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HomeMy WebLinkAboutResolution_41-98/99_06/10/1999 RESOLUTION NO. 41 -98/99 I A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, APPROVING A LEASE AGREEMENT BETWEEN FLORIDA EAST COAST RAILWAY COMPANY AND THE VILLAGE OF TEQUESTA FOR BEAUTIFICATION OF THE TEQUESTA DRIVE CROSSING WITH A BASE RENTAL FEE OF $175 ANNUALLY, EFFECTIVE JULY 11, 1999, AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME ON BEHALF OF THE VILLAGE. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS: Section 1. The Lease Agreement for Beautification of the Tequesta Drive Railroad Crossing With the Florida East Coast Railway Company Attached Hereto as Exhibit "A" and Incorporated by Reference as a Part of This Resolution Having an Annual Rental of $175 is Hereby Approved and the Mayor of the Village is Authorized to Execute the Lease Agreement on Behalf of the Village. THE FOREGOING RESOLUTION WAS OFFERED by Councilmember Hansen who moved its adoption. The motion was seconded by Councilmember Schauer and upon being put to a vote, the vote was as follows: FOR ADOPTION AGAINST ADOPTION Joseph N. Capretta Basil E. Dalack Carl C. Hansen Ron T. Mackail Elizabeth A. Schauer The Mayor thereupon declared the Resolution duly passed and adopted this 10th day of June, A.D., 1999. MAYOR OF TEQUESTA ATTEST: �GPt�, �• �� "� Ron T. Mackail ,..`� 0�-- oann Mang a 'ello Village Clerk WP80 \MyFiles \Resolutions \41 -98 -99 • • THIS LEASE, is effective this 11th day of July A.D. 19 99 by and between FLORIDA EAST COAST RAILWAY COMPANY, hereinafter called "Railway" and VILLAGE OF TEQUESTA, a Municipal Corporation of the State of Florida, whose address is P.O. Box 3273, Tequesta, Florida 33469 -0273, hereinafter called "Lessee ", WITNESSETH: That in consideration of the covenants herein contained to be kept and performed, Railway does hereby lease to said Lessee the following described property: That portion of the operating right of way of the Florida East Coast Railway Company within the boundaries of the Village of Tequesta, extending from the right of way limits to within 25 feet of the centerline of Railway's tracks for a distance of 100 feet northerly and southerly from the centerline of Tequesta Drive (Mile Post No. 281 plus 4096.2'). • All as shown on Railway's Drawing A -1244, dated April 9, 1990, attached hereto and made a part hereof. 5758 File: 281 -1 -2 Page 1 • • TO HAVE AND TO HOLD the hereby leased property: For the term of One (1) year from the effective date hereof subject to renewal as provided in paragraph D hereof, or until terminated as hereinafter provided. LESSEE COVENANTS TO PAY RENTAL AS FOLLOWS: Annual rental of $175.00, plus Florida Sales and Use Tax if applicable, payable in cash upon the execution and delivery of this lease, and if renewed, the same amount in cash in advance for each and every year thereafter until terminated. All rentals for initial and renewal terms are payable in cash on the date specified, in advance, without oral or written demand. Lessee hereby expressly waiving such demand. LESSEE AND RAILWAY COVENANT AS FOLLOWS: A. In the event of termination of this lease by Railway before the expiration of the initial or any renewal terms, any rental paid in advance unearned shall be returned to Lessee, less any amounts owing to Railway under this lease. B. That none of the provisions hereof shall be waived or modified, except by Railway, or by mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor subsequent verbal waiver, or modification, shall be binding under any circumstances. Further, that this lease constitutes the entire understanding of the parties and that neither the failure of the Railway • to enforce each and every provision, nor any course of conduct by the Railway shall be considered as a waiver of these provisions. C. Either party may, in its discretion, for any reason whatsoever, terminate this lease at any time by the giving of notice to the other party as hereinafter provided. If this lease is for a term of one or more years, then 30 days prior notice in writing of the intention of the party to terminate this lease shall be given to the other party. If this lease is for any term less than one year, then 10 days prior notice in writing of the intention of the party to terminate this lease shall be given to the other party; PROVIDED, HOWEVER, Railway may, at its option, terminate this lease for any default or breach of lessee by giving 2 days notice in writing of such termination to the lessee. Any notice of termination shall be delivered to the other party by placing such notice in the United States mail with sufficient postage directed to the other party's post office address, either as last furnished to the terminating party or as otherwise known to it. D. If Lessee holds over and remains in possession of the hereby leased property after the expiration of the term specified in this lease, or any renewals of such term, this lease shall be considered as renewed for one (1) year, subject to the same terms and conditions as herein contained in this lease. That Lessee shall have no expectation of renewal and that the term of this lease is only for the time specified herein, subject always to the termination provisions and regardless of the length of time that Lessee has occupied the leased property, or the construction by Lessee of any buildings, structures, works, paving, barricades or personal property placed thereon. Page 2 • E. That if any provision or provisions of this lease shall be held to be invalid, illegal or • unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. • F. That Lessee shall use the leased property only for: Beautification AND LESSEE COVENANTS WITH RAILWAY AS FOLLOWS: 1. To keep the leased property and any buildings or other structure, now or hereafter erected thereon, in good condition and repair at Lessee's own expense during the existence of this lease, and to keep the leased property or premises free and clear of any and all grass, weeds, brush and debris of any kind, so as to prevent the same becoming dangerous, inflammable or objectionable. Railway shall have no duty to inspect or maintain any of the leased property, buildings, or other structures, if any, during the term of this lease. 