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Home My WebLink AboutR-2016-140 Authorizes Letter of Amendment with Florida East Coast Railway (FECR) & All Aboard Florida Operations (AAF) to Amend NW 1st St. Crossing Agreement with FEC to Allow AAF to Make Improvements RESOLUTION NO. 2016-140 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE A LETTER AMENDMENT WITH THE FLORIDA EAST COAST RAILWAY, LLC ("FECR") AND ALL ABOARD FLORIDA OPERATIONS, LLC ("AAF") TO AMEND THE CITY'S EXISTING NORTHWEST 1IT STREET CROSSING AGREEMENT WITH FEC TO ALLOW AAF TO MAKE IMPROVEMENTS AT THE CROSSING GOVERNED BY THE EXISTING AGREEMENT AND FOR AAF TO INCUR THE INITIAL EXPENSES FOR INSTALLATION OF THOSE IMPROVEMENTS; PROVIDING FOR CONFLICTS; FURTHER PROVIDING FOR AN EFFECTIVE DATE. WHEREAS,the City entered into an Agreement relating to the City roadway crossing of the Florida East Coast Railway("FECR") and Northwest lst Street many years ago; and WHEREAS,All Aboard Florida, LLC ("AAF") is developing an inter-city passenger rail service from Miami to Orlando; and WHEREAS, AAF will be making certain upgrades at the crossing within the City in order to meet minimum standards to permit passenger trains to use the FECR tracks; and WHEREAS, the upgrades and improvements will be paid for and completed by AAF; and WHEREAS, a letter amendment to the existing Crossing Agreement provides that while AAF will be paying for the upgrades and improvements, its doing so does not waive FECR's rights to have future crossing improvements paid for by the City pursuant to the crossing agreement; and WHEREAS, pursuant to the existing agreement, the City is and will be responsible for all other costs subsequent to AAF paying the initial development costs; and WHEREAS, the letter amendment provides that FECR will provide advance notice to the City no later than May of each year as to anticipated maintenance costs to be borne by the City which will be for the City's next ensuing fiscal year; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH,FLORIDA: Section 1. That the proper City officials are authorized to execute a Crossing Letter Agreement, a copy of which is attached as Exhibit"A" and made a part of and incorporated into this Resolution by this reference. Section 2. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 3. That this Resolution shall become effective upon its passage and adoption. PASSED AND ADOPTED on October 25, 2016. ATTEST m�°��vAS LOUISE STILSON, CMC C A. SALVINO, SR. CITY CLERK � � AYOR APPROVED AS FO AND CORRECTNESS: THO AS J. SBR CITY ATTORNEY 2 RESOLUTION#2016-140 EC) Florida East Coast R A I L W A Y Robert B. Ledoux Senior Vice President and General Counsel September 30,2016 VIA FEDEX City of Dania Beach Mr. Robert Baldwin City Manager 100 W. Dania Beach Blvd. Dania Beach, FL 33004 Re: Agreement between Florida East Coast Railway, L.L.C.("FECR"), City of Dania Beach (the"Licensee")and All Aboard Florida-Operations LLC("AAF") with regard to the documents listed on Exhibit A hereto(as amended and assigned to date,the"Crossing Agreements")relating to the crossings referenced therein (the "Crossings") Dear Mr. Baldwin: This letter shall serve to memorialize the agreement reached between Licensee, FECR and AAF relating to the Crossing Agreements in existence that govern the Crossings(as such Crossings are more particularly defined in the Crossing Agreements)and terms relating to the construction,maintenance and safety of such Crossings. Specifically, and without modification to any other term, obligation or condition set forth in the Crossing Agreements, Licensee, FECR and AAF hereby agree to the following terms and conditions, in exchange for good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged by the parties: • AAF is developing an intercity passenger rail service from Miami to Orlando(the"Project"). • AAF shall incur the necessary and reasonable capital investments to complete the initial installation of crossing improvements at the Crossings to the extent required for the Project to comply with currently applicable laws regarding safety at public crossings and commence passenger rail service (the"Initial Development Cost").It is acknowledged and agreed,however,that the AAF's commitment to cover the Initial Development Cost for the installation of crossings improvements at the Crossings for the Project shall not encompass the cost of any other improvements to the Crossings, including