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R24-121 RESOLUTION NO. R24-121 3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON 4 BEACH, FLORIDA, APPROVING A LEASE AMENDMENT TO THE LEASE 5 BETWEEN THE MOST REVEREND GERALD M. BARBARITO, D.D., J.C.L., AS 6 BISHOP OF THE DIOCESE OF PALM BEACH COUNTY, HIS SUCCESSORS IN 7 OFFICE AND ASSIGNS FOREVER, A CORPORATION SOLE, AND THE CITY OF 8 BOYNTON BEACH EXTENDING THE CURRENT LEASE UNTIL DECEMBER 31, 9 2025; AUTHORIZING THE MAYOR TO EXECUTE THE AMENDMENT; 10 AUTHORIZING THE CITY MANAGER TO EXECUTE A TASK ORDER WITH ONE 11 OF THE CITY'S GENERAL ENGINEERING CONSULTANTS IN AN AMOUNT NO 12 TO EXCEED $100,000 FOR COMPLETION OF THE ENGINEERING AND 13 PERMITTING SERVICES AS CONTEMPLATED IN THE AMENDMENT; 14 PROVIDING AN EFFECTIVE DATE;AND FOR ALL OTHER PURPOSES. 15 16 WHEREAS, the Most Reverend Gerald M. Barbarito, D.D., J.C.L., as Bishop of the Diocese 17 of Palm Beach County, His Successors in Office and Assigns Forever ("Landlord"), and the City of 18 Boynton Beach ("Tenant"), entered into a Lease Agreement on June 26, 1992, for a term beginning 19 on July 1, 1992, and terminating on June 30, 2019, for the purpose of creating a passive park for 20 use by the public, approved by Resolution No. R92-83 on May 19, 1992; and 21 WHEREAS, since July 1, 2019, the Lease Agreement has continued month to month until 22 the date of this Amendment; and 23 WHEREAS, Landlord and Tenant wish to amend the Lease Agreement to extend its term 24 until December 31, 2025, to allow Tenant time to restore the premises and to surrender it to 25 Landlord in substantially similar condition and repair as received, excepting ordinary wear and 26 tear; and 27 WHEREAS, the City Commission, upon recommendation of staff, has deemed it to be in 28 the best interests of the citizens and residents of the City to approve a Lease Amendment to the 29 Lease between the Most Reverend Gerald M. Barbarito, D.D., J.C.L., as Bishop of the Diocese of 30 Palm Beach County, His Successors in Office and Assigns Forever, a Corporation Sole, and the City 31 of Boynton Beach extending the current Lease until December 31, 2025. Further, the City 32 Commission desires to approve an expenditure not to exceed $100,000 to complete the 33 engineering and permitting work required by the Lease Amendment. 34 35 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON 36 BEACH, FLORIDA, THAT: 37 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 38 being true and correct and are hereby made a specific part of this Resolution upon adoption. 39 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby 40 approve a Lease Amendment, between the Most Reverend Gerald M. Barbarito, D.D., J.C.L., as 41 Bishop of the Diocese of Palm Beach County, His Successors in Office and Assigns Forever, a 42 Corporation Sole and the City extending the current Lease until December 31, 2025 (the 43 "Amendment"), in form and substance similar to that attached as "Exhibit A". 44 SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby 45 authorizes the Mayor to execute the Amendment and such other related documents as may be 46 necessary to accomplish the purpose of this Resolution. 47 SECTION 4. The City Commission of the City of Boynton Beach, Florida, hereby 48 authorizes the City Manager to execute a Task Order with one of the City's General Engineering 49 Consultants in an amount not to exceed $100,000 for engineering, permitting and such other 50 services as contemplated in the Amendment. 51 SECTION 5. One fully-executed original of the Amendment shall be retained by the City 52 Clerk as a public record of the City. A copy of the fully-executed Amendment shall be provided 53 to Gail Mootz to forward to the Landlord. 54 SECTION 6. This Resolution shall take effect in accordance with law. 55 56 57 58 59 [signatures on following page] 60 61 62 PASSED AND ADOPTED this 18th day of June 2024. 63 CITY OF BOYNTON BEACH, FLORIDA 64 YES NO 65 Mayor—Ty Penserga -A-bs.ena- 66 / 67 Vice Mayor—Aimee Kelley 68 t. 69 Commissioner—Angela Cruz 70 71 Commissioner—Woodrow L. Hay 72 l/ 73 Commissioner—Thomas Turkin 74 75 VOTE -0 76 A ii. a 7 ." 7' I f _ %.I a _�_ 79 Maylee D- esus, MPA, MC Ty Pen 4a 80 City Cler May . 81 ‘30 YN roN y� 82 : O .•• APPROVED AS TO FORM: i . pRPORgT.�0 !, 83 (Corporate Seal) : ' • F'•c<' �i SEAL • , W/4 84 I 2 85 ; �1NCORPORA7ED 920 JaliAG Shawna G. Lamb %� 1 86 i 87 tI��. F�ORIDP _.� City Attorney LEASE AMENDMENT This LEASE AMENDMENT (hereinafter referred to as "Amendment") entered into this / 'day of 3(Avve. , 20.2-1-1 , by and between THE MOST REVERAND GERALD M. BARBARITO, D.D., J.C.L., AS BISHOP OF THE DIOCESE OF PALM BEACH, HIS SUCCESSORS IN OFFICE AND ASSIGNS FOREVER, A CORORATION SOLE, hereinafter referred to as the "Landlord" and the CITY OF BOYNTON BEACH, FLORIDA, a municipal corporation organized and existing under the laws of the State of Florida, hereinafter referred to as "Tenant" (each a"Party" and collectively the "Parties"). WITNESSETH: WHEREAS, Landlord and Tenant entered into a Lease Agreement on June 26, 1992, for a term beginning on July 1, 1992, and terminating on June 30, 2019, for the purpose of creating a passive park for use by the public, a copy of said Lease Agreement is attached hereto as Exhibit "A"; and WHEREAS,since July 1,2019,the Lease Agreement has continued month to month until the date of this Amendment; and WHEREAS, Landlord and Tenant wish to amend the Lease Agreement to extend its term until December 31, 2025, to allow Tenant time to restore the premises and to surrender it to Landlord in substantially similar condition and repair as received, excepting ordinary wear and tear; and WHEREAS, all recitals, terms and conditions of that certain Lease Agreement shall be incorporated herein by reference; and except as modified herein, shall remain in full force and effect. NOW, THEREFORE, in consideration of the covenants herein contained by reference, on the part of Tenant to be kept and performed, the parties hereby agree to amend the Lease Agreement as follows: Section 1. The above recitations are true and correct and incorporated herein. Section 2. The Lease Agreement is hereby extended until midnight on December 31, 2025. The Agreement may be extended for six (6) months upon written consent of both parties and written proof that the Tenant is acting in good faith in applying for permits or performing the planned removal work, if necessary