual Risk ISO International Standards Organization LEL Lower Explosive Limit LFL Lower Flammable Limit LIS Locomotive Interface System LNG Liquefied Natural Gas LOC Loss of Containment LPG Liquefied Petroleum Gas MAWP Maximum Allowable Working Pressure MU Multiple Unit NFPA National Fire Protection Association PHMSA Piping and Hazardous Materials Safety Administration P&ID Piping and Instrumentation Diagram psig Pounds per square inch gauge QRA Quantitative Risk Assessment/Analysis RTG Rubber Tire Gantry SOP Standard Operating Procedure SR Societal Risk Train Mile Mile traveled by a train UDM Unified Dispersion Model UFL Upper Flammable Limit ►l Year Executive Summary This report summarizes the Quantitative Risk Assessment (QRA) study conducted on the Florida East Coast Railway (FECR) movement of liquefied natural gas (LNG) _ISO tank containers by rail in freight trains. In order to assist the process safety management of the overall design, testing, and implementation project, the focus of the study was to evaluate the risk _for movement of the ISO tank containers by intermodal rail transportation. This Executive Summary highlights Exponent's findings in the QRA. Note that this Executive Summary does not contain all of Exponent's technical evaluations, analyses, conclusions, and recommendations. Hence, the main body of this report is at all times the controlling document. E.1 QRA Overview Movements were evaluated along three proposed routes: (1) from Hialeah Yard to Port of Miami, (2) from Hialeah Yard to Port Everglades, and (3) from Hialeah Yard to Bowden Yard in Jacksonville. ISO Lift On/Lift Off activities and train movements were evaluated in four yards/intermodal facilities: (1) Hialeah Yard, (2) Bowden Yard, (3) Port Everglades, and (4) Port of Miami. ,308, 94.00, - 5691 x1V The QRA relied upon a series of concept -phase Hazard Identification (HAZID) studies performed in FECR's LNG fuel tender project' along with a review of intermodal Lift On/Lift Off hazards to identify potential accident scenarios. A list of potential accident scenarios was developed from the HAZID studies, literature review, and review of FECR intermodal facilities and was used to define a reduced list of representative accidental release scenarios for the QRA. The _ISO tank container movements were grouped into three distinct activities, distinguished by the type of operations and the risks present: 1. Lift On and yard movement at the Hialeah Rail Yard. 2. Mainline train movement. 3. Lift Off and yard movement at the receiving yard/intermodal facility. The hazard scenarios corresponded to accidents involving the ISO tank, which is a (b) (4) . Accident event trees were constructed describing the necessary events and the frequency or probability of each step occurring to lead to a loss of containment (LOC) and ultimately a fire and/or explosion. Representative accident/failure frequency and probability values were developed from industryavailable databases and FRA rail accident statistics. Several conservative assumptions were applied during the analysis to estimate failure probabilities for the LNG ISOs since no specific historical data exists for this operation. The assumptions may be evaluated and changed based upon new information, and this may lead to different and likely lower (ie., less conservative) failure probabilities (e.g., lower risk). It was assumed that each train includes 0 LNG ISO containers single -stacked in well cars, and 0 cars were shipped every day of the year. Further, (4) each of the three routes was evaluated independently to bound the maximum potential risk by (4) assuming shipment via only one route. If the LNG ISOs are split among multiple routes, then the risk calculated for each route would decrease. 4 U.S. Census population data and Port passenger statistics were used to represent the populations surrounding the mainline rail routes, rail yards, and intermodal facilities. The populations along the proposed mainline routes were evaluated as aggregated population groupings within 1.6 miles from the rail yards and either side of the rail mainline. Along the mainline, the population was evaluated within approximately one -mile increments along the route. The maximum onerrnle population density was 11,800 people per square mile, which occurred in the Miami area. This population value was used to conservatively bound the risk for mainline movement of LNG ISOs. Exponent Project No. 1308194.000 report titled: "HAZID Study Report, Florida East Coast Railway Dual -Fuel Locomotive LNG Tender Project," issued January 2, 2015. Exponent Project No. 1308194.000 report titled: "HAZID Study Report, Florida East Coast Railway Dual -Fuel Locomotive LNG Tender Project, Updated to Reflect Chart LNG Tender," issued October 24, 2014. Exponent Project No. 1308194.000 report titled: "Integration HAZID Study Report, Florida East Coast Railway Dual -Fuel Locomotive and LNG Tender Project," issued December 12, 2014. 1308194.001 - 5691 xv E.1.1 Evaluating the Risk A commercially available software tool (PHAST Risk v6.7) was used to model the consequences of potential releases resulting in pool fires, flash fires, pressurized jet fires, and explosions, and to calculate the resulting Individual Risk (IR) and Societal Risk (SR) for the mainline and yard/intermodal facilities. Typically, stakeholders (e.g., government agencies, investors, communities) set a threshold risk level that is deemed acceptable. This is called quantitative risk criteria and may vary from region to region and depends upon the type of facility or transportation activity. Currently, the U.S. Department of Transportation (DOT) Federal Railroad Administration (FRA) has not codified quantitative risk criteria for LNG hazardous materials transportation scenarios. Additionally, QRA analyses are not common regulatory requirements in the U.S. and no broadly -accepted risk criteria are employed by