HomeMy WebLinkAboutR-2006-031 FEC License Agreement . RESOLUTION NO. 2006-031
A RESOLUTION OF :THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO
ENTER INTO A LICENSE AGREEMENT WITH FLORIDA EAST COAST
RAILWAY, L.L.C. ("FEC"), IN CONNECTION WITH THE
REHABILITATION OF THE NW 1ST STREET RAILROAD CROSSING;
PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN
EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA
BEACH, FLORIDA:
Section 1. That the proper City officials are authorized to enter into a License
Agreement with FEC pertaining to rehabilitation of the NW Is` Street railroad crossing. Payment
of the crossing rehabilitation is estimated in the amount of$59, 372.00, A funding source will be
identified when payment is sought by the FEC.
• Section 2. That the City Manager and City Attorney are authorized to make minor
revisions to the License Agreement which are deemed necessary and proper for the best interests
of the City.
Section 3. That all resolutions or parts of resolutions in conflict with this Resolution
shall be repealed to the extent of such conflict.
Section 4. That this Resolution shall be in force and take effect immediately upon its
passage and adoption.
PASSED AND ADOPTED on February 14, 2006.
D-,, LA'
ANNE CASTRO
MAYOR-COMMISSIONER
ATT ST: ROLL CALL:
_ COMMISSIONER ANTON - YES
J r COMMISSIONER BERTINO - YES
LOUISE STILSON, CMC COMMISSIONER MCELYEA - YES
CITY CLERK VICE-MAYOR FLURY - YES
MAYOR CASTRO - YES
APPROVED AS TO FOW AND CORRECTNESS:
BY:
TH AS J. A B O
CITY ATTORNEY
•
2 RESOLUTION 42006-031
LICENSE AGREEMENT
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THIS LICENSE AGREEMENT, effective as of the day of .e 2 , 2001,
is between the FLORIDA EAST COAST RAILWAY, L.L.C. (Address: P. O. Drawer 1048, St.
Augustine, Florida 32085), a limited liability company, hereinafter called "RAILWAY' and the
CITY OF DANIA BEACH, a political subdivision of the State of Florida, hereinafter called
"C'ITY"
WITNESSETH:
That the RAILWAY, in consideration of the covenants and conditions hereinafter set
forth to be performed and kept by the CITY, hereby permits the CITY to construct, use,
maintain, repair, renew and ultimately remove an at-grade public road crossing across and over
the tracks, right-of-way and property of RAILWAY, at the RAILWAY'S Milepost 345+4,288 ,
more particularly described in Exhibit A attached hereto and incorporated herein by reference,
hereinafter referred to as the"CROSSING SITE":
The CROSSING SITE includes any railroad crossing warning signs, crossing surfaces
and automatic crossing warning devices which are, or might be, located within or adjacent to the
above-described location, provided that, the construction of the CROSSING SITE shall be done.
by RAILWAY as provided in this License Agreement ("Agreement") and further provided that,
notwithstanding rights to the CITY granted herein, RAILWAY reserves the right to perform all
work required on RAILWAY'S property including construction, drainage, lighting and
vegetation management, in which event CITY shall pay the RAILWAY the entire cost and
F� expense of labor, materials and equipment furnished by RAILWAY in performing such work.
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The status of the CITY is that of a licensee and not lessee, granting the CITY the right to use the
CROSSING SITE as specified herein.
In consideration of the granting of this Agreement by the RAILWAY, the CITY
covenants and agrees with the RAILWAY as follows:
1. The CROSSING SITE shall be used for public at-grade road crossing purposes only
and no utility, including telecommunications facilities, pipes, wires, cables; or other line or
structure shall be placed in, on or over the CROSSING SITE without the previous consent in
writing of the RAILWAY. CITY further agrees that it will at all times keep the CROSSING
SITE, together with the additional portions of the RAILWAY'S right-of-way within 325 feet of
the northerly and southerly limits or boundaries of the CROSSING SITE clear of any vegetation
or other growth greater than two (2) feet in height on each side of the tracks at the sole expense
• of the CITY and without cost to RAILWAY or lien upon RAILWAY'S property.