to complete the restoration of the Premises as contemplated herein. The City Manager has the authority to execute any extensions on behalf of Tenant. Section 3. Section 10 of the Lease Agreement is hereby amended by adding a new section 10(f)to state: 1 10 (f). Nothing herein shall be construed or interpreted as a waiver of Tenant's sovereign immunity beyond the limits set forth in section 768.28, Florida Statutes. Section 4. Tenant agrees, consistent with section 17 of the Lease Agreement, to remove at Tenant's sole cost and expense a boardwalk, pilings, restrooms and any other fixtures, improvements or equipment (collectively "personal property") installed by Tenant on the Leased Premises unless: (1) Landlord directs, within thirty (30) days after being advised of the personal property's or any portion of the personal property's scheduled removal, that it wishes to take ownership of the personal property (or any portion thereof). In such event, the personal property (or portion thereof) shall remain and shall become the property of Landlord, and Tenant shall have no further responsibility for the personal property (or portion thereof), or (2) A state or federal regulatory agency(e.g.,the Florida Department of Environmental Protection,the Army Corp of Engineers,etc.)advises the Parties in writing that any portion of the personal property shall not be removed ("Agency Determination"). Tenant shall notify Landlord of any Agency Determination so that Landlord may legally challenge, including any available appeals, the Agency Determination. In the event that Landlord is successful in challenging the Agency Determination,then Tenant shall be liable for Landlord's attorney's fees and/or costs up to $5,000.00. Landlord shall submit invoices detailing the attorney's fee and costs, and Tenant shall pay same within thirty (30) days of submission after review and approval by the City of Boynton Beach's City Attorney. Both parties agree that the Agency Determination, after exhaustion of available appeals if any, shall be final, and the parties agree to be bound by the Agency Determination. Section 5. Landlord agrees to assist Tenant as necessary in applying for any local, state, and federal permits to remove the personal property as required, from the mangroves or other areas on the Premises. Landlord will either jointly apply for the permits with Tenant,provide a blanket authorization letter to enable Tenant to apply for permits on its behalf,or designate a representative to execute each permit as required within ten (10)days after Tenant's request to Landlord. Tenant agrees to pay for all permit applications and shall, at least ten(10)working days prior to submittal to the appropriate agency, provide Landlord with a copy of the relevant permit application. Landlord, through its representative or consultant engineer,shall provide any proposed changes to the application within five(5)days of receipt of the application from Tenant. The Parties agree to work collaboratively and in good faith in finalizing any application(s) to submit to the appropriate agency. Section 6. Section 23 of the Lease Agreement is hereby amended by adding a new subsection (n)to state: • 2 23 (n). The venue for any action to construe,or arising out of,the Lease Agreement or this Amendment shall be exclusively in Palm Beach County, Florida. Section 7. In exchange for strict compliance with the terms of this First Amendment, each Party waives any claims or disputes against the other with respect to any of the matters covered by the Agreement. However, in the event of a material breach of this First Amendment,then the waiver is void. Section 8. Except as modified herein, all recitals, terms and conditions of that certain Lease Agreement shall remain in full force and effect.The Agreement,as amended herein by this Amendment, incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein, and the Parties agree that there are no commitments, agreements, or understandings concerning the subject matter hereof that are not contained in the Agreement as amended in this Amendment. Accordingly, the Parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. SIGNATURES ON FOLLOWING PAGE 3 IN WITNESS WHEREOF, the parties unto this Amendment have set their hands and seals on the day and date first written above. ATTEST: TENANT CITY OF BOYNTON BEACH: BY. III /) ; ✓ BY: ____ 411111P Mayle: Deo esus _- y,, `‘` y Pee-rt. City C er: fe(v ..POR..4) 14 Ma ,,, ,, •_. ,. SEAL •:_ Witnes , ;INCORPORATED; �'ammy L. S .nzione 1920...1• Print/Type Witness Name 1w ••••..•••• `�, FLOR'O '_ re.J Wit ess i-ie.115et la\X' Print/Type Witness Name APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: damc a U%Ie Shawna Lamb City Attorney DATE: 1)-(9 LANDLO'id$ BY:t Orc, 'rald M. Barb. it.�D.D., J.C.L., ishop I n-.s PP /// :9 L 1 1A,�S-e,// Print/Type itness Name F Witness ,14c/�K E e/1726,,; Print/Type Witness Name 4 RESOLUTION NO. R92- a3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE CITY MANAGER AND CITY ATTORNEY TO NEGOTIATE A LEASE AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND THE DIOCESE OF PALM BEACH FOR THE MANGROVE • PROPERTY ADJACENT TO ST. MARKS CHURCH; • AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT FOR THE MANGROVE PROPERTY ONCE THE SAME IS FINALIZED; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon recommendation of staff, deems it to be in the best interest of the citizens and residents of the City to execute a Lease Agreement with the Diocese of Palm Beach for the mangrove property adjacent to St. Mark's Church. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE ITY OF BOYNTON,BEACH, FLORIDA THAT: Section 1. The City Commission of the City of Boynton :each, Florida authorizes and directs the City Manager and City tto•rey to negotiate a Lease Agreement with the Diocese of Palm Beach for the mangrove property adjacent to St. Mark's Church in downtown Boynton Beach. Section 2. Authorizing the Mayor and City Clerk to execute the Lease Agreement for the mangrove property once the same is finalized. Section 2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this /9 day of May, 1992. CITY OF BOYNTONJBEACH, FLORIDA Ma/11/ 164-f,;(-_, or / Vic: or / , // / / Co , soner k ie ATTEST: Co AilidAt414,.