R04-175
II
1 RESOLUTION NO. R 04 - \ '16:'
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING THE REAL ESTATE LEASE
5 WITH FLORIDA EAST COAST RAILROAD FOR
6 BEAUTIFICATION, PARKING AND STREET
7 ENCROACHMENT FOR A PORTION OF THE F.E.C.
8 RAILROAD RIGHT-OF-WAY; AND PROVIDING AN
9 EFFECTIVE DATE.
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11 WHEREAS, the City Of Boynton Beach has held a real estate lease for a portion of
12 the F.E.C. Railroad right-of-way lying within the length of corporate limits of the City of
13 Boynton Beach which is more than 25 feet from the centerline of the northbound track; and
14 WHEREAS, the City Of Boynton Beach currently maintains landscaping installed on
15 portions of the right-of-way specifically, West of Federal Highway and North of the C-16
16 Canal (in front of the north "Welcome to Boynton Beach" entrance monument); and
17 WHEREAS, the City Of Boynton Beach also performs contract mowing along most
18 of the remaining property along the length of the railroad tracks; and
19 WHEREAS, City staff has made recommendation to approve the lease which
20 updates the previous agreement, allows for future landscaping, parking, etc., and sets a lease
21 fLmount of$750 per year.
22 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
23 ~HE CITY OF BOYNTON BEACH, FLORIDA, THAT:
24 Section 1. The foregoing "WHEREAS" clauses are true and correct and
25 ~ereby ratified and confirmed by the City Commission
I Section 2. The City Commission of the City of Boynton Beach appoves the real
26
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27 þstate lease with F.E.C. Railroad, a copy of which is attached hereto as Exhibit "A".
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28 I Section 3. That this Resolution will become effective immediately upon passage.
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PASSED AND ADOPTED this ~ day of I
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3 CITY OF BOYNTON BEACH, FLORIDA
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:\CA\RESO\Real Estate\FEC landscaping lease. doc
Rcy.-I']E)
REAL ESTATE LEASE
Florida East Coast Railway, L.L.c.; a limited liability company existing under the laws of the State
of Florida and having an address of One Malaga Street, St. Augustine, Florida 32084 (hereinafter
"Lessor" or "Railway") hereby leases to CITY OF BOYNTON BEACH, a Municipal
Corporation existing under the laws ofthe State of Florida and whose business address is P. O. Box
310, Boynton Beach, Florida 33425-0310, (hereinafter "Lessee"), the following described property:
Leased Premises:
All that portion of Railway' s right of way lying within the corporate limits of the City
of Boynton Beach, Florida, which is more than 25 feet from the centerline of the
northbound main track, as shown in yellow on Drawing Nos. F64a, F64b and F64c,
excepting those parcels leased to others shown in red on said drawings, attached
hereto and made a part hereof.
6737
County: Palm Beach Contract Type:--±L File: 312-4-28
1. Term
The term of this lease shall date from October 16. 2003 and until October 15. 2004
provided that Lessee shall have the option to extend the lease after the expiration of the term
specified in this lease, or any renewals of such terms, by furnishing Lessor advance written
notice of its intent, subject to same terms and conditions as herein contained in this lease.
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 ofthe length of
time that lessee has occupied the leased Premises, or the construction by Lessee of any
buildings, structures, works, paving, barricades or personal property placed on the leased
premIses.
2. Rent
(1) Annual Rent
During the term of this lease, the Lessee shall pay to the Lessor an annual rental in
advance on or before the 1st day of each year in the amount of$750.00, plus Florida Sales and Use
Tax. Annual rental shall be paid to FEC's office at One Malaga Street, St. Augustine, Florida 32084
or as otherwise indicated on invoices.
(2) Additional Charges
If Lessee's presence or activities on the Lease Premises causes Lessor to incur costs for cleaning,
trash removal, inspections, or like expenses, Lessee agrees to pay such cost to Lessor on demand, the
amount of such costs incurred by Lessor. Notwithstanding the foregoing, Lessee will pay on demand
the greater of the actual inspection costs or $350.00 for any inspection conducted by Lessor or its
agents on the Leased Premises the results of which show, in Lessor's sole determination, a violation
of this Lease of any federal, state or municipal law or regulation. Lessee shall also pay on demand
the greater of the actual inspection costs or $350.00 for any follow-up inspections related to the
violation.
