title
CSX INDEMNIFICATION AGREEMENT (B)
This is a request for authorization to enter into an Environmental Indemnification Agreement with CSX Transportation, Inc. in conjunction with the 6th Street Rail Trail Project.
recommendation
The City Commission approve the Environmental Indemnification Agreement and authorize the City Manager to execute the Agreement, subject to approval by the City Attorney as to form and legality.
explanation
STAFF REPORT
Acquisition of the property for the 6th Street Rail-Trail project is being managed by the State of Florida, through the Department of Environmental Protection - Office of Greenways and Trails (OGT). OGT is negotiating with the Trust for Public Lands (TPL) and CSX Transportation, Inc. (CSX) for the purchase of a section of abandoned railroad right-of-way for the 6th Street Rail Trail. The right-of-way generally starts at the northern terminus of the Downtown Connector Rail Trail (just west of Southeast 4th street) and runs northerly up to the south right-of-way line of Northwest 16th Avenue. Once TPL acquires the property from CSX, TPL will then convey the property to the State of Florida. The City intends to enter into a Management Agreement with the State to improve and maintain the premises for use as a recreational trail.
Due to the discovery of contamination on the property, Water & Air Research, Inc. performed environmental testing on the ground water and soil to determine if the concentration of contaminates exceeded allowable limits. Testing revealed low level petroleum and arsenic contamination; however, according to the consultant, the petroleum compounds do not represent a hazard to construction workers or trail users when their activities are limited to the ground surface, as they are in this case. This opinion is based on data associated with the concentration of the petroleum compounds as well as their depth below the ground surface. Excessive concentrations of arsenic have been found and mapped along the proposed trail and, in some instances, on adjacent properties. Containment techniques such as paving, sod, landscape and mulch are being recommended as appropriate measures for the trail designer to incorporate during the design phase of the project.
CITY ATTORNEY MEMORANDUM
The Agreement with CSX requires the City to remediate the premises according to FDEP standards prior to the use of the trail for its intended purpose. To this end, CSX is providing funding in the amount of $184,700 for the purposes of remediation of both onsite and offsite contamination, with any balance remaining to be used for the improvement and maintenance of the premises.
The Agreement also requires an indemnification of CSX by the City of Gainesville. In July 2006 the City Commission adopted a general policy, by resolution, which prohibits the indemnification of other parties except under certain specific circumstances. The policy can be waived based on the availability of goods and services from other sources, the City's need/desire for the goods or services, and the probability of a loss occurring. The indemnification in this Agreement is limited to the known contamination (that specifically identified in the environmental reports listed) and is limited to a maximum sum of $200,000 for all claims arising out of a single incident and a maximum amount of $100,000 for any one claim.