HomeMy WebLinkAboutCSX GENERAL CROSSING AGREEMENT Agreement No.: CSX-826347
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GENERAL CROSSING AGREEMENT
(Wireline/Pipeline)
This Agreement made as of September 29, 2016, by and between CSX
TRANSPORTATION, INC., a Virginia corporation (hereinafter sometimes called "Licensor"),
whose mailing address is 500 Water Street, J180, Jacksonville, Florida 32202 and AUGUSTA,
GEORGIA,a political subdivision established uner the laws of the State of Georgia,whose mailing
address is 535 Telefair Street,Augusta, Georgia 30901,(hereinafter called"Licensee"),
WITNESSETH:
WHEREAS,Licensee desires the future right to construct,maintain and operate additional
crossings over,under and/or across the Rail Corridor of Licensor;and
WHEREAS,for the protection of the property and rights of both,the parties hereto agree to
enter into this Agreement with respect to all such additional crossing.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, it is agreed as follows:
1. LICENSE GRANT
1.1 Licensor, insofar as it has the legal right, power and authority to do so; its present title
permits,and subject to:
(a) the limitations in Article 4 hereof;
(b) all existing encumbrances, conditions, covenants, easements and limitations
applicable to Licensor's title to or property rights in its Rail Corridor;and
(c) compliance by Licensee with terms and conditions hereinafter contained;
does hereby GRANT to Licensee the permission,rights and license to utilize Licensor's
Rail Corridor as herein described.
2. USE
2.1 Subject to the Licensor's right to continue to occupy,possess and use the area of the
Crossing,as hereinafter defined,for any and all purposes,the Crossing shall be used
by Licensee for the purpose of traversing the Licensor Rail Corridor, for
constructing, maintaining, repairing, operating, altering and removing Licensee's
Facilities,as hereinafter defined.
2.2 Licensee shall not use, or permit use of,any Crossing,by or for any other Licensee
or transmission(cable or pipe), or other party or entity, except with separate prior
written consent of Licensor.
3. DEFINITIONS
3.1 The term "Licensee" herein shall mean Augusta, Georgia, any successors, assigns
and subsidiaries, and shall also include Licensee's agents, employees, servants,
sublicensee and invitees.
3.2 The term "Licensor" herein shall mean CSX TRANSPORTATION, INC., a
Virginia corporation, and any parent company(ies), subsidiary(ies), or operating
lessee and any other company(ies) whose property at any specific Crossing
location may be leased to or operated by Licensor or its subsidiary or affiliated
corporations.
3.3 The term "casing pipe" shall mean the outermost pipe, typically steel, installed to
protect pipes,conduits, innerducts,wires and/or cables.
3.4 The term "conduit" shall mean pipe within the casing pipe, installed to hold
present or future innerduct,wires and/or cables.
3.5 The term "innerduct" or "duct" herein shall mean the innermost pipe installed to
hold present or future wires or cables.
3.6 The term"Crossing"herein shall mean for the following:
(a) For communications, the transmission of television multiband impulse and
internet services, via an optical waveguide through a solid core of glass or
plastic fiber material,each individual pipe or cable ancillary facilities; and
(b) which traverse in, on or through the Rail Corridor of, and under or over the
tracks of Licensor, including dedicated public road rights-of-way, but
excluding such"Crossing"which are part of existing or additional longitudinal
or parallel occupations of such Rail Corridor.
3.7 The terms "maintain," "repair," "renew," and "alter" shall mean exchanging
existing materials for like materials and shall not include increasing capacity, or
size of cable or wire or pipe.
3.8 The term "Rail Corridor" herein shall mean Licensor's operated rail corridor at a
specific location,the width of which may vary from location to location,but never
exceeding a total width of two hundred feet(200'),measured perpendicular to or at
an angle transverse(35°to 145°, left or right)to the plane of Licensor's rail at the
point of actual Crossing of the centerline of Licensor's track.
3.9 The term "track" herein shall mean the space between the rails and space not less
than four feet outside each rail.
3.10 The term "Facilities" herein shall mean with respect to the Licensor, the track,
rails,ties, ballast, signal and communication lines and structures, fiber optic cable,
powerlines, drainage ditches, and other items used or useful in operation of a
surface Licensor; and, with respect to the Licensee, if electrical, all conduits,
manholes, handholes, ducts, connectors, poles, guys, cables, wires, optical fiber,
anchors, appliances; if pipeline, all pipes, ducts, casings vents, manholes,
connectors, fixtures, appliances; or any other transmission or supporting fixture,
structure or ancillary facility devoted exclusively to the transmission usage of each
Crossing.
3.11 The terms "satisfactory" or "satisfaction" herein shall mean written approval, by
Licensor, based upon a reasonable application of established engineering and/or
safety standards of Licensor's industry.
3.12 The term "Public Crossing" shall mean any crossing by Licensee within the
boundaries of public streets, highways, and/or roads, as designated by the State,
County or City where Licensee has the right to place its facilities.
3.13 The term "Private Crossing" shall mean any location not covered by Public
Crossing.
3.14 The term "Condemned Crossing" shall mean interest or rights acquired by
Licensee through the exercise of rights or remedies available under law related to
condemnation or eminent domain.
3.15 The term"Service Crossing" shall mean any Private Crossing by Licensee that is
installed for the sole purpose of providing service to Licensor.
3.16 The term "Pipeline", as used herein, shall include only the pipes, casing, vents,
manholes, connectors, fixtures, appliances and ancillary facilities devoted
exclusively to the transmission usage as described in this Agreement within the
Crossing.
3.17 The term "Contractor" shall mean Licensee's agent, contractor, developer,
and/or designees performing any of the work related the Crossing as provided in
this Agreement. Prior to any work described in this Agreement is performed by
Contractor, Licensee shall require Contractor to execute the and deliver to
Licensor the Contractor Acceptance Form, attached to and made part of this
Agreement as Schedule I, to acknowledge Contractor's agreement to observe
and abide by terms and conditions of this Agreement
4. SCOPE
4.1 This Agreement is intended to cover:
(A) Existing crossings;
(1) Without agreement
The parties agree that Licensee may add any Existing Crossings that
are not currently covered by an agreement under this Agreement for
a period of 90 days after the effective date of this Agreement. Any
Existing Crossing discovered after the said period will be treated as
an Additional Crossing and governed by Section 4.1(B).