-) ekvii.it Commission' City Clerk (fJp,,,, _) (Corporate Seal) Mangrove.Res 5/14/92 r-7 1 1 LEASE THIS LEASE, made and entered into this AFIV day of ,Ky , 1992, by and between J. KITH SYMONS, AS BISHOP OF THE DIOCESE OF PALM BEACH, HIS SUCCESSORS IN OFFICE AND ASSIGNS FOREVER, A CORPORATION SOLE, hereinafter referred to as the "Landlord", and the CITY OF BOYNTON BEACH, FLORIDA, a municipal corporation organized and existing under the laws of Florida, hereinafter referred to as the "Tenant". WITNESSETH: 1. The Landlord does hereby lease and demise unto the said Tenant the following described property, lying and being in Palm Beach County, Florida, to-wit: See Legal Description attached hereto and made a part hereof as Exhibit "A", hereinafter referred to as the "Leased Premises", "Demised Premises" or "Premises". 2. The term of this Lease shall begin July 1, 1992, and shall terminate on June 30, 2019. Tenant may not take possession until such time as Tenant procures the liability insurance hereinafter provided for. 3. Tenant agrees to pay and Landlord agrees to accept a rental Ten and No/100 Dollars ($10.00) per year, payable in advance, commencing on July 1, 1992, and on a like day of each year thereafter, and shall be payable to THE DIOCESE OF PALM BEACH. Tenant shall also pay, with each installment, all applicable tax thereon. The covenant to pay rent shall be an independent covenant. 4. In order to insure the Landlord's opportunity for obtaining an tax exemption, the Tenant agrees to notify the Landlord on or before November 10th (or whatever date, from time to time, is fifty (50) days preceding the date for the determination of a tax exempt use for the following year) of the year if Tenant will be unable to begin activities, on the Leased Premises, which would make the property tax exempt prior to January 1st (or such other date as may be set by law from time to time for determining tax exempt status) of each year. Upon such notification, the Landlord shall then have the option of terminating this Lease. In the event the Lease is so terminated, a pro-rata amount of the rental will be refunded to the Tenant, as of the date of termination. 5. Tenant may not assign this Lease nor sublease any part or all of the Leased Premises without the written consent of the Landlord, which consent may be unreasonably and arbitrarily withheld. 6. Tenant hereby agrees to cooperate with Landlord in Landlord's attempt to obtain a tax exemption on the Leased Premises. Tenant agrees to execute Affidavits as to the status of the tax exempt activities. Tenant further agrees to attend the tax exemption hearing with the Landlord, upon Landlord's request. In the event the activities of the Tenant cause the property to lose its tax exempt status, then Tenant shall pay the entire amount of taxes levied on the Premises and upon Landlord's adjoining property if it too is placed on the tax roll as a result of Tenant's activities or inaction. 7. Tenant hereby agrees and covenants as follows: (a) To use the Leased Premises only for passive park purposes as further described in Paragraph 34 and not to use the Leased Premises for any illegal purpose. (b) To comply with all governmental laws and ordinances regarding the park activities. (c) To not excavate or remove or permit to be excavated or removed any soil or rock from the leased Premises except as shown on plans previously approved by Landlord. (d) To peacefully vacate the property at the termination of the Lease and to leave such improvements intact as Landlord may select. (e) To protect the lands against trespass insofar as Tenant is reasonably able to do so. -2- (f) To not allow any mechanics' liens to be filed against the property and if any are so filed as a result of Tenant's actions, Tenant agrees to promptly discharge the same. 8. Landlord or its agents shall have the right to enter onto the property at any reasonable time to view the premises. Landlord shall, however, exercise this right in such a way as not to unreasonably interfere with the operations of Tenant. 9. Insurance - General (a) All insurance called for under this lease shall be written by companies with not less than an A rating by Alfred M. Best and Company. The insurance company must be qualified to do business in Florida. (b) The insurance coverage must be provided prior to Tenant's taking possession of the Premises or the beginning of the lease term whichever event is earlier. (c) Each policy shall name the Landlord as a named insured under the policy, shall contain a waiver of the right of subrogation against Landlord, shall have a maximum deductible of One Thousand ($1,000.00) , shall provide a minimum of thirty (30) days advance notice be given to Landlord before the policy can be cancelled or amended and shall provide that Landlord be given not less than thirty days notice if the policy will not be renewed. (d) The form of the policies must be satisfactory to Landlord. The Tenant shall comply with all the regulations imposed by the insurance company. (e) Originals of the policies together with proof of payment of the premiums therefor shall be delivered initially ten days prior to the Tenant's occupancy or the commencement of the lease term, whichever is the earlier event. Thereafter these documents shall be delivered to Landlord thirty days prior to the expiration of any existing policy. (f) Any notices to be given under the provision of the Insurance - General section must be given to Landlord by properly addressed certified or registered mail, postage prepaid. (g) If Tenant fails to provide the insurance called for under this lease in a timely fashion, Landlord may, at -3- Landlord's option, obtain the required insurance and any sums expended in this respect shall be immediately due and payable as additional rent and shall bear interest at the highest rate permissible under the laws of Florida. (h) Failure to timely deliver the insurance required hereunder shall be deemed to be an event of default. (i) All policies shall be written as primary, and not contributing with or in excess of the coverage which Landlord as named insureds, their agents, servants and employees may carry. (j) Landlord shall not be responsible or liable to Tenant for any loss or damage caused by the acts or omissions of any persons occupying any space adjacent to or adjoining the Premises. (k) Landlord shall not be required to give notice of accidents or claims. (1) Landlord shall not be liable for any premiums due for insurance. 