2. This Agreement is for an initial term of one (1) year and shall continue in effect
thereafter from year to year, subject to termination by the RAILWAY or CITY upon sixty (60)
days prior written notice.
3. The provisions and stipulations of this Agreement are a part of the consideration of the
licensing of the CROSSING SITE, and in the event the CITY shall fail to comply with any of the
covenants and conditions, then, at the option of the RAILWAY, this Agreement shall be
terminated with full legal rights and remedies retained by the RAILWAY, including but not
limited to the right to reenter, repossess, and remove the crossing if it shall elect to do so.
4. The CITY shall grant forthwith to the RAILWAY necessary permits for the
installation, construction, erection, repair and maintenance of any of the RAILWAY-owned or
maintained facilities described in this Agreement. If the CITY fails to promptly grant the
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• RAILWAY necessary permits, CITY shall bear all additional expense incurred by the
RAILWAY attributable to such failure, including costs due to slow ordering of trains. CITY
shall promptly pay such amounts upon billing by the RAILWAY.
5. Unless otherwise specified, the cost of installation, construction, maintenance and
replacement of all facilities at the CROSSING SITE, including but not limited to the crossing
structure and railroad and highway devices, whether performed by the CITY or RAILWAY,
shall be the sole responsibility of the CITY.
6. The existing warning devices, including the fixed signs, flashing lights, bells and gates
(collectively the "WARNING DEVICES"), at the CROSSING SITE are a Type III Class IV
installation as defined in the Florida Department of Transportation Schedule of Signal
Installations by Type and Class attached hereto as Exhibit C.
• The CITY shall pay unto RAILWAY annually, the annual cost of maintenance of said
WARNING DEVICES as provided in the Florida Department of Transportation's SCHEDULE
OF ANNUAL COST OF AUTOMATIC HIGHWAY GRADE CROSSING TRAFFIC
CONTROL DEVICES, as may in the future be revised or amended, a copy of which is attached
hereto as Exhibit C and incorporated herein by reference.
The WARNING DEVICES will be owned by the RAILWAY and shall remain at the
CROSSING SITE until the RAILWAY decides that they are no longer needed or should be
replaced, or until other legal requirements are imposed which shall eliminate or substantially
change their operations.
7. The two existing 34' wide Type T-modified grade crossing surfaces (the "SURFACE')
along with other improvements, are in accordance with Florida Department of Transportation
• Standard Specifications for Road and Bridge Construction, Index No. 560, as may be revised or
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• amended in the future. When the RAILWAY determines that the replacement of the new
SURFACE is more economical than its continued maintenance, the RAILWAY shall have the
exclusive option to replace the SURFACE with a comparable or improved structure. The
replacement costs of the new SURFACE shall be the sole responsibility of the CITY. The CITY
shall, at its sole expense, maintain and replace the remainder of the road inside the RAILWAY'S
right-of-way, plus any paving which may be located between the ends of the ties. The
RAILWAY shall provide a construction watchman at said CROSSING SITE while work is being
performed by the CITY under the provisions of this Agreement, at the sole expense of the CITY.
S. The CITY agrees, acknowledges and understands that the RAILWAY reserves the
right to make any changes at any future time in its existing tracks or other facilities, including the
installation, maintenance and operation of any additional track or tracks or other facilities on its
right-of-way at the CROSSING SITE. The CITY agrees to bear the total expense of any changes
or additions to the pavement and traffic signal devices, the SURFACE, the WARNING
DEVICES or other railroad signalization equipment at the CROSSING SITE, whether these
changes or additions are required by law or order of any public or judicial authority, done
voluntarily by the RAILWAY, or requested by the CITY.
9. The CITY agrees that it will install, maintain and replace all necessary drainage
facilities to prevent the accumulation of surface water,due to the existence of the CROSSING
SITE. Such facilities must first be approved by the RAILWAY and any governing bodies having
jurisdiction thereof and operation of the facilities shall also be subject at all time to their
approval. An additional license agreement may be required by the RAILWAY, depending upon
the location of such drainage facilities and type, size, depth and other specifications of the
• proposed facilities, as submitted to the RAILWAY.