(B) New or Additional Crossings:
(1) Private Crossings
(a)Licensee shall adhere to the fees as set forth in Exhibit"A".
(2) Public Crossings
(a)Licensee shall adhere to the fees as set forth in Exhibit"A".
(3) Service Crossings
(a)Licensee shall adhere to the fees as set forth in Exhibit"A".
4.2 This Agreement is not intended to cover,and does not cover
(a) Attachments by Licensee of any Licensee Facilities whatsoever to any
bridge(including supports)or other Licensor structure;
(b) The occupation of Licensor's Rail Corridor by towers, generators,
repeaters, appliances or any other type of fixtures, supporting structure or
ancillary facilities,unless expressly approved by Licensor;
(c) Longitudinal or parallel occupations by Licensee (within 35° either
direction to the plane of rail)of Rail Corridor;
(d) Crossing over Rail Corridor owned jointly by Licensor and other
nonaffiliated Licensor company(ies);or
(e) Crossings over Licensor's yards, shops or terminals (unless otherwise
agreed in writing).
(f) Crossings that would be restricted by pre-existing agreement.
(g) Condemned Crossings.
(h) Use of Rail Corridor for private access other than public crossings.
4.3 All occupations or crossing enumerated in Sections 4.2(a) through (h) shall be
covered by separate agreement, setting forth the terms and provisions covering the
same and the compensation to be paid therefore.
5. FEES
5.1 Licensee shall pay a review fee to Licensor, for each request to construct,
maintain, relocate, repair, renew, alter, change and/or removal for each Crossing,
(the "Review Fee") as set forth on the Fee Schedule attached hereto as Exhibit
«A„
5.2 Licensee shall pay Licensor for each Crossing established hereafter, a one-time
lump sum payment(the"License Fee")as set forth on Exhibit A.
5.3 The Fee shall be tendered to Licensor at the time the Application for each Crossing
is made. If such Application is approved, Licensor shall retain the Fee as
consideration for the Crossing. If such Application is not approved, the Fee, less
Licensor's the Review Fee, shall be returned to Licensee with notice of rejection.
5.4 There will be no charge for a Crossing constructed at a specific location for the
sole purpose of rendering service to Licensor.
5.5 In further consideration for the license or right hereby granted, Licensee hereby
agrees that Licensor shall not be charged or assessed, directly or indirectly, with
any part of the cost of the installation of said Crossing and appurtenances, and/or
maintenance thereof, or for any public works project of which said Crossing is a
part.
6. NEW OR ADDITIONAL CROSSING
6.1 Should Licensee desire to construct any Crossing,Licensee shall make application
to Licensor in writing, using the then current application form found on
www.CSX.com ("Application") accompanied by drawings showing plan view,
elevations, cross sections, detail drawings and specifications as well as any other
details of proposed new construction in accordance with the guidelines in the
application package.
6.2. Licensor reserves the right to accept or reject any Application from the Licensee,
in its sole and absolute discretion.
6.3 Licensor shall note any objection to the Application or request for modification to
plans and specifications. Modifications to plans or responses to Licensor
objections shall be completed by Licensee and resubmitted for approval to
Licensor within fifteen (15) days after Licensee's receipt of notice, objection,
request,or modification.
6.4 Approval by Licensor shall be made by execution of a supplemental letter (the
supplemental letter with approved plans attached shall collectively be referred to
herein as the "Supplemental Letter"). Upon return of the Supplemental Letter to
Licensee, the Agreement, thereafter, shall be modified to add the Crossing. The
Supplemental Letter shall be considered as being attached to and made a part of
this Agreement.
7. CONSTRUCTION NOTICE
7.1 Licensee recognizes that because of Licensor's labor and employment
agreements: (a)the furnishing of any watchers or flaggers needs to be requested
at least thirty (30) days for short term flaggers or forty-five (45) days for long
term flaggers prior to actual work date, or such watchers/flaggers may not be
available; (b) once a watcher/flagger is designated, he/she cannot be pulled from
the job less than seven (7) days prior to work date, or cost thereof may be
incurred by Licensee; (c) once assigned, for any period of time, such
watcher/flagger must be paid for at least an eight (8) hour shift, regardless of
lesser hours worked; and (d) if Licensee's needs overlap ordinary shift turns (or
"tricks"), Licensee may incur flagging costs for both shifts/tricks. After
Licensee's receipt of approval from Licensor for construction, maintenance,
relocation, repair, renewal, alterations, change and/or removal of any Crossing,
Licensee shall give notice to Licensor by completing and submitting Licensor's
Outside Party Number Request Form (Form # OP) by facsimile, to facsimile
numbers: (904) 245-3692 and (904) 633-3450. Licensee may also scan and
email a completed form to email address: OP_Request@csx.com. A blank form
is attached and labeled as Exhibit "C". Additional instructions and information
can be obtained from Licensor's web site,via web link:
https://www.csx.com/index.cfm/customers/val ue-added-seryices/property-real-
estate/permitting-utility-installations-and-rights-of-entry/#scheduling
in accordance with the above in advance of actual commencement of any work
involving Licensor's Rail Corridor.
7.2 Notwithstanding the foregoing, in any emergency situation affecting Licensor's
operations or public health and safety, Licensee shall give telephonic notice by
calling 1-800-232-0144 in advance of any work and provide written notice of the
emergency within seven (7) days thereafter. The parties hereto shall cooperate to
avoid any unnecessary delay in the performance of such work.
7.3 Prior to construction pursuant to or related to this Agreement, by Licensee or any
agent, representative or contractor of Licensee, Licensee shall give at least seven
(7) days written notice, and furnish a copy of construction plans (with elevation,
details and method of construction), to any parallel or longitudinal occupier of
Licensor's Rail Corridor ("Occupiers") noted in Licensor's response to Licensee's
Application. Any changes, alteration, relocation or protection of wire, cable of
such Occupier, necessitated by Licensee's installation or required by said
Occupier, shall be performed at Licensee's expense and as negotiated between
Licensee and said Occupier.