(3) Late Charge
If any annual Rent or other payment due under this Lease is not received by Lessor
within ten (10) days of the due date of such payment, Lessee shall pay, in addition to such payment a
late charge equal to the greater of5% of the payment which is past due or Two Hundred Fifty and
NoI100 Dollars ($250.00). If any payment due from Lessee shall remain overdue for more than ten
(10) days, interest shall accrue daily on the past due amount from the date such amount was due until
paid or judgment is entered at a rate equivalent to the lesser of eighteen (18%) percent per annum or
the highest rate permitted by law. Interest on the past due amount shall be in addition to and not in
lieu of the five (5%) percent late charge or any other remedy available to Lessor.
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3. Utility Charges. Taxes. Document Stamps
(a) Utility Charges
All charges on the premises for all utilities, including but not limited to water,
electricity, gas, heat and sewers and for taxes on Lessee's improvements shall be paid by the Lessee
within thirty (30) days after date of invoice.
(b) Ad Valorem Taxes
Lessee agrees to pay, within thirty (30) days after presentation unto Lessee by
Railway, bills for 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 ofthe State of Florida, upon any ofthe property
herein leased on a pro-rated basis. 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.
(c) Document Stamps
Lessee shall pay 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.
(d) Sales and Use Tax. Personal Property Tax
Lessee will pay the Florida Sales and Use Taxes levied under Chapter 212.02(6)F.S.,
as amended, or other applicable statutes, and shall pay all personal property taxes that may be levied
or assessed against the personal property of the Lessee.
4. As Is. Maintenance
The Lessor MAKES NO WARRANTY, REPRESENTATION OR UNDERTAKING, EXPRESSED
or implied, to the condition of the Leased Premises for the proposed use and the Lessee, at its sole
cost and expense, hereby agrees to put said premises in such condition for its proposed use and to
maintain them in their entirety. The property is leased as it currently exists in an AS IS condition
and the Lessee, who has inspected the premises prior to entering into this Lease Agreement, accepts
the premises as is and shall henceforth be responsible for any and all repairs and maintenance to the
Land, Buildings, facilities and improvements located thereon. Lessee shall perform all work
required for the preparation of the Leased Premises for occupancy by Lessee, in the absence of any
special provision herein contained to the contrary; and Lessee does hereby accept the Leased
Premises as now being in fit and Leasable condition for all purposes of Lessee.
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Lessee will keep the leased property or premises free and clear of any and all trash, brush and debris
of any kind, so as to prevent the trash, brush and debris from becoming dangerous, inflammable or
objectionable. Railway shall have no duty to inspect or maintain any the Leased Premises during the
term of this lease.
Lessee shall have no claim of any kind or description for damages to goods, wares or merchandise on
the Leased Premises from any cause whatsoever, INCLUDING FIRE, STORM, CASUALTY OR
ACT OF GOD, NEGLIGENCE OF LESSOR UNLESS CAUSED BY THE WILLFUL OR
INTENTIONAL ACTS OF LESSOR.
5. Lessee's Compliance With Law
(3) Zoning and Use Regulation
Lessee will release 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. 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 leased
property hereinabove described or for the construction of any facilities upon such leased property,
and shall indemnify and hold harmless Railway from any loss, claim or damage suffered by Railway
for Lessee's failure to properly and completely perform this responsibility,
(b) Other Regulation
The Lessee shall comply with all federal, state and municipal regulations as to health,
safety, zoning, police, nuisance, fire, water, liquid, solid waste and hazardous waste, highways
sidewalks and other matters, and with the regulations of all persons or corporations supplying water,
gas, heat, electricity or steam on the premises, and shall indemnify the Lessor against all fines,
penalties, expense, damages and costs for violation thereof. Lessee is solely responsible for
obtaining any and all federal, state and local licenses, permits, or other authority for its use of the
premises and shall indemnify and hold harmless Lessor against all fines, penalties, expenses, damage
and costs for violation of or failure to comply with any federal, state or local laws or regulations.