domestic communities or industries. In this report, the calculated risk was benchmarked against a similar hazardous commodity— liquefied petroleum gas (ie., propane or LPG). The quantitative risk criteria for evaluating the IR and SR used in this report were developed from those presented for stationary LNG plants in NFPA 59A Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG), 2016 edition. The stationary LNG plant risk criteria are not directly applicable to rail movement of LNG, but these criteria are used as a reference point for evaluating the risk in this report. The risk criteria as applied in this report are summarized in the following table. Summary of IR and SR quantitative risk criteria developed from NFPA 59A (2016) and used in this report. IR Criteria (yr -1) SR Criteria (evaluated per mile for Mainline) Zone 1: IR > 10-' Unacceptable Above: F = 10-4, N = 10 Slope = -1 Zone 2: 10 b <- IR < 10-' ALARP: Region between curves Zone 3: 3 X 10-' <- IR < 10-b Broadly Acceptable Below: F = 10-b, N = 10 Slope = -1 E.2 Findings The QRA generated several findings regarding shipping LNG ISOs on the FECR routes. The analysis required development of an accident model to calculate the release scenarios, which was then used to calculate the risk for various LNG ISO movement options along the routes. The risk was calculated for the rail yards and intermodal facilities by treating them as fixed facilities while the mainline risk was evaluated on a transportation route basis. Since transportation quantitative risk criteria are not typically applied in the U.S., the risk was benchmarked against a similar hazardous commodity—liquefied petroleum gas (ie., propane or LPG) and similar risk criteria proposed for stationary LNG plants in the U.S. Finally, the Individual Risk for the intermodal facilities and mainline transportation routes was mapped to compare against potentially sensitive targets along the routes. 1308194.001 - 5691 xvi E.2.1 Accident Model An accident model was developed as part of the QRA to address yard movements and mainline movements of LNG ISOs in freight trains. The intermodal facility risk also included considerations for lifting ISOs onto and off of trains. For train movements, loss of containment of LNG from an ISO was assumed to occur as the result of a derailment accident. LNG was assumed to be the only hazardous material involved in any incident. FRA data and Pipelines and Hazardous Material Administration (PHMSA) data were used to build the accident model. A flowchart depicting the sequential steps of the accident model is provided in Figure E-1. The sections of the report where each analysis block is described are listed in Figure E-1. Probability `"I ILCI IIII liCi1` Prnhahilitv Figure E-1. LNG ISO train accident model overview. Based on the assumed daily movement of -W ISO containers, the analysis accounted for lifts per day at Hialeah Yard, and another gifts per day at the receiving intermodal facility. The (4) (4) frequency for dropping an ISO that results in a 50 mm hole was found in the literature to be (4) 6.7x 10-7 per lift. For# lifts per day, this resulted in the following release frequency for each intermodal facility. LOC frequencyfor dropping an LNG ISO container. Event Release Frequency Dropped ISO, large leak (50 mm hole) 2.2X10' yr' FRA accident data from 1995 through 2015 were analyzed to develop train accident rates. Based on the available data, the train accident rate was calculated as accidents per train mile as shown in the table below. The accident rates for the last five years is provided for comparison and are approximately 20-25% lower than the historical average. However, the QRA conservatively applied the higher accident rate in order to provide an upper bound for the risk. Train accident rates from FRA data. Statistic Total Yard Train Miles 0.446x10y 1.853X10y Ya rd 1308194.001 - 5691 XVII Yard Accident Rate (/train mile) 1.55X10-' 1.98X10-' Total Non -Yard (Mainline) Train Miles 3.254X10 13.48X10 Mainline Non -Yard Accident Rate (/train mile) 1.81 X 10-b 2.47X 10-" The position in train derailment probability was evaluated as a function of train configuration for LNG ISOs as part of the QRA. A derailment model was employed where the probability that LNG ISOs would be derailed in an accident was related to the probability of the first car derailed and average number of cars derailed. It was assumed that a derailment would involve sequential cars starting with the first car derailed. The following two tables provide the probability of being the first car derailed versus position in the train and the average number of cars derailed in an accident. Representative probabilityof first car derailed for Class 1 and 2 Railroads (1995-2015). Car Position in Train Statistic 1 11 21 31 Yard Derailment Accident 24.8% 1.60% 1.20% 0.82% Mainline Derailment Accident, Speed < 25 mph 17.3% 1.80% 1.13% 0.97% Mainline Derailment Accident, Speed >_ 25 to <_ 60 mph 15.8% 1.07% 1.02% 0.80% Average number of cars derailed (1995-2015). Statistic No. of Cars Yard Derailment Accident 4 Mainline Derailment Accident, Speed < 25 mph 5 Mainline Derailment Accident, Speed >_ 25 to <_ 60 mph 11 Seven different train configurations were evaluated to demonstrate the effects of blocking LNG ISOs into sequential car groupings on the calculated risk. The baseline configuration (C-1) placed ELNG ISOs in sequence from train position I to 0 If a train accident leads to a derailment, then each configuration and speed/yard case will represent a distinct probability (4) (4) array for multiple cars being derailed. The probability relationship for multiple cars being derailed from the baseline train configuration C-1 at high speed (> 25 to < 60 mph) is shown in the table below. Similar relationships were developed for each train configuration, yard accidents, low speed accidents, and high speed accidents. Probability of having X number of LNG ISO cars derail in the event of a train accident, where X is the number of LNG ISOs involved, for the baseline train configuration and mainline train movements at high speed. 