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• 10. Lighting facilities adequate to comply with the requirements of the laws of the State
of Florida covering illumination of road crossing shall be installed, maintained and replaced at or
near this CROSSING SITE by and at the sole cost of CITY.
11. The CITY further covenants to pay the RAILWAY, within thirty (30) days after
presentation of the same, all bills submitted by Railway including maintenance bills as set forth
in Paragraph 6 above and all bills for electricity for the lighting and illumination of the
CROSSING SITE if same are provided by Railway.
12. At the termination of this Agreement for any cause, or upon termination of the
CITY'S use of the CROSSING SITE as herein described, all rights of the CITY shall terminate
and the CITY shall remove, under the RAILWAY'S supervision and direction, at CITY'S entire
cost and expense, said road and all non-RAILWAY-owned improvements placed upon the
. RAILWAY'S right-of-way and restore the ground to its original condition.
13. The CITY shall indemnify, defend and hold harmless RAILWAY for assessments or
other charges of any kind whatsoever against the RAILWAY at any time for any portion of
public improvements installed on or within two hundred (200) feet of the CROSSING SITE
arising out of the existence of the CROSSING SITE.
14. The CITY shall not in any way, or at any time, interfere with or obstruct
RAILWAY'S right-of-way, the movement of RAILWAY'S trains and other railroad operations,
or interfere with the RAILWAY'S use thereof, or the use thereof.by RAILWAY'S assigns,
invitees, lessees or licensees.
15. To the extent required by law, the CITY acknowledges the waiver of sovereign
immunity for liability in tort contained in Florida Statutes Section 768.28 and acknowledges that
• such statute permits actions at law against the CITY to recover damages set forth in such statute
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• for injury or loss of property, personal injury, or death caused by the negligence or wrongful act
or omission of an employee of CITY while acting within the scope of the employee's office or
employment under circumstances in which CITY, if a private person, would be liable under
general laws of this State.
The CITY will include in any contract which it may let for the whole or part of said
work to be performed hereunder by or for the CITY, each and every one of the terms and
conditions included on the document entitled "INDEMNITY OF FLORIDA EAST COAST
RAILWAY, L.L.C. AND INSURANCE REQUIREMENTS" attached hereto and made a part
hereof as Exhibit D.
16. (a) CITY, at its own cost and expense, when performing any work in connection
with the CROSSING SITE shall request RAILWAY to furnish any necessary construction
• watchmen for the protection of RAILWAY'S employees, property and train operations.
RAILWAY shall be notified at least one (1) week in advance of the performance of any work in
connection with the CROSSING SITE.
(b) In addition to, but not in limitation of any of the foregoing provisions, if at any
time RAILWAY should deem it necessary to place construction watchmen for the protection of
any person or property, during the construction, maintenance, repair, alteration, renewal, or
removal at the CROSSING, SITE, RAILWAY shall have the right to place such construction
watchmen, or other persons at the sole cost and expense of the CITY. Upon receipt of a bill
from RAILWAY, CITY shall promptly pay RAILWAY the full cost and expense of such
construction watchmen. The furnishing or failure to furnish construction watchmen, or other
persons by the RAILWAY under this paragraph, however, shall not release CITY from any and
• all other liabilities assumed by CITY under the terms of this Agreement, including its obligations
XFrm0499 Page 6
• under Paragraph 15 hereof. The CITY shall give the RAILWAY one (1) week's advance written
notice when it or its contractor or anyone claiming under this Agreement proposes to enter upon
the CROSSING SITE to perform work under this Agreement in order that proper warning may
be provided for trains. In emergency situations CITY shall give the RAILWAY telephonic
notice. The CITY further agrees that at all times its personnel or agents are on the property of
the RAILWAY, they will be accompanied by a RAILWAY representative and any cost involved
will be borne by the CITY.
17. After the SURFACE and WARNING DEVICES have been installed and all other
work to be performed by the RAILWAY under this Agreement has been completed and found to
be in satisfactory working order by the RAILWAY, the RAILWAY shall furnish to the CITY an
invoice showing the final total cost of material, labor and equipment furnished by the
• RAILWAY, and CITY shall pay such invoice no later than thirty(30) days from the date thereof.