10. (a) As used herein and in Section 9 and Section 11, "Claims" means any claims, suits, proceedings, actions, causes of action, responsibility, liability, demands, judgments, and executions. (b) Tenant hereby indemnifies and agrees to save harmless Landlord, and any Mortgagee, from and against all Claims, which either (i) arise from or are in connection with the possession, use, occupation, management, repair, maintenance or control of the Premises or any portion thereof; (ii) arise from or are in connection with any act or commission of Tenant or Tenant's Agents; (iii) result from any default, breach, violation or non-performance of this Lease or any provision of this Lease by Tenant; or (iv) result in injury to person or property or loss of life sustained on the Demised Premises. (c) Tenant shall defend any Claims against Landlord, any Mortgagee with respect to the foregoing or in which they may be impleaded. Tenant shall pay, satisfy and discharge any -4- judgments, orders and decrees which may be recovered against Landlord, or any Mortgagee, in connection with the foregoing. (d) TENANT WAIVES ALL RIGHTS TO RECOVER FROM LANDLORD FOR ANY DAMAGES CAUSED BY NEGLIGENCE OF LANDLORD, ITS AGENTS OR EMPLOYEES. (e) The Tenant shall provide a contractual liability endorsement to Tenant's liability insurance. 11. (a) Tenant shall provide and maintain a comprehensive, all-risk, policy of liability insurance with respect to the Premises. The liability insurance policy shall protect Landlord, Tenant and any designee of Landlord against any liability which arises from any occurrence on or about the Premises or any appurtenance of the Premises, the sidewalks and alleyways adjacent thereto or which arises from any of the Claims indicated in Section 10 against which Tenant is required to indemnify Landlord. (b) The coverage limits of the policy shall be at least $3,000,000.00 with respect to any one person, at least $3,000,000.00 with respect to any one accident, and at least $100,000.00 with respect to property damage. (c) If it becomes customary for a significant number of tenants in the area to be required to provide liability insurance policies to their landlords with coverage limits higher than the foregoing limits, within thirty days after Landlord's request therefor Tenant shall provide Landlord with an insurance policy whose limits are not less than the then customary limits. The foregoing requirement shall be applicable only once during each five years during the Term. 12. In the event that the entire Premises shall be taken under any condemnation or eminent domain proceedings or by private purchase under threat of condemnation during the term hereof, or in the event any portion of the Property shall be taken in any such proceedings and the remaining portion shall not be suitable or adequate for the uses and purposes for which the Property is being utilized by Tenant, then, and in any such -5- event, this lease shall terminate on the date of such taking, and any rental payment paid in advance shall be apportioned and promptly refunded to Tenant. If a portion of the Property shall be taken under any condemnation or eminent domain proceedings or by private purchase under threat of condemnation during the term hereof, and the remaining portion of the Property not taken or condemned shall be suitable and adequate for the uses and purposes of Tenant, permitted by this lease, then, in such event, this agreement shall be and remain unaffected by such condemnation or eminent domain proceedings as to such remaining property unaffected by such proceeding, except that, effective as of the date of such taking, the rental shall be diminished by an amount representing the part of the rental applicable to that portion, if any, of the Property which is so condemned or taken. All compensation awarded or paid upon a total or partial taking of the Property, including the value of the leasehold estate created hereby, shall belong to and be the property of Landlord without any participation by Tenant; provided, however, that nothing contained herein shall be construed to preclude Tenant, at Tenant's sole cost and expense, from independently prosecuting any claim directly against the condemning authority for loss of business, and/or depreciation to, damage to, and/or cost of removal of and/or for the value of stock and/or trade fixtures, furniture and other personal property belonging to Tenant; provided, however, that no such claim shall diminish or otherwise adversely affect Landlord's award or other awards of any and all grounds and underlying landlords or mortgagees. 13. Tenant represents warrants and covenants that Tenant has not used nor will it use Hazardous Materials (as defined hereinafter) on, from, or affecting the Leased Premises in any manner which violates federal, state or local laws, ordinances, rules, regulations or policies governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials, and that, to the -6- best of Tenant's knowledge, no prior owner of the Leased Premises or any Tenant, Subtenant, prior Tenant or prior Subtenant have used Hazardous Materials on, from or affecting the Leased Premises in any manner which violates federal, state or local laws, ordinances, rules, regulations, or policies governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials. Tenant shall keep or cause the Leased Premises to be kept free of Hazardous Materials. Without limiting the foregoing, Tenant shall not cause or permit the Leased Premises to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, transfer, produce or process Hazardous Materials, except in compliance with all applicable federal, state and local laws or regulations, nor shall Tenant cause or permit, as a result of any intentional or unintentional act or omission on the part of Tenant or Subtenant, a release of Hazardous materials onto the Leased Premises or onto any other property. Tenant shall comply with and ensure compliance by any Subtenants with all applicable federal, state and local laws, ordinances, rules and regulations, whenever and by whomever triggered, and shall obtain and comply with, and ensure that any Subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Tenant shall (a) conduct and complete all investigations, studies, sampling, and testing, and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials, on, from, or affecting the Leased Premises (i) in ordinances, rules, regulations, and policies, (ii) to the satisfaction of Landlord, and (iii) in accordance with the orders and directives of all federal, state, and