1368194 001 - 5691 Xviii Number of LNG ISOs Derailed (X) 0 1 2 3 4 5 6 7 8 9 10 Probability 59% 17% 3.7% 3.7% 3.0% 2.1% 2.7% 2.5% 2.3% 2.4% 2.4% Finally, the loss of containment (LOC) was modeled using a probability versus quantity released relationship developed from analysis of historical PHMSA data. Since data are sparse for a 0 ISO containers in rail accidents, pressure tank car data was used as an analog to represent (4) (4) pressurized ISO container failure probability. The probabilities are shown in the table below. The release scenario probabilities were combined with the probabilities of derailment for multiple cars in an event tree model to estimate the quantity released for each distinct outcome in the accident model. LOC probability from PHMSA pressure tank car incident data and equivalent release scenario for LNG ISOs. Quantity Released in gallons Probability Release Scenario =< 100 0 958 No Release 100 < x =< 1,000 0.014 1/2 -inch Leak 1,000 < x =< 30.000 0.025 2 -inch Leak > 30,000 0.003 Catastrophic E.2.2 Mainline Risk The risk posed by the LNG ISOs along the mainline was evahiated by making conservative assumptions in order to bound the maximum risk of all route options. The results are reported for the highest mainline population density value of 11,800 people per square mile. For regions of the mainline with lower population, the calculated risk will be less than that presented. Two speed ranges, low speed <25 mph and high speed >25 mph to <60 mph, were applied in the model to demonstrate the effects of train speed restrictions. Seven different train configurations were evaluated to demonstrate the effects of blocking LNG ISOs into sequential car groupings. For example, the baseline case (C-1) placed ® LNG ISOs in sequence from train position I to ® This configuration poses the highest risk since all LNG ISOs are in sequence, all may be (4) ) (4) involved in an individual derailment (high speed only), and the highest probability of derailment is at the front of the train. As a comparison, train configuration C-2 places the LNG ISOs in sequence from train position I to H The table below compares the calculated risk metrics for (4) low speed and high speed movement of these train configurations along the 1308194.001- 5691 Ax mainline when ) (4) assuming the highest population density. For slow speed train movements, the Zone 3 risk level is never reached in the analysis, and for high speed train movements, the Zone 2 risk level is never reached. Summary of the risk metrics for mainline LNG ISO car train movements. Risk Metric Train Speed < 25 iph Train Speed 25 — 60 mph ® (4) (4) SR Integral (total risk, yr-') Maximum IR (yr-') Maximum Distance to Zone 1 - 1 x 1 0-�'IR (ft) ■ Maximum Distance to Zone 2 - 1x10 IR (ft) (4) lVi ■ Maximum Distance to Zone 3 - 3x10 IR (ft) (4) ■ (4) E.2.3 Intermodal Facility Risk The overall risk of LNG ISO lifting and train movement within the intermodal facilities and train yards is influenced by the contribution from lifting risk. The analysis was conducted by assuming that all lifts occurred at a single point on the intermodal ramp track, which had the effect of maximizing the Individual Risk for the facility. When the lifting is distributed along the intermodal track, the Individual Risk profile will decrease for the facility. The Individual Risk posed by train movement within the facilities yielded an Individual Risk profile that was a combination of yard track movement overlapped with lifting risk where applicable. For the facilities, the Individual Risk thresholds typically crossed the property boundaries when lifting was assumed to occur at a point, but only the Zone 3 risk threshold appeared to overlap offsite populations when lifting was modeled along the intermodal ramp track. A surnm ry of the risk results for the facilities is provided in the table below. For the facilities, the actual surrounding population densities were applied, and these results represent train configuration C-1. Since Individual Risk is dominated by lifting, which is independent of train configuration, other train configurations are not included. Note that the distances are from the track or point of lifting—not from the property boundary. 1308194 001 - 5691 XX summary OT ine rISK metrlCS Tor LNh Isu train movement ana Isu IITTIng. Risk Metric Hialeah Port of Port Bowden Miami Everglades Yard SR Integral (total risk, yr-') Maximum IR (y(') Train Movement (from Track): Max Distance to Zone 1 - 1 x 10-5 IR (ft) Max Distance to Zone 2 - 1 x 10 IR (ft) (4) Max Distance to Zone 3 - 3x 10 IR (ft) (4) 9 ISO Lifting (from Point): Max (4) Distance to Zone 1 - 1x10-5 IR (ft) E E E ® Max Distance to Zone 2 - 1 x 10 IR (ft) (4) Max Distance to Zone 3 - 3x 10 IR (ft) (4) (4) E.2.4 Benchmarking LNG against LPG There is no current regulatory quantitative risk criteria for Individual Risk or Societal Risk of LNG transportation by rail, and the criteria used here were developed from those applicable to stationary LNG plants. Acceptable quantitative risk criteria for transportation of hazardous materials typically represent higher risk levels than stationary facilities. To benchmark the risk posed by LNG ISO train movements, the risk of movements of liquefied petroleum gas (propane or LPG) in the rail yards and along the mainline were analyzed. On an energy equivalence basis, N10,000 gallon ISO containers of LNG were compared to -34,000 gallon DOT -112 tank (4) (4) cars of LPG. As a result of the QRA, the transportation and found to present similar or less risk than the handling of 0 LNG ISO container -movement of tank cars containing ,306, 94.00, - 5691 xxl was LPG. Accidents (4) involving LPG cars were only considered during train movements in the rail