18. Installation, maintenance and replacement of any and all railroad advance
warning signs and pavement markings on any road approaching the CROSSING SITE shall be
the sole responsibility and cost of the CITY, and at its sole expense.
19. The CITY shall promptly pay RAILWAY all charges for replacement, repair or
otherwise of the CROSSING SURFACE and RAILROAD DEVICES within thirty (30) days of
the date of invoice. Failure to promptly pay to RAILWAY amounts billed as due under this
Agreement shall constitute default by the CITY.
20. The CITY hereby acknowledges that it has been notified that its personnel will or
may be working in an area containing active fiber-optic transmission cable as well as other
cables and other facilities.
•
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• 21. If any provision or provisions of this Agreement 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 thereby.
22. This Agreement will be governed by the laws of the State of Florida. It constitutes
the complete and exclusive statement of the Agreement between the parties which supersedes all
proposals, oral or written, and all other communications between the parties related to the subject
matter of this Agreement. Any future change or modification of this Agreement must be in
writing and signed by both parties.
23. It is understood by and between the respective parties hereto that this License
Agreement cancels and supersedes previous License Agreements for this location regarding
matters contained herein between the RAILWAY and any other person or entity.
•
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® IN WITNESS WHEREOF, the RAILWAY and the CITY have caused this instrument to
be executed in their corporate names and respective seals to be hereunto affixed in duplicated the
day first hereinafter written by their undersigned officials thereunto lawfully authorized.
Signe sealed and FLORIDA EAST COAST RAILWAY,
D red in jesence of. L.L.C., a Limited Liability Company
B44::-tSml)
4 T: CO.
ei;tUn4es to RAILWAY Assistant Secretary
DATE: 2-1 2 3 f a
CITY OF DANIA BEACH, a political
subdivision of the State of Florida
By: _ 0""6.2,"
Anne Castro
1 Title: Mayor
Witne ses as to
- Attest:
Louise Stilson
I ° Title: [ i ty Cl ark
Title: City Manager
Date:
Approved as to form and
correctness:
4
a.1
bro
Title: City Attorney
•
XFrm0499 Page 9
• LICENSE AREA
November 23, 2005
File: 345/39/4288
N.W. Is' STREET—MILEPOST 345+4,288' —FDOT # 272573H
A PARCEL OF LAND WITH UNIFORM WIDTH OF SEVENTY (70) FEET
NORTHERLY AND SOUTHERLY AND EXTENDING EASTERLY AND
WESTERLY ACROSS THE RIGHT-OF-WAY AND MAIN TRACK OF THE
RAILWAY AT N.W. IST STREET IN DANIA BEACH, FLORIDA, WITH
LONGITUDINAL CENTER LINE OF SAID PARCEL LOCATED FOUR THOUSAND
TWO HUNDRED EIGHTY EIGHT (4,288) FEET SOUTHERLY FROM THE
RAILWAY'S MILE POST NO. 345 AS MEASURED FROM JACKSONVILLE,
FLORIDA, SAID RIGHT-OF-WAY OF THE RAILWAY HAVING A TOTAL WIDTH
OF ONE HUNDRED (100) FEET AT THIS LOCATION, BEING FIFTY (50) FEET IN
WIDTH ON THE EAST AND WEST SIDE OF THE CENTERLINE OF THE MAIN
TRACK.