6. Hazardous Materials
Lessee will prevent the presence, use, generation, release, discharge, storage, disposal,
or transportation of any Hazardous Materials (as hereinafter defined) on, under, in, above, to, or from
the Leased Premises except that Hazardous Materials may be used in the Leased Premises as
necessary for the customary maintenance of the Leased Premises provided that same are used, stored
and disposed of in strict compliance with applicable laws. For purposes of this provision, the term
"Hazardous Materials" will mean and refer to any wastes, materials, or other substances of any kind
or character that are or become regulated as hazardous or toxic waste or substances, or which require
special handling or treatment, under any federal, state or local laws.
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If Lessee's activities at the Leased Premises or Lessee's use of the Leased Premises
(a) results in a release of Hazardous Materials that is not in compliance with Applicable Laws or
permits issued thereunder; (b) gives rise to any claim or requires a response under common law or
Applicable Laws or pernIits issued thereunder; (c) causes a significant public health effect; or (d)
creates a nuisance, then Lessee shall, at its sole cost and expense: (i) immediately provide verbal
notice thereof to Lessor as well as notice to Lessor in the manner required by this Lease, which
notice shall identify the Hazardous Materials involved and the emergency procedures taken or to be
taken; and (i) promptly take all action in response to such situation required by Applicable Laws,
provided that Lessee shall first obtain Lessor's approval of the non-emergency remediation plan to be
undertaken.
7. Inspection by Lessor
Lessor shall have the right, at reasonable times and upon reasonable prior notice to
Lessee, to enter the Leased Premises, the Land or the Buildings for the purpose of examining and
inspecting the condition of the Leased Premises, Land or Buildings and to evaluate Lessee's
compliance with the terms and conditions of this Lease.
8. ~
Lessee shall not place any signs on the Leased Premises, Land or Buildings except
with the prior written consent ofthe Lessor, including consent as to location and design, which may
be withheld in Lessor's sole discretion. Any and all such approved signs shall be installed and shall
be maintained by Lessee, at its sole cost and expense and shall be in compliance with all Applicable
Laws. Lessee shall be responsible to Lessor for the installation, use, or maintenance of said signs
and any damage caused thereby. Lessee agrees to remove said sign prior to termination of the Lease
and upon such removal to repair all damage incident to such removal.
9. INDEMNIFICATION OF THE PARTIES
A. Indemnification
To the extent allowed by law and subject to the limitation of Florida Statutes 768.28,
Lessee hereby agrees to indemnify, defend and hold harmless Lessor from and against any and all
liability for any loss, bodily injury or property damage, including, without limitation, damage to the
Leased Premises or to Lessee's property, consequential damage, all costs, expenses, court costs and
reasonable attorneys' fees, imposed on Lessor by any person whomsoever that occurs as (i) ON THE
LEASED PREMISES OR (ii) ANYWHERE, INCLUDING BUT NOT LIMITED TO THE LAND,
BUILDINGS, ACCESS AREAS, AS A RESULT OF THE ACTS, OMISSION OR NEGLIGENCE
OF LESSEE, ITS EMPLOYEES, AGENTS OR CONTRACTORS OR AS A RESULT OF OR
ARISING FROM ANY FAILURE OF LESSEE TO COMPLY WITH THE TERMS AND
CONDITIONS OF THIS LEASE REGARDLESS OF THE CAUSE AND REGARDLESS OF
WHETHER ATTRIBUTABLE TO THE FAULT, FAILURE ORNEGUGENCE OF LESSOR. The
commercial liability insurance that Lessee is required to carry pursuant to Section 9.B 1 (a) of this
Lease shall include coverage of the foregoing contractual indemnity. Lessor hereby indemnifies
Lessee from, and agrees to hold Lessee harmless against, any and all liability for any loss, injury or
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damage, including, without limitation, all costs, expenses, court costs and reasonable attorneys' fees,
imposed on Lessee by any person whomsoever, that occurs on the Leased Premises that is caused by
or results from the willful or intentional misconduct of Lessor or its employees or agents. The
provisions of this paragraph shall survive the expiration or any termination of this Lease.