local governmental authorities, and (b) defend, indemnify, and hold harmless Landlord, its employees, agents, officers, and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, (i) the presence, disposal, -7- release, or threatened release of any Hazardous Materials which are on, from, or affecting the soil, water, vegetation, buildings, personal property, persons, animals or otherwise; (ii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Materials; (iii) any lawsuit brought or threatened, settlement reached, or government order relating to such Hazardous Materials, and/or (iv) any violation of laws, orders, regulations requirements, or demands of government authorities, or any policies or requirements of Landlord, which are based upon or in any way related to such Hazardous Materials including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs, and litigation expenses. At the end of the term of this Lease, Tenant shall deliver the Lease Premises to Landlord free of any and all Hazardous Materials so that the condition of the Leased Premises shall conform with all applicable federal, state and local laws, ordinances, rules or regulations affecting the Leased Premises. For purposes of this Paragraph 13, "Hazardous Materials" includes, without limit, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, corrosive or related materials defined in the Comprehensive Environmental Response, Compensation, and Liability act of 1980, as amended (42 U.S.0 Sections 9601, et seq.) , the Hazardous Materials Transportation Act, as amended (49 U.S.S. Sections 1801, et seq.) , the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601 et seq.) , and in the regulations adopted and publications promulgated pursuant thereto, or any other Federal, state or local environmental law, ordinance, rule, or regulation. The provisions of this Paragraph 13 shall be in addition to any and all other obligations and liabilities Tenant may have to Landlord at common law, and shall survive the transactions contemplated herein. 14. Tenant covenants and agrees that it will utilize the Leased Premises in a careful, safe and proper manner and will -8- comply, at its expense, with all laws, ordinances, regulations and orders of proper public officers insofar as such matters affect the use and maintenance thereof, provided, however, that the Tenant may (but shall not be obligated to) in its own or Landlord's name, in good faith, contest any such order, regulation, ordinance or law, and during the period of such contest Tenant shall not be deemed to be in default hereunder so long as Landlord shall be held harmless from any loss, expense, or penalty resulting therefrom. 15. At the expiration of this lease, Tenant agrees to deliver up and surrender to Landlord the possession of the leased premises in as good condition and repair as received, excepting ordinary wear and tear. 16. If Tenant shall remain in possession of all or any part of the Leased premises after the expiration of this Lease, the Tenant shall be deemed a Tenant from month to month at a rental fee of double the then reasonable market value monthly rental and subject to all of the terms and provisions hereof, except only as to the term of this Lease. 17. Tenant shall, at all times and upon termination or expiration of this Lease, have the duty to remove all trade fixtures, machinery, equipment, appurtenances and personal property heretofore or hereafter owned and/or installed by Tenant as Landlord may direct. Such property as Landlord shall direct to be left shall become the property of the Landlord. Tenant shall repair any damage done to the Leased Premises caused by such removal. 18. If Landlord is involuntarily made a party defendant to any litigation concerning the lease, or the Demised Premises, or the premises of which the Demised Premises form a part, by reason of any act or omission of Tenant, then Tenant shall save and hold harmless Landlord from all liabilities by reason thereof, including reasonable attorney's fees and all court costs incurred by Landlord in such litigation. In case Landlord engages an attorney to enforce the terms hereof or brings an action against -9- Tenant to enforce any of the terms hereof, or commences a summary proceeding for the forfeiture of this Lease or the possession of said Premises, or either of them, and Landlord shall prevail in whole or in part in such endeavor, Tenant agrees to pay to Landlord all such attorney's fees, expenses, and court costs. The right of such attorney's fees and expenses shall be deemed to have accrued on the commencement of such endeavor, and shall be enforceable whether or not such action is prosecuted to final judgment, and such fees and costs shall be paid forthwith or included in the judgment. 19. Tenant agrees to observe, comply with and obey promptly, at its expense, during the term thereof, all laws, rules, requirements, order, directions, ordinances, and regulations of any and all governmental authorities or agencies and of all municipalities, departments, bureaus, boards and officials governing its use or occupancy of the demised premises. 20. Landlord reserves the right to enter the Premises or any part thereof at reasonable hours to exhibit the Premises to prospective purchasers or others; to display during the last ninety days of the term, without hindrance or molestation by Tenant, °For Rent° signs and similar signs in appropriate places in or on the Premises; to perform any acts related to the safety, protection, preservation, reletting, sale or improvements of the Premises; and, during the last one hundred and twenty (120) days of the term or any part thereof, if during or prior to that time, Tenant vacates the premises, to enter and repair, alter or otherwise prepare the Premises for occupancy. The exercise of any of these reserved rights by Landlord shall never be deemed an eviction or disturbance of Tenant's use and possession of the Premises and shall never render Landlord liable in any manner to Tenant or to any other person. Landlord further reserves, during the last one hundred and twenty (120) days of the term, the right to grant prospective purchasers the right to go upon the Leased Premises to perform such surveys, soil tests, topographical studies and other inspections of the property that said purchaser -10- may desire. Tenant hereby waives all rights to recover for damages done to the Leased Premises, personal property, improvements, fixtures and without limitation, any other damages or liability arising from said actions against Landlord and against the prospective purchasers, their agents or employees. 