•
EXHIBIT "A"
FLORIDA DEPARTMENT OF TRANSPORTATION
Listed Below are signal installations by type and class:
FLASHING SIGNALS - ONE TRACK
Type = 1, Class = 1
FLASHING SIGNALS - MULTIPLE TRACKS
Type = 1, Class = 2
FLASHING SIGNALS AND CANTILEVER - ONE TRACK
Type = 2, Class = 1
FLASHING SIGNALS AND CANTILEVERS - MULTIPLE TRACKS
Type = 2, Class = 2
FLASHING SIGNALS AND GATE - ONE TRACK
Type = 3, Class = 3
FLASHING SIGNALS AND GATE - MULTIPLE TRACKS
Type = 3, Class = 4
FLASHING SIGNALS AND GATE WITH CANTILEVER - ONE TRACK
• Type = 4,"Class = 3
FLASHING SIGNALS AND GATE WITH CANTILEVER - MULTIPLE TRACKS
Type = 4, Class = 4
TYPE OF TRAFFIC CONTROL DEVICES
I Flashing signals
II Flashing signals with cantilevers
III Flashing signals with gate
IV Flashing signals with cantilevers & gate
CLASS OF TRAFFIC CONTROL DEVICES
I Flashing signals - one track
II Flashing signals - multiple track
III Flashing signals & gates - one track
IV Flashing signals & gates - multiple track
• EXHIBIT "C"
FDOT-Type-Class.doc
SCHEDULE OF ANNUAL COST OF AUTOMATIC
HIGHWAY GRADE CROSSING TRAFFIC CONTROL DEVICES
Annual Maintenance Cost Exclusive of Installation
CLASS DESCRIPTION COST*
I Flashing Signals — One Track $1,870.00
II Flashing Signals — Multiple Tracks $25474.00
III Flashing Signals and Gates— One Track $2,820500
IV Flashing Signals and Gates — Multiple Tracks $31540.00
•
AUTHORITY: FLORIDA ADMINISTRATIVE RULE: 14-46.002
Responsibility for the Cost of Automatic Highway
Grade Traffic Control Devices
F. A. RULE EFFECTIVE DATE: July 22, 1982
GENERAL AUTHORITY: 334.044. F. S.
SPECIFIC LAW IMPLEMENTED: 335.144.F. S.
*This schedule was effective July 1, 2001, and will be reviewed every 5 years and revised as appropriate
based on the Consumer Price Index for all Urban Consumers published by the U.S. Department of Labor.
• EXHIBIT "C"
INDEMNITY OF FLORIDA EAST COAST RAILWAY, L.L.C.
• AND INSURANCE REQUIREMENTS
The Contractor by execution and delivery hereof, agrees that it shall and will at all times
hereafter indemnify, defend and save harmless the Florida East Coast Railway, L.L.0 from and
against all judgments, and all loss, claims, damages, costs, charges, and expenses ("Costs")
which it may suffer, sustain, or in anywise be subjected to on account of or occasioned by the
operations of the Contractor, or any of the subcontractors, or both, whether directly or indirectly
under, or pursuant to, this construction contract, including any such Costs arising from the death,
bodily injury or personal injury of, as follows:
Of any person, including without limitation upon the generality of the foregoing
description, employees and officers of Florida East Coast Railway, L.L.C., employees and
officers of materialmen, employees and officers of the Contractor, employees and officers of all
subcontractors, and from loss damage, injury and loss of use of any real or personal property (a)
in which Florida East Coast Railway Company has any ownership interest, and (b) personal
property in the custody of Florida East Coast Railway Company under any transportation
contracts; including without limitation upon the generality of the two foregoing enumerations, all
railroad equipment commonly described as rolling stock and the contents of the same.
• In furtherance of its obligation to indemnify, defend and save harmless, Contractor shall
procure and keep in effect comprehensive general liability insurance in the limits of
$5,000,000.00 each occurrence for bodily injury or death and $3,000,000.00 property damage
each occurrence with a $5,000,000 aggregate covering all obligations of Contractor to indemnify
the Railway by Contractual Assumed Liability Endorsement, with all railroad exclusives
removed. Alternatively, Contractor may procure and keep in effect during the life of this
construction contract, as aforesaid, Railroad Protective Liability Policies insuring the Railway
directly as insured against losses and damages with the limits specified in this paragraph.
In addition to the above, Contractor shall, at its cost and expenses, maintain a Workman's
Compensation Insurance Policy as required in the State of Florida.
All such insurance, directly or indirectly for the benefit of the Railway, shall be in a form
satisfactory to Railway's Manager of Insurance and issued by a casualty company/insurance
company authorized to do business in the State of Florida that has a `Best's" rating of A or A+
and a financial category size of Class XII or higher.
• EXHIBIT "M
fEC -
Florida East Coast
RAIL WAY, L. L. C.