2. To vacate, quit and deliver up the leased property on or before any termination date of this lease in as good condition as it is now. 3. Not to erect or cause to be erected any building or other structure, or any addition to • existing buildings or structures on the leased property without first obtaining the approval in writing by Railway of the location, material and construction of the same. 4. Not to sublet the leased property or any part thereof, nor assign this lease, without the consent in writing of Railway, this lease being executed by Railway upon the credit and reputation of Lessee. Acceptance by Railway of rental from a third party shall not be considered as an assignment. 5. Not to take any action or allow any action to be taken by third parties which will interfere with or disparage Railway's title to the leased property. 6. Not to permit the use of the leased property in any manner that will obstruct or interfere with the operation of the Railway, or use of its property. 7. Not to make or suffer any waste or any unlawful, improper, or offensive use of the leased property or premises, or any use disapproved by Railway. 8. To the extent allowed by law, and subject to the limitations of Florida State Statutes 768.28, to indemnify, save and hold harmless Railway, its agents, servants and employees from and against all loss, claims, costs charges, expense, suits, damage and judgments, which they may suffer, sustain or in anywise be subjected to, or for which it may be held liable on account of the death, personal injuries, damage or loss to any person or persons, including employees, agents and officers of Railway and of Lessee, directly or indirectly arising out of or on account of the leasing to or use • Page 3 • • of the property by Lessee; whether due or claimed to be due by the joint negligence of Railway, its employees, agents or servants, or otherwise. 9. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28, • to indemnify, save and hold harmless Railway, its agents, servants and employees from and against all loss, claims, costs, charges, expense, suits, damage and judgments, which they may suffer, sustain or in anywise be subjected to, or for which it may be held liable on account of any loss or damage caused in any manner to any of Lessee's buildings, structures, works and any personal property whatsoever of Lessee, situated, placed, kept or stored on, in or near the property or premises hereby leased, as well as on account of loss or damage to any personal property whatsoever, not owned by Lessee, whether owned by Railway or by others, arising directly or indirectly out of or on account of the leasing to or use by Lessee of the property hereby leased; whether due or claimed to be due by the joint negligence of Railway, its employees, agents or servants or otherwise. 10. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28, to indemnify Railway for all loss, claims, damage, costs and expenses, including attorneys' fees and environmental cleanup costs arising from Lessee's presence upon or use of the leased premises which causes the premises to become contaminated by toxic or hazardous substances or wastes above levels which exceed the allowable levels as set forth in local, state or federal laws and regulations. Railway shall have the right, at reasonable times during the term of this Lease, upon prior notice to Lessee and accompanied by a representative of Lessee (except in cases of emergency) to enter the leased property, including any building or structure that may at any time be on the leased property, for the • purpose of examining and inspecting the condition of the leased property and to ensure Lessee's compliance with the terms and conditions of this Lease. • 11. To be responsible for and pay Railway the actual cost and expense Railway may incur in paying for, repairing or replacing any engines, cars, rail material, cross -ties, equipment, tools, machinery, freight or other property whatsoever, either owned or in possession of Railway, lost or damaged by any default by Lessee hereunder, or negligence, affirmative act, or omission of Lessee. 12. To perform, at the sole expense of Lessee, all work required in the preparation of the property or premises hereby leased for occupancy by Lessee, in the absence of any special provision herein contained to the contrary; and Lessee does hereby accept the leased property or premises as now being in fit and tenantable condition for all purposes of Lessee. 