7.4 Prior to any construction, Licensee must locate and identify any existing
encumbrances or Licensee lines, traversing or located in, on or immediately
adjacent to the proposed Crossing, at Licensee's sole risk, and shall comply with
any State "One Call"or"Call Before You Dig"requirements.
7.5 Licensee shall be solely responsible and liable for any damage to the owner of any
encumbrances or Licensee lines and appurtenances thereto, resulting in any way
from Licensee's exercise of rights or privileges under this Agreement. Licensee
shall defend, indemnify and hold Licensor harmless from any such damage claims
and any relocation or protection costs of said encumbrances or Licensee lines.
8. CONSTRUCTION SPECIFICATIONS
8.1 Licensee shall construct,repair,renew,alter,change and thereafter maintain and/or
remove any Crossing at Licensee's sole cost and expense, at a time and in a
manner satisfactory to Licensor, and in accordance with the design, plans,
drawings and specifications approved by Licensor. All work shall be conducted in
a prudent, workmanlike manner and in conformity with any applicable statutes,
orders, rules, or regulations and specifications of any governmental or regulatory
authority having jurisdiction over the Crossing. Notwithstanding the above, unless
otherwise approved by Licensor, all design and construction shall meet or exceed
Licensor's design and construction specifications.
8.2 In the installation and/or maintenance of any Crossing, Licensee shall not use
explosives of any type or perform or cause any blasting without the separate
express written consent of Licensor. In the event such consent is granted, a
representative will be assigned by Licensor to monitor blasting,and Licensee shall
pay Licensor for the entire cost and/or expense of furnishing said monitor.
8.3 Any Crossing repairs or maintenance, whether resulting from acts of Licensee, or
natural or weather events, which are necessary to protect or facilitate Licensor's
use of its property, shall be made by Licensee promptly, but in no event later than
thirty(30)days after receipt by Licensee of notice as to the need for such repairs or
maintenance.
8.4 Licensor, in order to protect or safeguard its property, rail operations, equipment
and/or employees from damage or injury,may request immediate repair or renewal
of the Crossing, and if the same is not performed, may make or contract to make
such repairs or renewals,at the sole risk,cost and expense of Licensee.
8.5 Wires carrying five hundred (500) volts or more of electric current over any
telephone,telegraph, signal or transmission wires of Licensor, shall be erected and
maintained, at least six (6) feet over and above wires of Licensor. Suitable
protective devices shall be so placed to catch and support said transmission wires
to prevent said transmission wires from falling across Licensor's wires or tracks.
Such protective devices and the necessary supports therefor shall be erected and
maintained at the sole expense of Licensee.
8.6 Any Crossing shall be constructed, maintained and operated in accordance with
provisions of the current National Electrical Safety Code (NESC) and/or The
American Railway Engineering and Maintenance of Way Association(AREMA),
as the case may be and as amended from time to time and which are incorporated
herein by reference. Notwithstanding the above, unless otherwise approved by
Licensor, all design and construction shall meet or exceed Licensor's design and
construction specifications.
8.7 Neither the failure of Licensor to object to any work done, any material used, or
method of construction or maintenance of a Crossing, nor any approval given or
supervision exercised by Licensor, shall be construed as an admission of liability
or responsibility by Licensor, or as a waiver by Licensor of any of the obligations,
liability and/or responsibility of Licensee under this Agreement.
8.8 Licensee hereby agrees to reimburse Licensor any loss, cost or expense (including
losses resulting from train delays and/or inability to meet train schedules) arising
from any failure of Licensee to maintain or make repairs to after discovery of
defect, or from improper or incomplete repairs or maintenance of Licensee's
Facilities.
8.9 All work on the Crossing shall be conducted in accordance with Licensor's
safety rules and regulations.
9. CONSTRUCTION OR USE PERMITS
9.1 Before any work is performed on any Crossing, or before use by Licensee of a
Crossing for the contracted purpose, Licensee, shall obtain any necessary permit,
license or approval (including zoning, health, building, construction, safety or
environmental matters) from all federal, state or local public authorities having
jurisdiction over the construction of any Crossing or its intended use.
9.2 Licensee expressly agrees and warrants that it shall conform and limit its activities
to the terms of such permit, license and approval, and shall comply with all
applicable ordinances, laws, rules, regulations and requirements of any
governmental authority (State, Federal or Local) having jurisdiction over
Licensee's operation of the pipe, wire, cable and fixtures installed and operated
hereunder(including the location,contact,excavation and protection regulations of
the Occupational Safety and Health Act(OSHA)(29 CFR 1926.651(b)).
9.3 Licensee shall defend, protect and hold Licensor harmless from any failure by
Licensee to obtain permit, license, or approval under Section 9.2, for any violation
by Licensee thereof, for costs or expenses of compliance therewith, and for any
failure by Licensee to comply with such ordinances, laws, rules, regulations or
requirements.
10. CONTRACTOR
10.1 In the event Licensee contracts for construction, relocation, repair, renewal,
alteration, maintenance, or removal of a Crossing, Licensee shall require its
Contractor to comply with all terms of this Agreement.
11. TRACK SUPPORT
11.1 During performance of any subsurface work at any Crossing, Licensee shall
support the track and roadbed of Licensor in a manner satisfactory to Licensor.
Unless otherwise approved by Licensor,all such construction shall be by jack-and-
bore method and encased in steel.
11.2 Licensee shall backfill with material satisfactory to Licensor and thoroughly tamp
all trenches to prevent settling of land surface and roadbed of Licensor, and shall
either remove any surplus earth or material from Licensor's property or cause such
surplus earth or material to be placed and distributed at locations and in such
manner as Licensor may direct.
11.3 Upon completion of construction (or removal), Licensee shall leave Licensor's
property in a condition satisfactory to Licensor.
11.4 Licensee shall remain responsible for any settlement of the track or roadbed at the
utility Crossing location for a period of three(3)years subsequent to completion of
installation of any Crossing.