March 10, 2006
Filer 345/39/4288
DANIA BEACH: GRADE CROSSING MATTERS
N.W. 1ST STREET, MILEPOST 345+4,288' —FDOT# 272573H
FULLY EXECUTED LICENSE AGREEMENT
Ms. Miriam Nasser
Deputy City Clerk
City of Dania Beach
100 West Dania Beach Boulevard NAAR 1 3 2006
Dania Beach, Florida 33004
Dear Ms. Nasser:
Please find enclosed for your file, one fully executed License Agreement dated February 23, 2006,
• covering the above-noted crossing.
Thank you for your cooperation in this matter and should you have any questions or comments, I
can be reached at (904) 826-2383.
Sincerely,
Joseph L. Schonder
Manager—Engineering Services
Enclosure
cc: Mr. Alex Coggins—As information.
Ms. Bonnie Seyle— Copy of agreement attached for annual billing.
Ms. Kathy Lowe—Please revise crossing book and database.
• Mr:Andy Fowler—Please revise your records accordingly.
Mr. Ron Crawford—As information.
Ph:(904)826-2306 •Fax:(904)826-2290
One Malaga Street•P.O.Box 1048-St.Augustine,FL•32085-1048
d
CITY OF DANIA BEACH
MEMORANDUM
TO: Mayor and Commission
CC: Ivan Pato, City Manager
Dominic Orlando, Public Services Director
Patty Varney, Finance Director
FROM: Thomas J. Ansbro, City Attorney
DATE: February 7, 2006
RE: Florida East Coast Railway License Agreement for NW I" Street; Grade
Crossing Rehabilitation
•
Attached are copies of correspondence from the FEC and the Agreement mentioned in
it. Unfortunately, there is little choice in dealing with the railroads as to grade crossings. A
number of grade crossing license agreements currently exist between the City and FEC (as
well as between the City and the CSX railroad).
The unanticipated "estimated" cost of the NW 1" Street grade crossing rehabilitation is
$59,732.00. An appropriation from the contingency fund will be necessary.
This is ready for Commission approval (by Resolution).
TJA:slw
Attachments
WP
EC)
Florida &st Coast
RAILWAY, L. L. C.
November 22, 2005
Pile: 345/3")/4288
DANIA BEACH: GRADE CROSSING MATTERS
2006 GRADE CROSSING REHABILITATION PROGRAM
NOTICE OF INTENT
Mr.Ivan Pato
City Manager
City of Dania Beach
100 West Dania Beach Boulevard
Dania Beach, Florida 33004
Dear Mr. Pato:
The Railway has completed our field inspection of all grade crossings on our line and compiled a list of
crossings for our 2006 Grade Crossing Rehabilitation Program.
Listed below are crossings that fall within your jurisdictional responsibility and are scheduled to be re-
worked in the upcoming year beginning January 1, 2006. With each crossing you will find an estimated cost
for the City's use in budgeting for the crossing rehabilitation. It should be noted this is an estimate only and
reflects the current cost of material and labor,all charges will be billed on an actual cost basis.
N.W. I"Street Milepost 345+4288' Agreement Enclosed $59,732.00
The Railway has implemented a program with the goal of placing all crossings under proper agreement. As
such, we have reviewed the files for the crossings on our 2006 list and have identified the current grade
crossing license agreement for each. During this process we found there are active crossings on our property
that are not covered by an agreement. It is vital that each crossing is properly licensed to assure the
maintenance and liability responsibilities are directed to the proper entity. The Railway does not receive any
benefit from the existence of crossings and in fact such crossings increase the maintenance cost of the
Railway and are a safety concern. As information, we have been working closely with the Florida
Department of Transportation to reduce the number of at-grade crossings through closures and grade-
separated crossings. The absence of an agreement escalates liability at crossings; therefore it is imperative
all crossings over our property and tracks are properly licensed.
I have enclosed part and counterpart of the Railway's standard grade crossing license agreement for the
above-noted crossing. Please review the agreement, sign, and return both copies to the Railway for final
execution. Once fully executed, we will return one original for your file.
Should you have any questions or comments concerning this matter please call me at(904) 826-2383.
Sincerely,
Joseph L. Schonder
Manager—Engineering Services
Ph:(904)826-2306 •Fax:(904)826-2290
One Malaga Street• P.O.Box 1048•St.Augustine,FL- 32085-1048