21. This lease is subordinate to any mortgage or deed of trust affecting the Leased Premises. Tenant shall execute such other and further documents as are requested to implement this subordination and does hereby constitute Landlord its attorney- in-fact to sign said document. So long as Tenant continues to pay the rent in this Lease reserved and no other default exists hereunder, the holder or any mortgage or deed of trust affecting the Leased Premises shall not have the right to interfere with the possession of Tenant in any other manner whatsoever, so that Tenant's rights and possession shall not be disturbed hereunder by any such foreclosure or by any person claiming under or through the Landlord by similar conveyance. 22. (a) The demised premises shall not be used for the storage of any products whatsoever which will produce excessive smoke, odors, or fumes, nor for the storage or dumping of toxic, corrosive or deleterious material, including, but not limited to, gasoline, fuel oil, pesticides or waste material. (b) No area shall be used or maintained as a dumping ground for rubbish or junk. Trash or garbage shall not be kept, except on a temporary basis, in sanitary containers. All equipment for the temporary storage or disposal of such material shall be kept in a clean and sanitary condition. (c) The Premises shall be kept in a neat and well ordered condition at all times. (d) Upon failure of any occupant, tenant, sub-tenant, licensee, assignee or other person or entity to comply with the remedy the default by any means, including by going upon the land and remedying the default and the cost of same shall be a lien upon the interest of the defaulting party. -11- 23. (a) Time is of the essence in every particular of this lease agreement, in respect to the promises, covenants and agreements, terms and conditions of either Landlord or Tenant, and particularly shall time be of the essence where the obligation is that to pay money, rents, required tax payments, and insurance payments. Where under the terms of this Lease it is incumbent upon either side to do or perform an act, such act shall be done and performed promptly, the parties intending that each side will be liable to the other for any damage caused by the unreasonable delay of such party in doing or performing such an act. (b) All references herein to the Landlord and Tenant mean the persons who, from time to time, occupy the positions respectively of the Landlord and Tenant, although this shall not be construed as relieving any person, firm or corporation of any liability incurred by him, her or it, by reason of or in connection with his, her or its having been Landlord or Tenant at one time or another. , The amount of documentary stamps (or similar tax hereafter imposed) to be affixed to this Lease, if any, shall be borne by the Tenant. (c) Nothing contained herein shall be deemed or construed by the parties hereto, nor any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rents, nor any other provisions contained herein, nor any acts of the parties therein, shall be deemed to create any relationship between the parties hereto other than the relationship of Landlord and Tenant. Tenant specifically and definitely acknowledges that all statutory proceedings provided by the laws of the State of Florida regulating the relationship of Landlord and Tenant and remedies accruing to the Landlord upon the default of the Tenant, respecting collection of the rent or repossession of Demised premises, shall, at the option of the Landlord, accrue to the -12- Landlord, who shall have the benefit of any and all such laws and statutes. (d) Landlord and Tenant intend, understand, and agree that the various rights, powers, options, elections, privileges and remedies of the Landlord, set forth in this agreement, or otherwise, shall be construed as cumulative, and no one of them shall be construed as being exclusive of the other or exclusive of any rights or priorities allowed by law, except as herein otherwise provided. (e) Both parties intend, understand and agree that default and grace periods referred to in this Lease agreement shall be deemed to run concurrently and not consecutively. (f) All covenants, promises, conditions and obligations herein contained or implied by law, are covenants running with the land, and shall attach to the land and be binding upon the heirs, executors, administrators, successors, legal representatives and assigns, of each of the parties to this Lease. (g) It is further understood and agreed that no modifications, releases, discharges, or waivers, of any provisions hereof shall be of any force, value and/or effect unless in writing, signed by the Landlord or its duly authorized agent. (h) Whenever herein the singular number is used, the same shall include the plural, and the masculine gender shall include the feminine and neuter genders. (i) The parties hereto agree that this Lease represents the entire agreement between the parties hereto and that there are no collateral agreements or understandings. Tenant agrees that it is not relying on any representations or agreements other than those contained in this lease. (j) This agreement is made in and is to be performed in the State of Florida, and is to be governed by the laws of the State of Florida. -13- (k) This agreement may be executed in as many counterparts as may be necessary, each one of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement. (1) The Parties agree that this transaction is a valid and bona fide lease and shall be treated by both Landlord and Tenant as such in their income taxes. (m) This lease shall not be recorded. 24. All sums due hereunder shall bear interest at the rate of 18% per annum after maturity. 25. Landlord shall attempt to collect and remit to the taxing agency the correct amount of tax due on the rentals paid hereunder, but should there subsequently found to be due additional sums, Tenant will promptly remit said sums together with any interest and penalty thereon. 