12. FLAGGING
12.1 During construction,maintenance,relocation,repair,renewal, alteration,change or
removal of any Crossing, if Licensor deems it advisable for protection of property
or operations of Licensor or others on Rail Corridor, Licensor shall have the right
to place watchmen, flagmen, inspectors, or supervisors, in accordance with Article
7.1,at the sole cost and expense of Licensee.
13. ROAD CROSSINGS
13.1 Nothing herein contained shall be construed to permit Licensee or Licensee's
contractor to move any vehicles or equipment over track of Licensor except at a
public road crossing without prior separate written consent of Licensor.
14. TAXES
14.1 Licensee shall promptly pay and discharge any state or local taxes, assessments
and other governmental charges levied or assessed upon
(a) Licensee's Facilities within any Crossing,or
(b) The Rail Corridor of Licensor solely because of the existence of
Licensee's Facilities thereon.
15. FACILITY CHANGES,RELOCATIONS AND COSTS
15.1 If Licensor is required by any governmental agency to make any change,
relocation or improvement in Licensor Facility(ies) or Rail Corridor over or under
a Crossing, or if Licensor desires to make any changes whatsoever in or to its Rail
Corridor or Licensor Facilities affected by a Crossing, in order to maintain rail
service (or provide new rail service) within the corridor, then in either event
Licensee,at its expense, shall make such changes in the location or construction of
such Crossing necessary to accommodate work or Licensor Facilities. Licensee's
work shall commence within thirty (30) days of notice from Licensor and in
accordance with plans satisfactory to Licensor.
15.2 If Licensee desires to alter,relocate or change in any manner all or any part of any
Crossing after initial installation,or if Licensee is required by governmental action
to relocate,change,alter or remove Crossing after initial installation,plans therefor
shall be submitted to Licensor for approval before any such alteration, relocation,
change or removal is made. Upon approval of said plans, all other terms and
conditions of this Agreement shall apply thereto.
15.3 No further payment, other than that assessed under Articles 5, 7, 12, 16 and 20
hereof shall be required for a Crossing altered, renewed, relocated or changed
herein,provided that:
(a) the location of such relocated Crossing remains on substantially the
original crossing centerline;and
(b) the diameter of any new pipeline or the capacity of any new cable or
wireline remains within the capacity range originally permitted.
15.4 Licensor may require Licensee to make temporary changes or relocations in
Licensee's Facilities, at Licensee's cost, to meet emergency situations, including
derailment, environmental release or spill, landslide, flood, track washout, etc.,
upon notice to Licensee of necessity for such temporary changes.
16. LICENSOR COSTS
16.1 Licensor's costs and expenses for any work performed at the expense of Licensee
pursuant to this Agreement shall be paid by Licensee within forty-five (45) days
after receipt of bill therefore. Licensor, at its discretion, may require an advance
deposit for estimated costs and expenses.
16.2 Licensor expenses shall include but not be limited to cost of Licensor labor and
supervision (hereinafter "force account charges"), plus general additives, and the
actual cost of materials and equipment purchased or rented(plus insurance, freight
and handling).
16.3 Rental of Licensor equipment, if any, shall be in accordance with Licensor's
applicable fixed rates.
16.4 Any additional or alternative costs or expenses incurred by Licensor to
accommodate Licensee's continued use of Licensor's property as a result of
Licensor's Facility changes or Licensee's Facilities changes shall also be paid by
Licensee.
17. INTERFERENCE
17.1 Licensee shall operate or use such Crossing in accordance with all rules
and regulations of Licensor and applicable governmental or regulatory authority so
as not to interfere with or endanger, in the sole judgment of Licensor, any
property, traffic, operation, maintenance, employees or patrons of Licensor or of
others lawfully occupying or using Licensor's property at a Crossing location.
17.2 In the event Licensee provides and installs, either simultaneously with the
installation of any Crossing or at a later date, electrically activated cathodic or
other protective equipment for the Crossing, Licensee will submit plans and
operating frequency, voltage, and current values of such protective system to
Licensor for its approval prior to placing such system in service. Licensee will
cooperate with Licensor in conducting such tests as Licensor may deem necessary,
at Licensee's cost, to determine if such protective system adversely affects any of
Licensor's communication,signal,power,or other facilities.
17.3 If, in the judgment of Licensor,the existence, operation or maintenance of
a Crossing shall at any time cause (a)interference (including, but not limited to,
line sag or other physical interference; hindrance of street or highway crossing
gates or signals; interference from electromagnetic or electrostatic induction or
cathodic protection systems, or from groundfault, surge, stray or other currents)
with Licensor's communication or signal wires or facilities, power lines, or
electrical or electronic apparatus; or (b) interference with the operation,
maintenance or use by Licensor of its Rail Corridor, tracks, structures, pole lines,
signal or communication facilities or other property or any appurtenances thereto;
then, in either event, upon receipt of written notice from Licensor of such
interference, Licensee shall promptly make such changes in or relocation of its
Crossing,at its sole risk,cost and expense,as may be required in the sole judgment
of Licensor to eliminate all such interference. Upon Licensee's failure to remedy
or make change,Licensor may do so,at Licensee's sole cost.
17.4 Without assuming any duty hereunder to inspect Licensee's Facilities,
Licensor hereby reserves the right to inspect same and to require Licensee to
undertake necessary repairs, maintenance or adjustments to Licensee's Facilities,
which Licensee hereby agrees to make promptly, at Licensee's sole cost and
expense.
18. SIGNS
18.1 At its sole cost and expense, Licensee shall erect and thereafter routinely inspect
and maintain signs showing ownership, location and, if applicable, depth of
Crossing.
18.2 Licensee shall also provide and maintain on any electrical transmission poles or
supports placed within Licensor Rail Corridor any warning or similar sign as may
be required by applicable governmental authority.