yards since no (4) lifting occurs with this car type. Overall, risk of transporting LPG was found to be comparable to LNG within the rail yards and intermodal facilities and was found to be slightly higher than LNG on the proposed routes. The overall risk for LNG ISOs in the Hialeah yard is significantly influenced by the contribution from lifting risk, which is not present for LPG. The risks between LNG and LPG are summarized in the tables below for mainline movements and for the Hialeah facility. Comparison of risk metrics for LNG ISOs and LPG rail car mainline train movements. (4) Comparison of risk metrics for LNG ISOs and LPG rail car movements and LNG ISO lifting in the Hialeah Yard. Risk Metric Train Speed < 25 mph Train Speed from 25 — 60 mph Risk Metric SR Integral (total risk, yr-) LNG LPG LNG LPG SR Integral (total risk, yr') Maximum Distance to Zone 1 - 1 x 10 IR (ft) Maximum IR (y(') Maximum Distance to Zone 2 - 1x10 IR (ft) (4) Maximum Distance to Zone 1 - 1x10-0 IR (ft) (4) Maximum Distance to Zone 2 - 1x10 IR (ft) (4) Maximum Distance to Zone 3 - 3x 10 IR (ft) (4) 9 (4) Comparison of risk metrics for LNG ISOs and LPG rail car movements and LNG ISO lifting in the Hialeah Yard. Risk Metric LNG LPG SR Integral (total risk, yr-) Maximum IR (y(') Maximum Distance to Zone 1 - 1 x 10 IR (ft) Maximum Distance to Zone 2 - 1x10 IR (ft) (4) Maximum Distance to Zone 3 - 3x10 IR (ft) (4) (4) E.2.5 Sensitive Targets for Routes 1 and 2 The FRA requested that FECR perform an analysis of potentially sensitive establishments along the proposed railway routes. There is no current regulatory quantitative risk criteria for Individual Risk or Societal Risk of LNG transportation by rail, and the criteria used here were developed from those applicable to stationary LNG plants. For stationary LNG plants, NFPA 59A does not permit sensitive establishments, such as churches, schools, hospitals, and major public assembly areas, to be located within an Individual Risk contour greater than 3x 10-7 per year (called Zone 1308194 001 - 5691 XXII 3).Z There are many differences in the hazards and risk profile between a stationary facility and a transportation activity. Acceptable quantitative risk criteria for transportation of hazardous materials typically represent higher risk levels than stationary facilities. However, the Zone 3 risk from NFPA 59A was used as the benchmark for evaluation of risk to offsite populations. The distance to the Zone 3 contour is approximately 0 feet for high speed train movement, with high population density, and train configuration C-1 with LNG ISOs from train position (4) 1 By changing the train configuration, the distance to the Zone 3 contour will be decreased )(4) or eliminated entirely. For example, the C-2 configuration with 0 LNG ISOs in _sequence from train position yields a distance of 0 feet to the Zone 3 contour. At low speed, the (4) Zone 3 contour is eliminated entirely. Only one section of the two mainline routes had listed (4) speed restriction of 25 mph or less, and this was in downtown Miami near the American Airlines Center. No Zone 3 contour was present in this area since the train was restricted to low speed. Potentially sensitive targets along Route 1 and Route 2 were identified from Google Maps, and their distance was determined from the approximate center of the track or approximate facility boundary. The following potentially sensitive targets were identified given these assumptions. Potentially sensitive establishments along Route 1 — Hialeah to Port of Miami. Establishment Name Category Sub -Category Distance to Railway Mater Academy Charter School School Public Charter School New Vision Emmanuel Baptist Church Church Self -standing church (� ASPIRA of Florida School Charter School (4) 'Notes: 1) Distance measurements taken from center of track to closest portion of building. 2) Identified only schools that were elementary and above Potentially sensitive establishments along Route 2 — Hialeah to Port Everglades. Establishment Name Category Sub -Category Distance to Railway iMater Academy Charter School School Public Charter School (b) 2 NFPA 59A (2016) Standardfor the Production, Storage, and Handling of Liquefied Natural Gas (LNG) , §15.10.1 1308194.001 - 5691 xxnl New Vision Emmanuel Baptist (4) Church Aventura Waterways K-8 School School Public School (b) (4) Victory Christian Center Church Self -standing church (b) (4) Hallandale Church of Christ Church Self -standing church (b) (4) Ebenezer Baptist Church Church Self -standing church (b) (4) 'Notes: 1) Distance measurements taken from center of track to closest portion of building. 2) Identified only schools that were elementary and above E.3 Limitations of the Study As requested by Florida East Coast Railway, LLC, Exponent conducted a Quantitative Risk Assessment (QRA) study addressing FECR movement of LNG _ISO containers by rail The scope of services performed during this review may not adequately address the needs of other users of this report, and any use of this report or its findings, conclusions, or recommendations presented herein are at the sole risk of the user. The opinions and comments formulated during this assessment are based on observations and information available at the time of the study. The representation of NFPA 59A risk criteria in this report has been done for the purposes of comparing the transportation risk to a set of existing stationary facility quantitative risk criteria available in the U.S. and may not necessarily be appropriate or applicable for directly assessing acceptability of transportation risk. The assumptions adopted in this study do not constitute an exclusive set of reasonable assumptions, and use of a different set of assumptions or methodology might produce materially different results. Therefore, these results should not be interpreted as predictions of a loss that may occur as a result of any specific future event. Accordingly, no guarantee or warranty as to future life or performance of any reviewed condition is expressed or implied. The findings and recommendations presented herein are made to a reasonable degree of engineering certainty. The methodology that was used in this report is based on mathematical modeling of physical systems and processes as well as data from third parties in accordance with the regulatory requirements. Uncertainties are inherent to the methodology and these may subsequently influence the results generated. 