13. To pay, within thirty (30) days after presentation unto Lessee by Railway of bills for the same, all special assessments, ad valorem taxes, and any other taxes of whatsoever kind or nature levied by the United States of America, State of Florida, any county, municipality or special taxing district organized and existing under the laws of the State of Florida, upon any of the property or premises herein leased. All taxes and special assessments, payable on an annual basis, are to be pro- rated by the parties hereto for the year during which this lease is made, as well as the year in which the same may be terminated. • Page 4 • 14. To pay in the same manner as provided in Paragraph 13 hereof, the amount of any necessary documentary stamp taxes required to be affixed to this lease under the laws of the United States of America, the State of Florida, or both. • 15. To pay, either directly or upon bills presented unto Lessee by Railway within thirty (30) days after presentation of the same, all bills for electricity for lighting or power, gas, water, telephone and telegraph services, or the proportionate part of the same used by Lessee upon or in the leased property or premises. 16. That it will indemnify, save and hold harmless Railway from any loss, claim or damage which Lessee may sustain arising directly or indirectly by reason of either existing or future zoning or other regulations promulgated by any governmental agency which may adversely affect use by Lessee of the lands hereinabove described, and Lessee shall assume all responsibility for procuring or complying with any ordinance, resolution, order, permit, consent or other such regulation, promulgated by any governmental agency whatsoever, for building or otherwise, required for the use of the premises hereinabove described or for the construction of any facilities upon such premises. 17. That it shall not permit others to use the whole or any part of the leased property or premises, except under and in compliance with the terms and conditions of this lease, and Lessee shall hold Railway harmless as to any such use. 18. That none of the provisions of Paragraph "A" hereof shall be construed as any waiver • by Railway of any landlord's lien or liens of Railway upon any personal property, buildings or structures of Lessee, for any rental due or to become due hereunder unto Railway, and Lessee shall not remove any such structures, buildings or personal property from the hereinabove described • premises, unless and until all rentals and any other sum of money herein specified to be paid the Railway shall have been fully paid unto Railway. 19. That Lessee shall remove any buildings, structures, works or personal property upon the leased property or premises, including any such items placed upon the leased property or premises subsequent to the date of this lease on or before any termination date of this lease, upon request from the Railway to do so, and in default thereof, such property shall become the property of the Railway. PROVIDED, HOWEVER, Railway may, at its option cause removal of the same from the hereby leased property or premises and/or storage thereof, and storage of any of Lessee's property and property of others, placed by or with Lessee's permission or sufferance on the hereby leased property or premises. The reasonable cost or expense of removal and/or storage of any buildings, structures, works or personal property shall be paid by Lessee unto Railway forthwith upon demand for same. 20. That is waives and relinquishes any legal rights and monetary claims which it might have for full compensation, or damages of any sort, including but not limited to special damages, severance damages, removal costs or loss of business profits resulting from its loss of occupancy of the leased property specified in this agreement, or adjacent properties owned or leased by it, when any or all of such properties are taken by eminent domain proceedings or sold under the threat thereof. That this waiver and relinquishment applies whether (1) this lease is in existence on the date of taking or sale; or (2) has been terminated prior thereto. • Page 5 • • 21. That it is expressly agreed by and between the parties hereto that any obligations of the Lessee under the terms of this agreement which are not paid within thirty (30) days of presentation of bills for same by Railway shall bear interest at the rate of twelve per cent (12 %) per annum • compounded annually from the date of presentation of the bill until same shall be paid. It is further expressly agreed that in the event Railway shall institute and prevail in any action or suit for the enforcement of any of its rights under the provisions of this agreement, Lessee will pay to Railway a reasonable attorney's fee on account thereof. Also in the event of litigation, the parties agree that the laws of the State of Florida will apply. In an action to enforce any of the provisions of this agreement, the parties hereto specifically agree that venue shall lie in St. Johns County, Florida. 22. That its facilities and operations on the herein leased area shall conform to all applicable regulations and ordinances of any governmental agency having jurisdiction thereof. 23. That, at its expense, it will install and maintain facilities to prevent accumulation of surface water, industrial liquids, solid waste matter and sanitary waste resulting from Lessee's operations within the herein leased area. Such facilities to be approved by the Railway and any other governmental agency having jurisdiction thereof. 