19. RISK,LIABILITY AND INDEMNITY
19.1 Licensee hereby assumes, and shall at all times hereafter defend, indemnify, and
save Licensor harmless from and against any and all liability, loss, claim, suit,
damage,charge or expense(collectively"Losses")on account of:
(a) Death of or injury to any persons(including officers, agents,employees or
invitees of Licensor or Licensee);or
(b) Loss or destruction of any property (including claims for business or
service interruptions and costs and expenses associated therewith, but
excluding"Licensee's Property"); arising out of or resulting from or in any
way connected with construction, maintenance, relocation, repair,
renewal, alteration, change, operation or use of any Crossing, or any
structures in connection therewith, or the removal of same from Rail
Corridor of Licensor, or restoration of Rail Corridor of Licensor, except
when caused solely by the willful misconduct or gross negligence of
Licensor.
19.2 Notwithstanding Section 19.1 above, use of Licensor's Rail Corridor and
Licensor's adjacent operations involve risks of loss and damage. Licensee hereby
expressly assumes all risk of loss and damage to Licensee's Facilities resulting or
arising from Licensor operations (including electrical field creation,
electromagnetic induction,fire or derailment),regardless of any fault or negligence
of Licensor. For purposes of this paragraph, the term "Licensee's Facilities" shall
also include the contents of any Pipeline and all property of others situated or
placed upon any Crossing or adjacent Licensor property by Licensee or by such
third party at Licensee's request or for the sole benefit of Licensee.
19.3 Notwithstanding Section 19.1, and in furtherance of Section 28.2, Licensee
assumes risk of challenge to Licensor title at any Crossing solely because of
Licensee's occupation, and agrees that, in the event of any suit or claims by any
third party claiming additional compensation for Licensee's occupation of any
Crossing, Licensee will either (a)assume the defense of such suit (or file
condemnation counterclaim) and pay such compensation claim, or(b)remove the
subject Crossing within thirty(30)days of notice of such claim or suit.
20. INSURANCE
20.1 Licensee shall procure, and shall maintain during the continuance of this
Agreement, at its sole cost and expense, a policy of Commercial General Liability
(CGL) with Licensor, including assigns and operating lessees, as additional
insured, covering liability at each Crossing assumed by Licensee under this
Agreement, with a coverage limit of not less than THREE MILLION DOLLARS
($3,000,000) Combined Single Limit per occurrence for bodily injury liability and
property damage liability.
20.2 If said CGL policy does not automatically cover Licensee's contractual liability
during periods of survey, installation, maintenance and continued occupation, a
specific endorsement adding such coverage shall be purchased by Licensee. If said
CGL policy is written on a"claims made"basis instead of a"per occurrence"basis,
Licensee shall arrange for adequate time for reporting losses. Failure to arrange for
such coverage or loss report time shall be at Licensee's sole risk.
20.3 Prior to commencement of any work on or at any Crossing, Licensee shall furnish
Property Services (J180) at 500 Water Street, Jacksonville, Florida 32202, a
Certificate of Insurance as evidence of the CGL Insurance policy required in 20.1
above. This Certificate shall name Licensee as Named Insured and Licensor as
Certificate Holder. The Certificate shall show policy numbers, limits of liability,
and the insurance carrier. Under "Description of Operations," the Certificate shall
state:
Operation, maintenance, and use of Crossing covered by General
Crossing Agreement (No. CSX-826347) between the Named
Insured and CSX Transportation,Inc. dated 9/29/2016.
20.4 Additionally,for any period of construction(including Crossing repair,replacement
or renewal) or demolition (including Crossing removal) within Licensor's Rail
Corridor, Licensee shall procure a policy of Licensor Protective Liability (RPL)
Insurance. Such RPL policy shall name Licensor as the insured, and shall provide
coverage of$5,000,000 per occurrence,with an aggregate limit of$10,000,000 per
policy year. If such construction or demolition is performed by Licensee's
contractor, Licensee shall cause such RPL policy to be secured by contractor and
furnished to Licensor as in Section 20.3 prior to commencement of any work on Rail
Corridor. If offered by Licensor,in lieu of procuring such RPL policy or causing its
contractor to secure same,Licensee may pay the then current Construction Risk Fee,
as defined in Exhibit A.
20.5 Furnishing of insurance by Licensee shall not limit Licensee's liability under this
Agreement,but shall be additional security therefor.
20.6 Licensor may at any time request evidence of insurance of Licensee to
comply with this Article,and may require that Licensee purchase insurance
deemed adequate by Licensor. Failure of Licensee to comply with Licensor's
demand shall constitute a default hereunder.
20.7 Notwithstanding the provisions of Sections 20.1,Licensee may self-assume and/or
self-insure in any amount liability arising under this Agreement (except for RPL
coverage),provided:
(a) Licensee shall furnish Officer's Certificate of such Insurance to Licensor;
(b) Licensor accepts(approves)Licensee's program and self-insurance does not
relieve Licensee from payment of Construction Risk Fee, if applicable.
20.8 The CGL and RPL coverage limits shall be subject to periodic review and
adjustment by Licensor,at its sole discretion.
21. CONDEMNATION
21.1 Should Licensor's Rail Corridor at the location of any Crossing be condemned,
appropriated or acquired by any public authority, then this Agreement shall
terminate, but only as to the affected Crossing, as of the date when said Rail
Corridor shall be taken or conveyed; provided that such condemnation does not
expressly except or reserve the continued crossing rights of Licensee, and further
provided that such condemnation is of a nature or estate that would preclude
continuation of such Crossing.
21.2 No part of any condemnation damages or award shall belong to Licensee, except
to the extent of any specific award for the Facility(ies)of Licensee.
21.3 Licensor agrees to provide for continuity of Crossing, as in Article 25, in any sale
to condemning authority.
22. DURATION,RENEWAL AND/OR TERMINATION
22.1 Unless terminated for default as provided in Article 23, this Agreement shall
continue for a term of five(5)years from the date hereof(the "Initial Term").
22.2 Thereafter, this Agreement shall continue for successive periods of one (1) year
each Renewal Term; provided that no default hereunder exists on the part of
Licensee as of date of such renewal.
22.3 Either party may terminate this Agreement prior to any one (1) year Renewal
Term by giving the other party written notice thereof at least thirty(30)days prior
thereto; but such termination shall apply only to the right to make future
placements hereunder.