1308194 001- 5691 xxly 1 Introduction Exponent conducted a Quantitative Risk Assessment (QRA) for movement of liquefied natural gas (LNG) in =ISO tank containers by rail on the Florida East Coast Railway (FECR). The objective of the study was to determine the level of risk associated with the shipping of the LNG ISO containers along three potential routes in Florida. The analysis incorporated aspects of prior LNG -related rail transportation risk analyses and hazard identification studies by FECR The QRA included typical accidental release scenarios that may lead to a loss of containment from LNG ISO containers including consideration of ISO container Lift On/Lift Off (Le. lifting) at intermodal facilities. The Federal Rail Administration (FRA) provided the following requirements for risk analysis of LNG shipping by rail, which were addressed through this study:3 A detailed risk analysis of the proposed operation along with appropriate mitigating measures. At a minimum, this risk analysis must include: a. Risks to the public and railroad workers from the proposed transportation of LNG, considering volumes transported, routes, operations on main lines, passenger rail operations on the proposed transportation lines, yards, Lift On and Lift Off areas, types of trains used, and any other relevant risk factors. b. Analysis of the specific structural characteristics (e.g., susceptibility, strength, ability to withstand exposure to heat) of the portable tanks proposed to be used, the number of tanks in a train, train speed, and position in train. c. Analysis of the thermophysical properties of LNG and its vapor, and expected multifaceted behavior of released LNG (fires, confinement -caused explosions, vapor fires, unconfined vapor cloud explosions, etc.) and the magnitudes of the different types of hazards presented by these properties. d. Considerations of the population density, critical infrastructures, and sensitive assets (e.g., schools, churches, playgrounds, sports arenas, elderly care/nursing homes, Emergency Medical Services, police stations, hospitals, power stations) along the routes proposed. e. Assessment of both societal risks and individual risk to persons in the vicinity of the transportation routes and who may be adversely affected by an accident or incident involving a train transporting LNG. f. A quantitative comparison of the risks of LNG transportation in portable tanks to the risks from other flammable hazardous materials shipped on rail in portable tanks (using the volume of shipments and routes proposed for LNG shipments). 3 Guidance for Preparing an Application under Title 49 Code of Federal Regulations Section 174.63 for Approval by the Federal Railroad Administration to Transport Liquefied Natural Cas by Rail in Portable Tanks. 1308194.001 - 5691 1 To address the FRA request, the risk of potential major incidents posed to surrounding populations was calculated during the QRA. The risk results have been presented in this report as Individual Risk (IR) contours around the rail yard intermodal facilities and graphically as Societal Risk (SR) through an incident frequency and severity of outcome (FN) curve on a per mile basis. 1.1 Understanding Risk Risk, simply defined, is the potential to lose something of value. Risk is evaluated by taking the product of event likelihood with the event outcome severity, and then comparing the product to some benchmark risk which is considered by the stakeholders as being acceptable. The likelihood of an event can be estimated using experience relating to given equipment in similar service, industry data, or engineering approximations. A challenge of quantifying risk, or affixing a number to a particular risk level, is determining how to quantify the event outcome portion of the equation. For quantifying risk at industrial facilities and operations, the outcome of an event is typically evaluated as the potential for a fatality or multiple fatalities. In evaluating the potential for fatality, two metrics are utilized to yield the risk: (1) Individual Risk (IR) and (2) Societal Risk (SR). Individual Risk is the frequency (yr -1) where an individual with continuous potential exposure may be expected to sustain a serious or fatal injury. In this QRA report, the IR is presented in two different manners. For the intermodal facilities and rail yards at the Bowden Yard, the Hialeah Yard, Port of Miami, and Port Everglades, which are treated as fixed facilities, the IR is provided as frequency contours on aerial maps that illustrate the risk to individuals positioned within those contours. Because the LNG ISO containers will be shipped along fixed routes, release scenarios were modeled along the rail Ems. There are approximately 0 miles of raid along the line of road between Bowden and Hialeah IR contours cannot be succinctly represented for long routes such as this, but they are 141 related to the population level along the line. 4 Thus, the highest risk along the mainline will occur at the portion of the track exposed to the highest populations. Societal Risk (SR) is another method for evaluating the risk of a given process or operation. Unlike IR, the SR calculation considers the relationship between the number of potential fatalities versus likelihood from a series of potential events. The outcome of a SR analysis is a graph depicting annual frequency on the y-axis and N fatalities on the x-axis, where N is the cumulative number of potential fatalities for all scenarios represented by the corresponding cumulative frequency of events. Whereas the IR calculation gives insight into the probability of having a fatality, the SR calculation gives the likelihood of a number of potential fatalities. This is especially important for evaluating scenarios with a large potential impact for loss of life, such as train derailments of flammable materials. 