B. Lessee's Insurance
Lessee will throughout the Term (and any other period when Lessee is in possession
of the Leased Premises) carry and maintain, at its sole cost and expense, the following types of
insurance, which shall provide coverage on an occurrence basis, with respect to the Leased Premises,
in the amounts specified with deductible amounts reasonably satisfactory to Lessor:
9.Bl(a) Commercial General Liability Insurance. Commercial general liability ("CGL")
insurance covering claims arising from personal injury, death and property damage with minimum
limits of $1 ,000,000.00 per occurrence and $2,000,000.00 general aggregate and insuring against
legal liability of the insured with respect to the Leased Premises or arising out of the maintenance,
use or occupancy thereof. The CGL policy shall include contractual liability coverage of all such
liabilities arising pursuant to the Lease. Notwithstanding the foregoing, as long as Lessee maintains
self-insurance up to the statutory limit under Florida Statute 768.28, Lessee's obligation as to the
amount ofCGL insurance required under this subparagraph 9.Bl(a) shall be deemed satisfied.
9.B1(b) Comprehensive Automobile Liability Insurance. Comprehensive automobile liability
insurance with a limit of not less than $1,000,000.00 per occurrence for bodily injury, $500,000.00
per person and 5100,000.00 property damage or a combined single limit of $1,000,000 for both
owned and non-owned vehicles.
9.Bl(c) Excess Liability Insurance. Lessee shall also carry and maintain umbrella liability
insurance with a limit of not less than $5,000,000.00 per occurrence.
9.B1(d) Property Insurance. Extended or broad form coverage property insurance including
plate glass coverage on a replacement cost basis, with coverage equal to not less than ninety percent
(90%) of the full replacement value of all personal property, decorations, trade fixtures, furnishings,
equipment, alterations, leasehold improvements and betterments made by Lessee, and all other
contents located or placed in the premises. In the event any casualty occurs, Lessee agrees to pay the
difference between the insurance coverage required to be maintained by this subparagraph 9.B 1 (b)
and 9.Bl(d) and an insurance policy offering coverage of one hundred percent (100%) ofthe full
replacement value of the property described in this subparagraph.
9.B 1 (e) Workers' Compensation and Employees' Liability Insurance. Workers'
Compensation Insurance covering all employees of Lessee, as required by the laws of the State of
Florida and Employers' Liability coverage subject to a limit of no less than $100,000 each employee,
$100,000 each accident, and $1,000,000 policy limit.
9.B.2 Policy Form. All policies referred to above, excluding self-insurance allowed under
9B 1 (a), shall: (i) be taken out with insurers licensed to do business in Florida having an A.M Best's
rating of A-, Class IX, or otherwise approved in advance by Lessor; (ii) name Lessor and Lessor's
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property manager as additional insureds; (iii) be non-contributing with, and shall apply only as
primary and not as excess to any other insurance available to the Lessor or any mortgagee of Lessor;
and (iv) contain an obligation ofthe insurers to notify the Lessor by certified mail not less than thirty
(30) days prior to any material change, cancellation, or termination of any such policy. Certificates
of insurance on the Lessor's standard form or, if required by a mortgagee, copies of such insurance
policies certified by an authorized officer of Lessee's insurer as being complete and current, shall be
delivered to the Lessor promptly upon request. If (a) the Lessee fails to take out or to keep in force
any insurance referred to in this Section 9.B.2, or should any such insurance not be approved by
either the Lessor or any mortgagee, and (b) the Lessee does not commence and continue to diligently
cure such default within forty-eight (48) hours after written notice by the Lessor to Lessee specifYing
the nature of such default, then the Lessor has the right, without assuming any obligation in
connection therewith, to procure such insurance at the sole cost of the Lessee, and all outlays by the
Lessor shall be paid by the Lessee to the Lessor without prejudice to any other rights or remedies of
the Lessor under this Lease. The Lessee shall not keep or use in the Premises any article that may be
prohibited by any fire or casualty insurance policy in force from time to time covering the Premises
or the Building.