22.4 However, except as provided in Article 23, the expiration or termination of the
right of future placements under this Agreement shall not terminate the rights,
privileges and duties of Licensee with respect to any Crossing constructed or
existing prior to said termination. Such Crossing shall thereafter be maintained and
operated, without additions, in accordance with and subject to all other terms,
conditions and covenants of this Agreement, but as licenses revocable only in the
event of Licensee's default,as provided in Article 23,but also terminating upon(a)
Licensee's cessation of use of the wireline or Crossing for the purpose above, (b)
removal of the wireline or Crossing;and/or(c)subsequent mutual consent.
22.5 Upon complete termination of this Agreement for cause,as in Article 23,Licensee,
at its sole cost and expense, shall remove each Crossing then in existence and
restore Rail Corridor of Licensor to condition satisfactory to Licensor, and furnish
the Certificate of Termination Compliance (Exhibit "B" attached hereto) for each
within thirty (30) days of such termination. Until such removal, all other
provisions of this Agreement shall apply.
23. DEFAULT,BREACH,WAIVERS
23.1 The proper,timely and complete performance by Licensee of each term, covenant,
clause or condition of this Agreement applicable to any Crossing subject to this
Agreement shall be deemed of the essence thereof. In the event Licensee fails or
refuses to fully and completely perform any of said terms, covenants or conditions
or to remedy any breach after receiving notice to cure from Licensor to do so, as
provided in Section 23.2, Licensor shall have the right to terminate the rights of
Licensee as to any Crossing where such default occurred.
23.2 If failure or default in performance by Licensee is not deemed by Licensor to be a
safety hazard or operating emergency, Licensee shall have thirty (30) days from
the date of receipt of the Notice to from Licensor to correct such failure or default.
However, if such failure or default is deemed by Licensor to be a safety hazard or
operating emergency, Licensee shall immediately, but not later than seventy-two
(72) hours after the receipt of such notice to cure, correct such failure or default,
or, in the alternative, remove said Crossing, to the satisfaction of Licensor, all at
Licensee's sole cost and expense.
23.3 If Licensee fails to correct such failure or default within the terms of said notice to
cure, rights of Licensee under this Agreement as to the particular Crossing shall
terminate. After such termination, Licensee shall make removal of such Crossing
in accordance with Article 22 upon subsequent notice by Licensor. If Licensee
fails to make such removal, Licensor may do so or contract to do so, at Licensee's
sole cost and expense.
23.4 In the event of (a) multiple or repeated breaches or defaults by Licensee, (b)
multiple or repeated failures to cure after notice, and/or (c)Licensee's failure to
negotiate in good faith revisions to the Fee Schedule (Exhibit "A") for any
Renewal Term;Licensor may terminate this Agreement in entirety by giving thirty
(30) days notice to Licensee (regardless of any annual or other Fee having been
paid in advance). In the event of total termination of this Agreement, Licensee
shall remove any Crossing in accordance with Section 22.5, at Licensee's sole cost
and expense.
23.5 No waiver by either party of its rights as to any breach of covenant or condition
herein contained shall be construed as a permanent waiver of such covenant or
condition, or any subsequent breach thereof, unless such covenant or breach is
permanently waived in writing by said party.
23.6 Neither the failure of Licensor to object to any work done, material used, or
method of construction, maintenance, relocation, repair, renewal, alteration,
change or removal of any Crossing, nor any approval given or supervision
exercised by Licensor, shall be construed as an admission of liability or acceptance
of responsibility by Licensor or as a waiver by Licensor of any obligations,
liability and/or responsibility of Licensee under this Agreement.
24. DISCONTINUANCE BY LICENSEE
24.1 If Licensee shall discontinue use of any Crossing covered hereunder, it shall notify
Licensor in writing of such discontinuance, and shall promptly remove such
Facility(ies) from Licensor's Rail Corridor, and restore Licensor's Rail Corridor to
a condition satisfactory to Licensor, all at Licensee's cost and expense, and furnish
a Certificate of Termination Compliance (hereto attached as Exhibit "B")
therefore. Such discontinuance and/or removal of Facilities shall be done in
accordance with industry standards and in accordance with Licensor's
specifications
24.2 Licensee may also abandon any underground Crossing in place, but only in such
manner and upon terms satisfactory to Licensor. Such discontinuance and/or
removal of Facilities shall be done in accordance with industry standards and in
accordance with Licensor's specifications
24.3 If Licensee fails to make such removal and/or restoration, Licensor may do or
contract with licensed contractor to do such work at the expense of Licensee.
25. SALE OF LICENSOR RAIL CORRIDOR
25.1 In the event of sale or other conveyance by Licensor of all or a portion of its Rail
Corridor, across, under or over, which Licensee has theretofore constructed any
Crossing, Licensor's conveyance shall be made subject to the right of Licensee to
continue to occupy the Crossing on the specific segment of Rail Corridor, and to
operate, maintain, repair, renew thereon and to remove therefrom all Facilities of
Licensee,subject to all other terms of this Agreement.
25.2 In the event that Licensor Rail Corridor over or under any Crossing is conveyed to
any party under Section 25.1, in whole or in part, Licensor reserves the right to
assign, in whole or partially, its rights and duties under this Agreement,but only as
to such specific Crossing,to such Grantee.
26. ASSIGNMENT AND/OR LIMITATIONS
26.1 Licensee shall have the right to assign this Agreement, insofar as it pertains to a
Crossing, to any wholly-owned subsidiary or to any successor corporation which
acquires all or substantially all of Licensee's capital stock, property and/or
business,by merger,acquisition or conveyance.
26.2 Except as otherwise provided in Section 26.1,this Agreement shall not be assigned
by Licensee to any person, firm or corporation without the prior written consent of
Licensor.Licensor's consent shall not be unreasonably withheld.
26.3 However, no individual Crossing may be sold, assigned or leased, and no rights to
use any Crossing may be subleased, licensed or permitted, in whole or part, by
Licensee,for any reason,without the prior written consent of Licensor. Licensor's
consent shall not be unreasonably withheld.