4 IR is a weak function of population due to the population density effect on the likelihood of ignition. 1308194 001 - 5691 2 few U.S. Department of Transportation Federal Railroad Administration MAR 13 2017 Senior Vice President—Engineering, Mechanical and Purchasing Florida East Coast Railway 7150 Phillips Highway Jacksonville, FL 32256 Dea 1200 New Jersey Avenue. SE Washington. DC 20590 This reply is in response to the Florida East Coast Railway's (FECR) September 3, 2014, petition, subsequently amended in letters dated July 16, 2015, June 7, 2016, and October 25, 2016, to the Federal Railroad Administration (FRA) requesting approval for FECR to carry, in common carrier rail service, Methane, refrigerated liquid or Natural gas, refrigerated liquid, UN 1972, Div. 2.1 (commonly known as liquefied natural gas or LNG), in cryogenic portable tanks (T75, UN portable cryogenic tanks or cryogenic ISO tanks) secured within intermodal well cars. FECR had originally petitioned FRA, in a letter dated September 3, 2014, for approval of LNG shipments on its network between Hialeah Yard (Miami, FL) and Bowden Yard (Jacksonville, FL). The amended requests of June 7, 2016, and October 25, 2016, modified the destination points to the Port of Miami (POM) and Port Everglades (POE). The rail distances from the Hialeah Yard to these locations are approximately 15 miles and 23 miles respectively. The origin and destination points for LNG shipments will be entirely within the operating network of FECR. FECR has also submitted a number of technical support documents (listed in Appendix A) with this petition, including a detailed risk assessment for the shipments of LNG on these routes. FECR understands that additional shipments of LNG in ISO containers elsewhere on its network would require a separate and distinct request for approval to be submitted to FRA. Based on the review of the request and supporting documents, FRA is granting approval under Title 49 Code of Federal Regulations (CFR) Section 174.63(a) to FECR for transporting LNG in portable cryogenic tanks secured within intermodal well cars, subject to the following conditions. This approval is valid for shipments between the origin point of FECR Hialeah Yard, and the destination points of POM and POE beginning March 9, 2017, through June 30, 2019. A maximum of 10 loaded portable tanks of LNG per day is approved for shipment in one or more manifest trains. Each portable tank must not exceed a water capacity of 11,000 gallons. 2. Shipments must be transported only in intermodal well cars with only one portable tank Pa per car, and in compliance with the requirements of 49 CFR § 174.63, Portable tanks, IM portable tanks, IBCs, Large Packagings, cargo tanks, and multi -unit tank car tanks, for the movement of portable tanks containing hazardous materials in well cars. 3. Portable tanks must comply with all requirements for the shipments of cryogenic liquids in 49 CFR Subchapter C, Hazardous Material Regulations, and specifically with the following sections: special provisions for T75 and TPS, as detailed in 49 CFR §§ 172.102(7)(iv) and (8)(ii); 174.63; 178.274, Specifications for UNportable tanks; and 178.277, Requirements for the design, construction, inspection and testing of portable tanks intended for the transportation of refrigerated liquefied gases. 4. Train placement of cars transporting LNG must be consistent with the results of the safety and risk assessment performed by FECR and indicated in the report "FECR Movement of LNG in UN -T75 ISO Containers by Rail." The location of residue shipments within a train must conform to the requirements in 49 CFR § 174.85, Position in train of placarded cars, transport vehicles, freight containers, and bulk packagings. The maximum authorized speed of trains with loaded LNG portable tanks in the consist is 40 mph over the authorized routes. 5. FECR must perform a minimum of one track geometry car inspection annually (at least every 365 calendar days) of the LNG shipment routes. FECR must report the results of this inspection to FRA within 30 days of completing the inspection. 6. FECR must perform, at least, four internal rail flaw inspections annually of the LNG shipment route, with no more than 95 calendar days between each inspection. FECR must report the results of these inspections to FRA within 30 days of completing each inspection. 7. Before commencing operations under this approval, FECR must ensure that training in accordance with the requirements of 49 CFR § 172.704, Training requirements, is provided to the railroad employees whose job involves any activity connected with the transportation of LNG by rail. 8. FECR must ensure that proper emergency response planning and preparedness, to include emergency response drills and exercises, on LNG is provided to emergency responders along the approved shipment routes. Thirty days before the commencement of operations approved in this letter, FECR must submit to FRA for review their outreach plan to the first responders and local authorities along the approved routes. 9. If FECR is notified or otherwise becomes aware of any changes in the conditions assumed in the risk analysis report, or of an accident or incident involving a shipment of LNG, FECR must notify FRA's Hazardous Materials Division (at HMASSIST@dot.gov) within 24 hours of obtaining such knowledge and seek FRA advice. 