24. Should any portion of the property described in this lease be used for the loading, unloading or storage of hazardous materials, the Lessee shall (1) be solely responsible for ascertaining that local, state and federal laws, ordinances and regulations do not prohibit the loading, unloading or storage of hazardous materials on the leased property and (2) be solely responsible as between the Railway and the Lessee, for complying with all of the foregoing laws, ordinances and • regulations which affect or regulate the loading, unloading or storage operations of hazardous materials on this leased property. • 25. It is understood between the parties hereto that Railway reserves unto itself, its successors, permittees, licensees, or other persons, the right to construct and maintain other facilities, including but not limited to, pipelines and/or communication cables, over and across the Railway's affected herein leased property, and further, that Lessee shall take no measures to interfere with the construction or maintenance of said facilities and shall at all times allow ingress and egress to the herein leased property by said successors, permittees, licensees or other persons. 26. Lessee will do no grading on said leased ground space that will in any manner interfere with the Railway's roadbed or other facilities. 27. Lessee is specifically notified that its personnel may be working in an area containing buried active fiber -optic transmission cables as well as other cables and other facilities. Great care will be taken by the Lessee to ensure that no damage is done to those cables and facilities. However, if a cable or other facility is damaged or cut, Lessee agrees to indemnify Railway for any monetary damages which may result. • Page 6 • 28. Lessee acknowledges the fact that the herein leased property may contain fiber optic communication systems, Railway signal and train control cables and other utilities. Prior to any digging or subgrade work on the leased premises, you must call SUNSHINE for utility locations at • 1- 800 - 432 -4770 and the Railway Signal Department at 904 - 826 -2428 for signal and train control cable locations. Proper notification is required for cable locations and field inspections to protect against damages. 29. Lessee agrees that no plants, shrubbery, trees, or other vegetation that would obstruct the view of motor vehicles or train crews using a crossing at grade, or interfere with the operation of trains, will be placed on the above described property; in addition to the above restriction, no plants, shrubbery, trees or other vegetation having a height of more than two (2) feet will be placed within two hundred and fifty (250) feet of any at grade street crossing, and if such vegetation exceeds two (2) feet in height, the Railway may trim such vegetation to a two (2) foot height at Lessee's expense; that said plants, shrubbery, trees or other vegetation shall be trimmed by the Lessee so as to maintain this distance from the centerline of the nearest track of twenty -five (25) feet and if such vegetation is closer than twenty -five (25) feet from the centerline of the nearest track, the Railway may trim or remove such vegetation so that no vegetation is within twenty -five (25) feet of the centerline of the nearest track at Lessee's expense. However, this restriction in no way limits the indemnification provisions of this Lease as set forth in Paragraphs 8 and 9 hereof. Also, no plants, shrubbery, trees or other vegetation of a hazardous nature that might produce injury to any person coming in contact with said plants, shrubbery, trees or other vegetation will be placed upon said property of Railway by the Lessee. The placement of any wells by the Lessee on the property of the Railway is strictly prohibited. 30. Lessee recognizes ownership of said property by the Railway and Lessee has no • intention of setting up any claim of ownership to the herein leased properties. 31. Lessee shall, at its sole cost and expense, install, maintain, and/or replace such barricades and bumping blocks, as required by the Railway, to prevent automobiles from being parked or rolling beyond the space hereby leased. In the event Lessee does not maintain, and/or replace said barricades or bumping blocks to prevent automobiles from being parked or rolling beyond the space hereby leased within thirty (30) days after notification by Railway, then, in that event, this lease agreement shall be canceled and Lessee shall immediately vacate the property. 32. This agreement cancels and supersedes that certain Lease Agreement by and between the parties hereto, dated July 11, 1991, covering the hereinabove described property. • Page 7 • • IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executed under the seal. Signed, sealed and delivered FLORIDA EAST COAST RAILWAY in the presence of: COMPANY, a Florida Corporation By: (SEAL) Witness as to Railway R. F. acSwain (Print Name) T h e- re 5 a w. R ci x n, 0 (Title) V i c, G Pre s j J e n f T Attest: C � Witness as to Railway Assistant Secretayr�y -� (Print Name) (Print Name) Date of Execution: VILLAGE OF TEQUESTA a Municipal Corporation of the State of Florida ,,By: x?" _(SEAL) l (vit'ness as to Lessee LA-&LT CLU V- Mayor " -nt Name) J M 6NGANi 4x, 4" �Print Name) 1 ` ' ` 1 M 1 C K I ' T L� fittest: ' 1 0 =7f�� Witness as to Lessee City Manager r- %/(Print Name) &Q E P'? , � y h� / � , knt Name) vbate of Execution: d Approved as to Form: • Page 8 • iri w -- ' I I t� I I J� INS I AL I- SIGNAL H ELOCATE EXIST S /GNA CL in - - -- -- C- - -- -T- `- - — _ -- - — �,j1 CATE L' PAIVtL — __ _ TO JAC KSONVILLE ' INSTAL SIGN `� � L i - r - - ---= -� REL OCA TE SIGNAL BOXES ENCASE 22' OF FIBEI O PTIC CABLE - I 0 1 I a) Lw I W I + 3 I N a o � � � � Q - -- - - goo u i I Il reAv INS; � lo I Iwi� l Io LL � I i - - -- - - - -r � – -- - MAIN T - — _INS NI: r 10 uAlml — r �I0 - - -- R ELUCA It; f m5TINi; :•iC. ^.r t. t9 E'NCA.�,tl, 2-1 Of I - Itifte OPTIC CAHLE •� I� I Wv IiY a7� �Y 11��[,IITrD'1 I r I N N V I M I U N b FLORIDA EAST COAST RAILWAY C OFFICE OF INDUSTHIAL UEVELOPMET O (JcE)C AND HEAL ESTATE C) U I ST. 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