26.4 After an approved assignment, this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
26.5 Licensor expressly reserves the right to assign this agreement, in whole or in part,
to any grantee, lessee, or vendee of Licensor's underlying property interests in the
Crossing.
27. FORMER AGREEMENTS
27.1 This Article shall have no effect on any existing longitudinal occupancy
agreements, leases,or easements.
28. TITLE
28.1 Licensee shall not at any time own or claim any right,title or interest in or
to Licensor's property occupied by Licensee's Facilities, nor shall the exercise of
this Agreement for any length of time give rise to any right title or interest in
Licensee to said property other than the license herein created.
28.2 The term"License," as used herein, shall mean with regard to any portion
of the Rail Corridor which is owned by Licensor in fee simple absolute, or where
the applicable law of the State where the Crossing is located otherwise permits
Licensor to make such grants to Licensee, as "permission to use" the Rail
Corridor, with dominion and control over such portion of the Rail Corridor
remaining with Licensor, and no interest in or exclusive right to possess being
otherwise granted to Licensee. With regard to any other portion of Rail Corridor
occupied, used or controlled by Licensor under any other facts or rights, Licensor
merely waives its exclusive right to occupy the Rail Corridor and grants no other
rights whatsoever under this Agreement, such waiver continuing only so long as
Licensor continues its own occupation, use or control. Licensor does not warrant
or guaranty that the license granted hereunder provides Licensee with all right
necessary to occupy any portion of the Rail Corridor. Licensee further
acknowledges that it does not have the right to occupy any portion of the Rail
Corridor held by Licensor in less than fee simple absolute without also receiving
the consent of the owner of the fee simple absolute estate. Further, Licensee shall
not obtain, exercise or claim any interest in the Rail Corridor that would impair
Licensor's existing rights therein.
28.3 Licensee understands that Licensor occupies, uses and possesses lands,
Rail Corridor and rail corridors under all forms of qualities and rights or facts,
from full fee simple absolute to bare occupation. Accordingly, nothing in this
Agreement shall act as or be deemed to act as any warranty, guaranty or
representation of the quality of Licensor's title for any particular Rail Corridor or
Crossing occupied, used or enjoyed in any manner by Licensee under any rights
created in this Agreement. It is expressly understood that Licensor does not
warrant title to any Rail Corridor or Crossing, and Licensee will accept the grants
and privileges contained herein, subject to all lawful outstanding existing liens,
mortgages and superior rights in and to the Rail Corridor, and all leases, licenses
and easements or other interests previously granted to others.
28.4 Licensee agrees it shall not have nor shall it make, and hereby completely
and absolutely waives its right, to any claim against Licensor for damages on
account of any deficiencies in title to the selected Rail Corridor in the event of
failure or insufficiency of Licensor's title to any portion thereof arising from
Licensee's use of occupancy thereof.
28.5 Licensee agrees to fully and completely indemnify and defend all claims
or litigation for slander of title, overburden of easement, or similar claims arising
out of or based upon Licensee's Facilities or any Crossings, or the presence of
Licensee's Facilities in, on or along any Crossing, including claims for punitive or
special damages.
29. LIENS AND/OR ENCUMBRANCES
29.1 Licensee shall not create or permit any mortgage, pledge, security,
interest, lien or encumbrances, including without limitation, tax liens and liens or
encumbrances with respect to work performed or equipment furnished in
connection with the construction, installation, repair, maintenance or operation of
Licensee's Facilities in or on any portion of the Crossing (collectively "Liens or
Encumbrances"), to be established or remain against the Crossing or any portion
thereof.
29.2 In the event that any Licensor property becomes subject to such Liens or
Encumbrances as described in Article 21.1, Licensee agrees to pay, discharge or
remove the same promptly upon Licensee's receipt of notice that such Lien or
Encumbrances has been filed or docketed against Licensor property, however,
Licensee reserves the right to challenge, at its sole expense, the validity and/or
enforceability of any such Liens or Encumbrances.
30. RECORDATION
30.1 This Agreement is not intended for recordation, and is specifically
PROHIBITED FROM RECORDATION by any party hereto, or by any other
party. Recordation hereof shall constitute a nullity and shall not be notice to
anyone of its contents or intent,and shall further constitute a breach hereof.
31. NOTICE
31.1 Any notice to be given or served upon any party hereto in connection with
this Agreement must be in writing, and shall be given by certified or registered
mail, or by nationally recognized overnight courier service, with the exception of
construction notice, which shall be provided as outlined in Article 7, and shall be
deemed to have been given and received upon actual receipt or refusal of delivery.
Such notices shall be given to the parties hereto at the following address:
If to Licensee: Augusta,Georgia W/copy to: Augusta,Georgia
Administrator's Office Attn: Law Department
535 Telfair St., Suite 910 535 Telfair St,Bldg 3000
Augusta,GA 30901 Augusta, GA 30901
Fax: (706)821-2819 Fax: (706)842-5556
If to Licensor: CSX Transportation,Inc.
Attn: CSX Real Property, Inc.
500 Water Street,J180
Jacksonville,FL 32202
Fax: (904)359-3665
W/copy to: CSX Transportation,Inc.
Attn: Law Department
500 Water Street,J180
Jacksonville,FL 32202
Fax: (904)359-7518
32. GENERAL PROVISIONS
32.1 This Agreement contains the entire understanding between the parties
hereto, and cannot be changed, altered, amended or modified, except by written
instrument subsequently executed by the parties hereto.
32.2 This Agreement is executed under current interpretation of applicable
Federal, State, County, Municipal or other local statutes, ordinances or laws.
However, each separate division (paragraph, clause, item, term, condition,
covenant article or agreement) hereof shall have independent and severable status
from each other such separate division for the determination of legality, so that if
any division is to be void, voidable, or unenforceable for any reason, such
determination shall have no effect upon the validity or enforceability of each other
division or any combination thereof.
32.3 Neither the form of this Agreement, nor any language herein, shall be
interpreted or construed in favor of or against either party hereto as the sole drafter
thereof.