C. Claims Handling
If a claim or action is made or brought against either party and for which the other
party may be responsible hereunder in whole or in part, such other party shall be notified and
permitted to participate in the handling or defense of such matter.
10. Purpose of Lease
The premises shall be used only for the purpose of Beautification, Parking and
Street Encroachment.
11. No Interference with Railway Operations. Reservation of Rights
The Lessee's use and/or maintenance ofthe Leased Premises shall not in any way, or
at any time, interfere with or obstruct the use of the Leased Premises or ofthe remaining land ofthe
Lessor by the Lessor, its agents, employees, patrons or assigns. The Lessee will not discharge
surface water upon the remaining property and railroad tracks of the Lessor and Lessee hereby
expressly releases the Lessor from liability for any surface water flowing naturally from the
remaining property herein leased. Lessee further agrees not to alter the leased premises so as to
cause water to drain or flow onto Lessor's property nor so as to cause an undermining of the adjacent
property owned by Lessor.
Lessee shall not have or assert any claim or demand whatsoever for compensation or
damages to the Leased Premises or to any improvements now or hereafter erected or property located
thereon which may be caused by the operation, maintenance, repair, relocation, or removal of
Lessor's railroad or which may be caused by vibration resulting from the operation of said railroad
and Lessee releases Lessor from any liability for any such damage.
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No right of way, expressed or implied, over remaining property of Lessor for the
benefit of the lease premises is granted by this lease agreement other than as set forth above in the
definition of the Leased Premises.
It is understood between the parties hereto that Railway reserves unto itself, its
successors, permittees, licenses, 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 Leased
Premises, 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 Leased Premises
by said successors, permittees, licensees or other persons provided that such shall not unreasonably
interfere with Lessee's use ofthe Leased Premises.
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 sub grade 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.
12. Termination
Either party may, in its discretion, for any reason whatsoever, terminate this lease at any time
by the giving of 30 days notice to the other party as hereinafter provided.
13. Condition of Premises on Termination
The Lessee shall not mutilate, damage, misuse, or alter, the Leased Premises, but shall
keep the same in good condition and repair, and upon the termination hereof deliver them up, in as
good condition as they now are in, or may be put in by the Lessor, ordinary wear and tear, and
damages by the elements without concurring fault on the part of the Lessee, excepted: any and all
repairs, alterations or improvements made on the premises by the Lessor at Lessee's request shall be
at Lessee's expense unless otherwise expressly agreed in writing.
Upon the termination or expiration of the Lease, Lessee shall surrender the Leased
Premises to Lessor, broom clean and in the same condition as received except for ordinary wear and
tear which Lessee was not otherwise obligated to remedy under any provision of this Lease. Lessee
shall remove all equipment, materials, works, and personal property ("Lessee's Property") prior to
termination or expiration of this Lease. Lessee shall repair, at Lessee's expense, any damage to the
Premises or Building caused by the removal of any of Lessee's personal property, including but not
limited to furniture, machinery and equipment. In no event, however, shall Lessee remove any of the
following materials or equipment without Lessor's prior written consent: any power wiring or power
panels; lighting or lighting fixtures; millwork and cabinetry; wall coverings; drapes, blinds or other
window coverings; carpets or other floor coverings; heaters, air conditioners, or any other heating or
air conditioning equipment; fencing or security gates; plumbing fixtures, water fountains; or other
similar building operating equipment and decorations. If Lessee fails to remove Lessee's Property, at
Lessor's option such Lessee's Property will become the property of Lessor or at Lessor's option, may
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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 equipment, materials, works or personal property shall be paid by Lessee to
Lessor forthwith upon demand for same.
14. Lessee Improvements
Lessee agrees not to erect or cause to be erected any building or other structure, or any
material addition to existing buildings or structures on the leased premises or any other
improvements without first obtaining the approval in writing by Railway of the location, material
and construction of the same, such approval by Railway not to be unreasonably withheld.