26. It is expressly and specifically covenanted and agreed that if the Tenant shall fail to pay the rent herein reserved or any obligations herein provided to be paid as additional rent upon the day the same become due and payable and such default shall continue for thirty (30) days, then the entire unpaid balance of the basic rentals and the entire amount of estimated additional rental to the end of the term, based upon existing additional rentals already accrued, shall, at the sole option of the Landlord, immediately become due and payable. 27. Tenant covenants and agrees that in the event of the waiver at any time by the Landlord of any particular covenant or condition of this Lease, said waiver shall extend to the particular condition of this Lease, said waiver shall extend to the particular case only for the particular time and in the particular manner specified, and such waiver shall not be construed or understood as waiving any further or other rights of any character whatsoever. 28. Tenant agrees to pay for all utilities, such as water, gas, and electricity and sewage service charges and any extension of such utilities, if any is required, that may be levied against -14- the Leased Premises during the term hereof, it being the intent that the rental be net to the Landlord. 29. If Tenant shall be declared bankrupt or become insolvent according to law, or if a receiver or other officer shall be appointed to take charge of the whole or a substantial part of its property for the purposes of winding up the affairs of Tenant, and such proceedings be not released within sixty (60) days thereafter, then this Lease shall thereupon, at Landlord's option, terminate, and upon such termination, there shall become due and payable to Landlord as liquidated damages for breach of this lease by Tenant all rent and other obligations herein required to be paid by Tenant accrued to the date of such termination. 30. If default shall at any time be made by Tenant in the payment of rent when due to Landlord as herein provided and if such default continues for a period of ten (10) days after written notice by Landlord to Tenant, or if material default shall be made in any of the other covenants, provisions, and conditions to be kept, observed and performed by Tenant under this Leas, and if within thirty (30) days after written notice of such other material default by Landlord to Tenant, Tenant shall not have corrected said default, then Landlord may, in addition to all other remedies now or hereafter provided by law, at any time thereafter prior to the curing of such default, at Landlord's option, terminate Tenant's right to possession or declare the term of this Lease ended by giving Tenant written notice of such termination. Landlord may also at its option, instead of forfeiting and cancelling this Lease, take possession of said Leased Premises and relet the same for the remainder of the term hereof for the highest rental then reasonably obtainable, the Landlord reserving the right to make such rental concessions and remodeling, at Tenant's expense as it deems necessary, and Tenant shall be liable to Landlord for the amount of rent reserved hereunder for the remainder of the term plus the amount of other charges which Tenant has herein contracted for -15- and agreed to pay, do, and perform, and the reasonable cost of obtaining possession of the Leased Premises and of any repair or alterations necessary to prepare the same for reletting. Further, tenant shall be responsible for an expenses incurred for the reletting of the premises, including, but not limited to, brokerage and legal fees. It is understood that Landlord's remedies under this Lease are cumulative and the exercise of one remedy does not preclude the exercise of the other remedies. In case of termination of this lease under this paragraph, Tenant hereby grants to Landlord the full and free license to enter into and upon the Leased Premises and to expel or remove any and all property therefrom and to dispose of in any manner without being deemed in any manner guilty of trespassing, conversion, eviction, forcible entry or detainer. 31. If default shall be made by Tenant in the performance of or other compliance with any covenant, provision or condition of this Lease, other than the payment of rent, and said default shall have continued for either thirty (30) days after written notice thereof from Landlord to Tenant or the time for performance has arrived. Landlord, in addition to other remedies now or hereafter provided by law, may at its election, perform such proviso, covenant or condition for or on behalf of Tenant, or make good on such default, and Tenant agrees to repay to Landlord immediately any amounts which Landlord may advance pursuant hereto and which shall be deemed additional rent due hereunder. Landlord may enter the Leased premises at reasonable times during business hours to inspect the premises or other property belonging to Landlord provided that such activities shall be done without unreasonable interference to Tenant's business or mode of operations. 32. Additional Conditions: (a) The property is leased subject to all matters of record or hereafter filed of record. -16- (b) The Landlord reserves the right at any time to grant, impose or create new easements and rights of way on the land. (c) The Landlord reserves the right of access for vehicular and pedestrian across the land for himself and others. (d) Tenant shall maintain the property in a neat and clean condition and will take such steps with respect to the upkeep and landscaping as Landlord may reasonably direct. (e) The property is taken "as is" and Tenant has had an opportunity to inspect the physical condition of the property. Landlord makes no representation as to the suitability of the property for Tenant's uses nor does Landlord represent that the proposed use complies with the restrictions and limitations, laws, rules, regulations, ordinance,s public or private affecting and governing the land. (f) No signs are permitted on the property without prior written consent of Landlord. 33. Any notice to Landlord shall be delivered to: Diocese of Palm Beach, 9995 N. Military Trial, Palm Beach Gardens, FL 33418, Attn: Real Estate Department, with a copy to Edward D. Lewis, Alley, Maass, P.O. Box 431, Palm Beach, FL 33480, and to Tenant by mailing to: 100 East Boynton Beach Boulevard, Boynton Beach, FL 33425, Attn: City Manager, with a copy to City Risk Manager at the same address. 34. This lease is entered into for the purpose of permitting the Tenant, and the Premises are so restricted to, creation of a free, public nature preserve which will contain a raised boardwalk area interspersed with kiosks, containing informational statements, an observation tower and canoe trails, parking area and restrooms. In the event that the necessary permits, grants and appropriations are not received and construction commenced within thirty-six (36) months of the date hereof, then this lease shall be terminated. The construction shall be promptly commenced and diligently pursued in good faith to completion. In the event that the Premises are thereafter not -17- so used, then this lease shall terminate. Landlord reserves the right to approve all site plans, construction plans and any future alterations thereof. 35. The park will be constructed in such a manner so as to place no burden of any manner on Landlord's remaining adjoining property. By way of example, and not limiting the generality of the foregoing, drainage and parking facilities shall be constructed in such a manner so as to not interfere with that of Landlord and parking shall be designed in such a manner that will prevent park visitors from parking on Landlord's land. In the event that, in the course of obtaining permits for the park facilities, any deficiencies are discovered in Landlord's drainage of other improvements, then the cost of correcting such deficiencies shall be borne by the Tenant. IN WITNESS WHEREOF, the parties hereto have entered into this agreement the day and year first above written. Signed, sealed and delivered in TENANT: the present of: CITY OF BOYNTON BEACH, FLORIDA I �ce Costello rline Weiner, Mayor ( !hinted Name of Witness) izu � :�' _ arrie Parker ATTEST: (Printed .ame Witness) AID. • d a to F,rm: Cit Cierk q� (Corporate Seal) y Attorney LANDLORD: Lix-tom Anis ,tC ,�nnt. R La er� J. Keith Symon as Bishop (Printed Namb of itne s) of the Diocese of Palm / Beach, his successors in ��'c ,cu. C office and assigns forever, &faYN `Arr ,es a corporation sole (Printed Name of Witness) -18- • LEGAL DESCRIPTION A parcel of land being all of Lots 5, 12, 21 and 22, and also being portions of Lots 6 and 11 of plat of "SUBDIVISION OF THE S.W. 1/4 OF THE S.W. 1/4 OF SEC. 22 AND THE N.W. 1/4 OF THE N.W. 1/4 OF SEC. 27 OF T.45S. R.43E." (for convenience to be hereinafter referred to as "DEWEY SUBDIVISION") as recorded in Plat Book 1, Page 37 of the Public Records of Palm Beach County, Florida being in Section 22, Township 45 South, Range 43 East, City of Boynton Beach, Palm Beach County, Florida being more particularly described as follows: Commencing at the Southwest corner of said Section 22; thence North 89°55'53" East along the South line of said Section 22, a distance of 682.56 feet; thence North O1°32'24" West, a distance of 325.69 feet to the Southwest corner of said Lot 22 and the POINT OF BEGINNING of this description; thence North 01°32'24" West along the West line of said Lot 22, a distance of 315.69 feet to the Northwest Corner of said Lot 22; thence North O1°32'24" West along the Northerly extension of the said West line of Lot 22, a distance of 20.01 feet to the Southwest corner of said Lot 11; thence North 89°59'15" East along the South line of said Lot 11 , same line also being the North line of a strip of land lying between said Lots 11 and 22 as shown on said "DEWEY SUBDIVISION", said strip of land being 20.00 feet in width as shown on survey entitled "Boundary Survey Prepared For & Certified to: ST. MARK'S CATHOLIC CHURCH" by O'Brien, Suiter & O'Brien, Inc., order no. 83-165db, dated May 5, 1983 and last revised November 7, 1984, a distance 117.59 fet to a point of intersection with a chain link fence; thence North 00°20'16" West along said chain link fence, a distance of 288.85 feet to a change of direction in said chain link fence; thence North 03°13'14" East along said chain link fence, a distance of 27.94 feet to a change of direction in said chain link fence; thence North 03°02'01" West along said chain link fence and the Northerly extension thereof, a distance of 160.58 feet; Thence North 89°57'22" West along the Easterly extension of the cen- terline of Northeast 6th Avenue, a distance of 121.71 feet to a point of intersection with the East line of plat of "CIVIC CENTER SUBDIVISION" as recorded in Plat Book 12, Page 68 of the said Public Records; thence North 01°31'52" West along the said East line of "CIVIC CENTER SUBDIVISION", same line also being the West line of said Lot 6 of "DEWEY SUBDIVISION" a distance of 143.99 feet to the Northwest corner of said Lot 6; thence South 89°57'22" East along the North line of said Lots 5 and 6, same line also being the South line of a strip of land lying North of said Lots 5 and 6 as shown on said "DEWEY SUBDIVISION", said strip of land being 20.00 feet in width as shown on said survey by O'Brien, suiter & O'Brien, Inc. , a distance of 677.04 feet to the Northeast corner of said Lot 5; thence South 01°47'02" East along the East lines of said Lots 5 and 12, a distance of 620.79 feet to the Southeast corner of said Lot 12; thence South 01°47'02" East along the Southerly extension of the said East lines of Lots 5 and 12, a distance of 20.01 feet to the Northeast corner of said Lot 21; thence South O1°47'02" East along the East line of said Lot 21, a distance 315.40 feet to the Southeast corner of said Lot 21; thence South 89°57'34" West along the South lines of said Lots 21 and 22, a distance of 681.19 feet to the POINT OF BEGINNING; EXHIBIT A -2- LESS the following described 20.00 foot wide strip of land lying South of said Lots 11 and 12 and North of said Lots 21 and 22 as shown on said "DEWEY SUBDIVISION" and said survey by O'Brien, Suiter & O'Brien, Inc. being more particularly described as follows: BEGINNING at the said Northwest corner of Lot 22; thence North 01°32'24" West along the said Northerly extension of the West line of Lot 22, a distance of 20.01 feet to the said Southwest corner of said Lot 11 ; thence North 89°59'15" East along the said South lines of Lots 11 and 12, a distance of 679.77 feet to the Southeast corner of said Lot 12; thence South O1°47'02" East along the said Southerly extension of Lot 12, a distance of 20.01 feet to the said Northeast corner of Lot 21; thence South 89°59'15" West along the said North lines of Lots 21 and 22, a distance of 679.85 feet to the said Northwest corner of Lot 22 and the POINT OF BEGINNING. Containing 13.26 Net Acres, more or less, (Not including LESS parcel). Subject to existing Easements, Rights-of-Way, Restrictions and Reservations of Record.