32.4 Neither this Agreement, nor any provisions hereof or included herein by
reference, shall operate or be constructed as being for the benefit of any other
Licensee or cable or pipe transmission company,or any third person.
32.5 Licensor and Licensee agree to use reasonable efforts to maintain the
confidentiality of this Agreement. Licensee may disclose this Agreement to
Licensee's attorneys, accountants, regulatory authorities, affiliates, and permitted
successors and assigns, and in response to subpoena and other judicial action or as
dictated by Georgia Open Records Act. This Agreement shall be marked
"Confidential".
If Licensee violates the requirements of this Section 32.5, Licensor shall
have the right to terminate this Agreement immediately upon written notice to
Licensee. Termination of this Agreement shall apply only to Licensee's right to
any future Crossing under this Agreement, and shall not apply to an existing
Crossing approved by Licensor prior to the effective date of termination, with
respect to which this Agreement shall continue to apply in all respects.
32.6 If any amount due pursuant to the terms of this Agreement is not paid by
the due date, it will be subject to Licensor's standard late charge and will also
accrue interest at 18% per annum, unless limited by local law, and then at the
highest rate so permitted.
32.7 Licensee agrees to reimburse Licensor for all actual costs incurred by
Licensor for collecting any fees due under the Agreement.
32.8 The Licensee represents it has condemned or acquired sufficient rights for
its use on both sides of the centerline of track from the underlying property owners
at each Crossing location.
32.9 This Agreement and all questions of interpretation, construction and
enforcement hereof and all controversies arising hereunder, shall be governed
under the laws of the State of Georgia.
32.10 This Agreement shall be binding upon the successors and assigns of
Licensee and of Licensor (but only if Licensor's successors or assigns run or
operate a Licensor in,over or through the Rail Corridor).
32.11 Licensor shall refund to Licensee any overpayments collected, plus any
taxes paid in advance;PROVIDED,however, such refund shall not be made when
the cumulative total involved is less than One Hundred U.S.Dollars($100.00).
[ Signatures on the following page]
IN WITNESS WHEREOF,the parties hereto have caused this Agreement tobe executed
in duplicate,each of which shall constitute an original,the day and year first above written.
WITNESS: CSX TRANSPORTT'ION,INC.
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EXHIBIT A
Fee Schedule All fees listed are one-time payments unless otherwise noted.
A.1. Private Crossing Fees
a Wire/Cable/Fiber Crossing Fee:
i. Overhead Each Cable $4,000
b Pipe Crossing Fees:
i. Subgrade Each Pipe up twelve(12)inches in diameter $4,000
Each Pipe from thirteen(13)to twenty-four(24)inches $6,000
in diameter
Each Pipe from twenty-five(25)inches or more in Negotiated
diameter
c. Public Crossing Fees:
Overhead Wire $500
Subgrade Wire $500
Subgrade Pipe $500
d. Service Crossing Fees: $0
A.2 Ancillary Support Facilities/Occupations:
i. Each pole $2,000
ii. Tower $4,000
iii. Each guy,anchor,brace and/or stubpole(excluding marker poles) $2,000
iv. Each guy wire crossing Licensor property,but not anchored thereon $2,000
v. Each manhole/handhole $4,000
A.3 Fee Adjustments:
On the fifth anniversary of this Agreement and every year thereafter so long as this Agreement
remains in effect, the Fees identified in A.1 and A.2 shall be adjusted by the same percentage of
increase as reflected in the "Consumer Price Index for Urban Wage Earners and Clerical Workers
(CPI-W) (1982-84=100) specified for All Items - United States compiled by the Bureau of Labor
Statistics of the United States Department of Labor" ("CPI"). In no event, however, shall the
adjusted fee(s)be less than the previous year's Fees.
The fee(s)shall be increased in accordance with the following:
Current Price Index*
X fee(s)=Adjusted fee(s)
Base Price Index**
*Effective CPI in the fourth month prior to the fifth anniversary date of the Agreement.
**Effective CPI at the time of the effective date of the Agreement.
Upon change,said fees shall apply only to additional crossings applied for after the effective date of
such change.
A.4 Construction Risk Fee(if applicable):
To cover Licensor operations exposure during construction or demolition operations within fifty(50)feet of
any Licensor Rail Corridor or operating property and/or construction or demolition affecting any Licensor
bridge or trestle,tracks,roadbeds,tunnel,underpass,or crossing in lieu of securing separate equivalent RPL
policy for each new construction,if provided by Licensor
Premium per Project Per Occurrence Then current Construction Risk Fee
in place at time of project
A.5 Review Fee:
The review fee will be the then current review fee in place at the time of submission of application,plus any
review fee charged by any operating lessee. The review fee applies as follows:
i. All Crossings under A.1,except for Crossings identified in A.1.d.
ii. All occupations under A.2
EXHIBIT"B"
CERTIFICATE OF TERMINATION COMPLIANCE
WIRELINE/PIPELINE
STATE OF )
)SS.
COUNTY OF )
WHEREAS, under date of ,CSX Transportation, Inc. ("Licensor")entered into a
General Crossing Agreement with Augusta,Georgia,as"Licensee"("the Agreement"),to use Licensor property
located at or near Licensor Milepost , in the City of , County of
,State of ,for the purpose of placement of Licensee's Facilities.
WHEREAS,use of said Crossing has been terminated;
NOW,this certification is given by Licensee,by Licensee's agent or representative under oath,that:
the Crossing has been removed from Licensor property;any remaining casing pipe has been fully grouted and
sealed; all poles, guy wires, anchors, etc., have been removed from Licensor property; and Licensor property
has been restored to its condition prior to the Crossing placement.
Licensee further agrees to defend,indemnify and hold Licensor harmless from any and all loss,damage
or injury arising from or occasioned by any casing pipe left on Licensor property, including any failure of
subjacent or lateral support arising from pipe failure or collapse,for a period of five(5)years from the date of
this Certificate.
WITNESS: Augusta,Georgia
By:
Print Name:
Print Title:
Sworn to and subscribed before me
this the day of ,20
Notary Public
My commission expires: