HomeMy WebLinkAboutDocumentation_Regular_Tab 11E_06/10/1999xi ~
RESOLUTION NO. 41-98/99
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
who moved its adoption. The motion was seconded
by Councilmember and upon being put to a vote, the
vote was as follows:
FOR ADOPTION AGAINST ADOPTION
The Mayor thereupon declared the Resolution duly passed and
adopted this 10th day of June, A.D., 1999.
MAYOR OF TEQUESTA
ATTEST:
Ron T. Mackail
Joann Manganiello
Village Clerk
WP80\MyFiles\Resolutions\41-98-99
FLORIDA EAST COAST RAILWAY COMPANY
f f C ONE MALAGA STREET, P. O. BOX 1048, 8T. AUGUSTINE, FLORIDA 920b6-1046
May 12, 1999
File: 281-1-2
TEQUESTA: Lease of Space for Beautification MP 281 + 4096.2'f
Mr. Thomas G. Bradford,
Village of Tequesta
P.O. Box 3273
Tequesta, FL 33469-0273
Village Manager
Dear Mr. Bradford:
As part of the Railway's ongoing review and revision program, rentals for Railway's property are
periodically amended to reflect changing economic conditions. Additionally, new terms and
conditions are added to reflect the changing needs of the customer and the Railway. Accordingly,
enclosed for your further handling for execution are duplicate originals of renewal agreement, dated
July 1 1, 1999, covering captioned lease of space for a one year term, which cancels and supersedes
previous agreement dated July 11, 1991. Agreement has also been revised to include a new rental
rate as set forth below:
Your base rental will be increased to $175.00 annually, plus Florida Sales and Use
Tax, effective July 11, 1999, and you will thereafter be billed accordingly.
In order to continue the current lease arrangements on this property, kindly handle for execution in
accordance with instructions attached to the agreement, returning the duplicate originals to this office
for completion, after which one fully executed agreement will be returned to you for your file.
Your prompt handling and return is requested.
MOB/bb
Enclosures
Sincerely yours,
V ~~
M. O. Bagley, Directa~
Industrial Development & Real Estate
cc: Ms. Bonnie Seyle
Mr. R. J. Jones
May 16, 1999
VILLAGE OF TEQUESTA
Post Office Box 3273 • 250 Tequesta Drive • Suirc 300
Tcquesta, Florida 33469-0273 (561) 575-6200
Fax: (561) 575-6203
John C. Randolph, Esq.
Jones, Foster, Johnston and Stubbs, P. A.
P.O. Box 3475
West Palm Beach, FL 33402
Re: Proposed New Lease Agreement with Florida East Coast Railway Company
and Village of Tequesta for the Beautification
Dear Skip
Attached hereto, please find a copy of a letter dated May 12, 1999 from FEC and a copy of the
proposed new Lease Agreement containing new terms and conditions. Tequesta requires this
lease in order to beautify the designated areas within a 200' x 200' area of FEC right-of--way.
Please review the same for legal form and sufficiency. This matter needs to be considered by the
Village Council at their meeting scheduled for June 10, 1999. Please let me know your position
relative to legal form and sufficiency of the lease by June 2, 1999.
Should you have any questions in regard to this lease, please contact me.
Sincerely,
~"y-~
Thomas G. Bradford
Village Bradford
TGB/nmh
c: Gary Preston, Director of Public Works and Recreation, w/attachment
Recycled Peper
joys
FOSTER
JOHNSTON
& STUBBS, P.A.
Attorneys and Counselors
John C. Randolph, Esq.
Direct Dial: (561) 650-0458
E-mail: jandolph@jones-foster.com
May 19, 1999
Mr. Thomas G. Bradford
Village Manager
Village of Tequesta
Post Office Box 3273
Tequesta, Florida 33469-0273
Flagler Center Tower, Suite l 100
505 South Flagler Drive
West Palm Beach, Florida 33401
Telephone (561) 659-3000
VIA FAX: 575-6203
Mailing Address
Post Office Box 3475
West Palm Beach, Florida 33402-3475
Facsimile (561) 832-1454
RE: Village of Tequesta
Lease Agreement with Florida East Coast Railway Company for Beautification
Our File No. 13153.1
Dear Tom:
I have reviewed the above referenced lease and approve same as to legal form and sufficiency.
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
John C. Randolph
JCR/ssm
DO NOT REMOVE FROM AGREEMENT
INSTRUCTIONS
Kindly have the appropriate authority sign ALL copies of the agreement on Page 3~,
where indicated by check marks. Execution on behalf of the City/County should be
accomplished by the authorized authority of the City or County. City Manager /County
Administrator should attest the agreement and indicate date of execution.
2. Have two (2) separate persons witness the signatures to the left thereof, AFFIXING
THE CITY/COUNTY SEAL.
3. Please verify the name and address on Page 1, making any necessary corrections,
however, DO NOT alter or add to the provisions of this document. If, for any reason,
you cannot execute same in its present form, kindly return to the undersigned with your
comments in writing.
4. DO NOT INSERT EFFECTIVE DATE OF AGREEMENT ON PAGE 1.
5. Return ALL copies of the agreement to this office together with Resolution adopted by
City/County, authorizing execution and acceptance of agreement. When completed, one
fully executed copy of the agreement will be returned to you for your files upon
completion of execution.
6. Failure to execute the agreement exactly as indicated above will result in rejection by our
Law Department and require resubmission for proper execution.
File: ~~~' ~- ~
THIS LEASE, is effective this 11th day of Ju y A.D. 192, 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 Apri19, 1990, attached hereto and made a part
hereof.
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, bamcades 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
alt 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 maybe 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 oftwenty-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
bamcades 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
r
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed under the seal.
Signed, sealed and delivered
in the presence of:
Witness as to Railway
(Print
Witness as to Railway
(Print Name)
Witness as to Lessee
~rint Name)
FLORIDA EAST COAST RAILWAY
COMPANY, a Florida Corporation
By: (SEAL)
R. F. MacSwain
(Title)
Attest:
Assistant Secretary
(Print Name)
Date of Execution:
VILLAGE OF TEQUESTA
a Municipal Corporation of the
State of Florida
/By:
Mayor
~rint Name)
/ test:
d Witness as to Lessee
(Print Name) Print N;
City Manager
./Date of Execution:_
;,pproved as to Form:
Page 8
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