10. FECR must provide a quarterly report to FRA containing, at a minimum: a summary of the operations, the number of portable tank loads and residues transported, number of 3 trains in which the LNG tanks were transported, and any specific problems related to the transportation of the portable tanks (i.e., non -accident releases, handling or securement issues, etc.). This quarterly report must be received by FRA by the 15th day following the end of each calendar quarter. Nothing in this approval relieves FECR from its responsibility to comply with all applicable regulations governing the transport of hazardous materials by rail, including 49 CFR Parts 200-299, and 100-199. FBA's approval of FECR's request for rail transportation of these LNG shipments should not be construed by other rail carriers as a requirement that these shipments must be accepted for transportation. FRA reserves the right to amend or revoke this approval based on noncompliance with any condition of this approval or applicable Federal regulations, or based on information pertaining to the safety of the operation. Further, FRA reserves the right to take enforcement action under 49 U.S.C. § 20111 for FECR's noncompliance with any condition of this approval or applicable Federal regulations. If you have any questions, please contact Mr. Mark Maday, Staff Director, Hazardous Materials Division, Office of Railroad Safety, at (202) 493-0479 or Mark.Maday@dot.gov. Sincerely, Robert C. Lauby Associate Administrator of Railroad Safety Chief Safety Officer Enclosure 4 Enclosure Appendix A 1. NFE LNG ISO Container Specification -18 Aug. 2015 2. FECR LNG—New Fortress Energy (NFE) Overview 3. FECR—LNG ISO Route Analysis Document -8 Oct. 2015 4. FECR—Quantitative Risk Analysis (QRA)-8 Dec. 2016 5. Well Car Capability Analysis by Sims Professional Engineers 6. List of Incidents 7. FECR Accident Incidents 2011 to 2016 a a U.S. Department of Transportation Federal Railroad Administration MAR 0 3 2016 Mr. James R. Hertwig President and Chief Executive Officer Florida East Coast Railway 7150 Philips Highway Jacksonville, FL 32256 Dear Mr. Hertwig: Administrator 1200 New Jersey Avenue, SE Washington, DC 20590 This letter is in response to Florida East Coast Railway's (FEC) request under Title 49 Code of Federal Regulations (CFR) Section 174.63 for the Federal Railroad Administration (FRA) approval to transport liquefied natural gas (methane, refrigerated liquid (UN 1972), or LNG) by rail, in intermodal (IM) portable tanks in container -on -flatcar or trailer -on -flatcar service, from origination and destination points on the FEC network. As outlined below, it lists the next steps regarding your request. As FEC points out in its most recent letter, FEC originally discussed its interest in moving LNG with FRA on September 3, 2014. Since then, FRA has engaged in ongoing discussions with FEC regarding its potential plans to transport LNG in IM portable tanks, including inspecting the rail cars FEC proposes to use for the transportation of LNG, and visiting the specific portions of track FEC proposes to use to transport the commodity. FEC has engaged with FRA during this period as well, providing additional details regarding its plans for LNG transport within the various documents it submitted to FRA in 2015 and 2016. As an example of FRA and FEC's cooperative efforts, FRA has met with FEC on multiple occasions over the last year, and recently concurred with Phase One of FEC's LNG -as -a - locomotive -fuel test program. After concurring with Phase One of FEC's LNG -as -a -locomotive - fuel test program, and reviewing and evaluating the relevant information on the safety of FEC's LNG -fueled locomotive and tender, FRA concurred with FEC's proposals for limited non - revenue operation of its LNG -fueled locomotive consist over a portion of FEC's rail network. The proposed transportation of LNG by rail is a new opportunity for railroads, and a new challenge for safety regulators. No railroad in the United States currently transports LNG. LNG is a hazardous material, with temperatures of -260 degrees Fahrenheit at atmospheric pressure. We know any release of LNG in a non -controlled environment is dangerous, but the transportation of large quantities of LNG in a single train presents unique safety risks. Moving hazardous materials by rail is not new, and is one of the safest ways to move dangerous products. In fact, FRA believes it is safer to transport LNG by rail than it would be to transport the product by an alternative method. But the unique challenges posed by the rail transportation the product by an alternative method. But the unique challenges posed by the rail transportation of LNG require us to ensure that we are doing everything we can to keep railroad employees and communities along the proposed routes safe. FEC's proposed LNG transportation routes traverse congested, highly populated areas, with frequent highway -rail grade crossings. Any LNG transported along the proposed routes would eventually share the routes with high- performance passenger trains operating at speeds of up to 11 Q mph. The complexity of this operating environment requires FRA to conduct a thorough evaluation of FEC's proposal to ensure public safety. Over recent months, FRA has carefully reviewed the information FEC provided in support of ij request to transport LNG by rail on its operational territory. We appreciate the documentation FEC has provided to date; however, FRA requires additional information to fully evaluate a railroad's request. A guidance document detailing the information required for FRA's consideration of FEC's request is enclosed with this letter. Although, FEC has provided much the information listed in this guidance document, the four items listed below remain outstandin 1. The design details of the restraint system used to secure the portable tanks to the car, including the types and number of restraints, the standard (and details in quantitative ` terms) to which the restraints conform, and the different direction g -forces the restraints are designed and constructed to withstand (paragraph 3 on the enclosed guidance document); 2. At least the past 5 years of accident experience data (main line, yard, grade crossing, etc.) on the proposed transportation route (paragraph 6 on the enclosed guidance document); 3. Analyses, experimental data, or other identifiable scientific data used in the design of the railcar on which the portable tanks are mounted demonstrating the car's ability to withstand normal and accident -caused abnormal forces in rail transportation (paragraph I 12 on the enclosed guidance document); and 4. A detailed risk analysis of the proposed operation and appropriate mitigating measures. (Paragraph 13 on the enclosed guidance document sets forth the minimum requirements of this risk analysis.) In addition, given the unique risks presented by FEC's proposed operation, FRA also requires that FEC take the following actions: Conduct a safety analysis of the rail cars it plans to use in LNG transport. The analysis, must include and demonstrate under car protection. FEC must submit the analysis to FRA for approval; and 2. Ensure each portable tank used to transport LNG is equipped with functioning GPS - based, telemetric communication equipment. The equipment must accurately measure and report the following data on each portable tank containing LNG at all times the tank: are in transportation: (a) location; (b) pressure in the tank; (c) temperature in the tank; (d) volume in the tank; and (e) any impact to a portable tank. FRA also anticipates imposing specific additional conditions on any approval to ensure the safety of the operation. These conditions would include, but may not be limited to: • Additional track geometry and internal rail flaw inspections; • A maximum speed limit of any train transporting LNG; • Pre -transport notification and training of first responders along the routes; • Minimum two -person crew size for each train transporting LNG; • A maximum number of portable tanks to be transported in any train; • Train make-up requirements; • A specifically approved schedule of LNG movements; • Recordkeeping and accident/incident reporting requirements; • Regular reports on what FEC learns (including, inspection results and acceptance criten and shipment data on a monthly basis); and • Develop and implement a system to closely monitor and respond to excessive hold times of portable tanks in transportation. As required of any railroad, FEC should expect, and cooperate with, frequent safety oversight and inspections from FRA safety officials.' f In addition, to reviewing the information provided by FEC, FRA has also undertaken significant work to study and more clearly understand the dangers and challenges of transporting LNG by rail such as: (1) information from the Alaska Railroad (ARR) demonstration; (2) Volpe research on crash survivability of LNG tanks proposed for use in rail transport; (3) LNG properties, hazards, and behaviors in accident conditions; and (4) analysis of accident data involving LNG and portable tanks transported by rail. As FRA continues to study the transportation of LNG by rail, in addition to the information outlined above, FRA may require a new detailed risk assessment and mitigation plan from FEC that incorporates the findings of FRA's research. As you may know, FRA recently approved ARR's request to transport LNG later in 2016. The FRA views ARR's approval as different from a potential FEC approval, due to the significant differences between the two states and the areas through which they would be transporting the product. For example, if ARR transports LNG it will be doing so at 40 mph through mostly unpopulated areas with few highway -rail grade crossings, whereas under FEC's proposal, trains transporting LNG will pass through highly populated areas, with more frequent crossings, while' sharing tracks with passenger trains traveling at 110 mph. If Alaska does transport LNG later in, the year, those movements will be treated as a pilot program allowing FRA to learn from those' shipments. As with FRA's own research, if FRA gathers new data from. ARR that raises 'Nothing in this letter shall be construed to alter or change any regulatory requirement FEC may have under the Federal hazardous materials regulations (49 CFR parts 171-180). j 4 i i additional safety concerns, FRA may require FEC to assess and mitigate those additional risks on its own railroad. We understand that the transportation of LNG by rail is an important business consideration for railroads and for State and local economies near import and export facilities. FRA takes the 1 potential safety challenges associated with the transportation of LNG by rail very seriously, but remains committed to working with any railroad on a path toward the safest possible transport of this product. If FEC continues to be interested in transporting LNG, please consider the requirements laid out in this letter and guidance document, and contact FRA to schedule a meeting to discuss next steps. We look forward to hearing from FEC. Sincerely, GAS/ Karl Alexy Staff Director, Hazardous Materials Division i Enclosure 0 I1i11/II,Iy "4 .ISS 01 Itlt#Yr � 1�l11fISt111{{' "Iti{HI to Charleston Savannah !14Jacksonville (FECR Headquarters) PortIOUPalm IM From: HHP InsightsFloridaEastCoastRailwayRunsLNG June 29, 2016 in Companies, Dual Fuel, LNG, Rail by Rich Piellisch I No Comments Port Canaveral ocoa Beach ort Pierce Port Everglades FEC Highway Services ---- FECR Track - - - - NS Track - - - - CSX Track Transload Services Port Facilities LNG plant Charleston Savannah !14Jacksonville (FECR Headquarters) PortIOUPalm IM From: HHP InsightsFloridaEastCoastRailwayRunsLNG June 29, 2016 in Companies, Dual Fuel, LNG, Rail by Rich Piellisch I No Comments Port Canaveral ocoa Beach ort Pierce Port Everglades