any improvements required or desired by Licensee such as those related to the establishment of quiet zones. The Initial Development Cost expressly excludes any and all costs related to such other improvements. In consideration of the foregoing, Licensee confirms the following: • The Crossings,as improved for the Project,shall continue to be governed by the Crossing Agreements. • The Licensee shall not be responsible for the Initial Development Cost, but shall be liable for any and all other costs due under the Crossing Agreements with respect to the Crossings as improved, provided, however, that Licensee shall be entitled to receive an estimate of any and all costs or City of Dania Beach September 30, 2016 Page 2 expenses to be paid by Licensee pursuant to the Crossing Agreements at least ninety(90) days in advance of the date by which payment shall be due. • AAF is an intended third-party beneficiary of the Crossing Agreements, with the right to enforce the terms and conditions thereof. • Except as expressly provided herein with regard to the planned improvements to the Crossings,the Initial Development Cost and AAF's beneficiary status, all of the terms, conditions, covenants, agreements and understandings contained, in the Crossing Agreements shall remain unchanged and in full force and effect, and the same are hereby expressly ratified and confirmed by the Licensee. This includes, without limitation, the Licensee's continuing obligations related to construction, maintenance, safety, future changes and upgrades to the Crossings and the reimbursement of costs, all of which would continue to be governed by the Crossing Agreements, provided, however, that Licensee shall be entitled to receive an estimate of any and all costs or expenses to be paid by Licensee pursuant to the Crossing Agreements at least ninety (90) days in advance of the date by which payment shall be due. If these terms are acceptable, please sign this letter in the space provided at the end of this signature page and return that signed document to us.To facilitate this process, it is agreed that this letter will be executed in counterparts,each of which will be deemed to be an original copy of this letter and all of which,when taken together,will be deemed to constitute one and the same agreement.It is also agreed that signed counterparts may be transmitted electronically (as an Adobe PDF file) or by facsimile, and that delivery in that way shall have the same force and effect as the delivery of original signatures. Also, this letter will be construed in accordance with the laws of the State of Florida, without regard to conflict of laws principles. Please understand, however,that the terms of this letter and any offer presented herein will expire and shall be null and void on the date that is 60 days of the date hereof if it has not been executed and returned to us by then. Further, if the improvements at the Crossings for the Project are not completed by December 31, 2018, the terms of this letter and any offer presented herein will expire and will be null and void. As a corollary matter, FECR and AAF recognize the City's need for timely estimates for annual maintenance costs and will use commercially reasonable efforts to provide such estimates for a given fiscal year to the City in May of the preceding fiscal year so that the City may include such line item in their budget. We do hope to hear from you soon and look forward to working together. If you should have any questions, please contact our team at your convenience. Sincerely, Flori st Coast Railwa L.L.C. By: Print Name: Print Title: &A for V I"Le `f rr 5,�&A-f 7150 Philips Highway,Jacksonville,FL,32256 Phone:904/279-3111•robert.ledoux@fecrwy.com City of Dania Beach September 30, 2016 Page 3 AGREED,ACKNOWLEDGED AND CONFIRMED: All Aboar Flo 'da-Operations LLC By: '' ' Print NameV �1 (Wi-j Print Title: ATTEST: CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation LOUISE STILSON, CIVIC ROBERT BALDWIN CITY CLERK CITY MANAGER APPROVED AS TO FORM AND CORRECTNESS: THOMAS J.ANSBRO CITY ATTORNEY Cc: Robert Ledoux, FECR Myles L.Tobin,AAF Tom Ansbro, Esq., City Attorney 7150 Philips Highway,Jacksonville,FL,32256 Phone:904/279-3111•robert.ledoux@fecrwy.com City of Dania Beach September 30, 2016 Page 4 EXHIBIT A LIST OF CROSSING AGREEMENTS N.W.1st Street-DOT#272573H 7150 Philips Highway,Jacksonville,FL,32256 Phone:904/279-3111•robert.ledoux@fecrwy.com