Lessee will not make or allow to be made any alterations in or to the Leased Premises
without first obtaining the written consent of Lessor, which consent may be granted or withheld in
Lessor's sole discretion. Lessor may require Lessee to proyide demolition and/or lien and
completion bonds in form and amount satisfactory to Lessor. All Lessee alterations will be
accomplished in a good and workmanlike manner at Lessee's sole expense, in conformity will all
Applicable Laws by a licensed and bonded contractor approved in advance by Lessor, such approval
of contractor not to be unreasonably withheld or delayed. All contractor's performing alterations in
the Leased Premises shall carry workers' compensation insurance, commercial general liability
insurance, automobile insurance and excess liability insurance in amounts reasonably acceptable to
Lessor and shall deliver a certificate of insurance evidencing such coverages to Lessor prior to
commencing work in the Leased Premises. Upon completion of any such work, Lessee shall provide
Lessor with "as built" plans, copies of all construction contracts, and proof of payment for all labor
and materials. Any Lessee alterations to the Leased Premises made by or installed by either party
hereto will remain upon and be surrendered with the Leased Premises and become the property of
Lessor upon the expiration or earlier termination of this Lease without credit to Lessee; provided,
however, Lessor, at it option, may require Lessee to remove any additions and/or repair any
alterations to restore the Leased Premises to the condition existing at the time Lessee took
possession, with all costs of removal, repair, restoration, or alterations to be borne by Lessee. This
clause will not apply to moveable equipment, furniture or moveable trade fixtures owned by Lessee,
which may be removed by Lessee at the end of the Lease Term if Lessee is not then in default and if
such equipment and furniture are not then subject to any other rights, liens and interests of Lessor.
Lessee will have no authority or power, express or implied, to create or cause any construction lien
or mechanics' or materialmen's lien or claim of any kind against the Leased Premises or any portion
thereof or any Railway property. Lessee will promptly cause any such liens or claims to be released
by payment, bonding or otherwise within thirty (30) days after request by Lessor, and will indemnify
Lessor against losses arising out of any such claim including, without limitation, legal fees and court
costs. NOTICE IS HEREBY GIVEN THAT LESSOR WILL NOT BE LIABLE FOR ANY
LABOR, SERVICES OR MATERIAL FURNISHED OR TO BE FURNISHED TO LESSEE, OR
TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER LESSEE, AND THAT NO
MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
WILL A TT ACH TO OR AFFECT THE INTEREST OF LESSOR IN THE PREMISES. LESSEE
WILL DISCLOSE THE FOREGOING PROVISIONS TO ANY CONTRACTOR ENGAGED BY
LESSEE PROVIDING LABOR, SERVICES OR MATERIAL TO THE PREMISES.
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15. Assignment
Lessee will not assign this Lease, in whole or in part, or sublease the Leased Premises,
in whole or in part, without the prior written consent of Lessor, which consent will not be
unreasonably withheld, subject to Lessor's right ofrecapture set forth below, and in no event will
Lessee be released from any obligation or liability under this Lease following any such assignment or
sublease. No sublessee of the Leased Premises or any portion thereof, may further assign or sublease
its interest in the Leased Premises or any portion thereof. All legal fees and expenses incurred by
Lessor in connection with the review by Lessor of Lessee's requested assignment or sublease
pursuant to this Section, together with any legal fees and disbursements incurred in the preparation
and/or review of any documentation, will be paid by Lessee within thirty (30) days of invoice for
payment thereof, as additional rent. If the rent due and payable by any assignee or sublessee under
any permitted assignment or sublease exceeds the Rent payable under this Lease for such space,
Lessee will pay to Lessor all such excess rent and other excess consideration within ten (10) days
following receipt thereof by Lessee.
Within fifteen (15) days after Lessor's receipt of Lessee ' s request for Lessor's consent
to a proposed assignment or sublease, excluding any assignment or sublease to an affiliate of Lessee,
Lessor shall have the right to require Lessee to reconvey to Lessor that portion of the Premises which
Lessee is seeking to assign or sublet. Lessee shall reconvey that portion of the Premises in
consideration of Lessor's release of Lessee from all future Rent and other obligations, which would
not otherwise survive termination of the Lease, with respect to the portion of the Premises so
reconveyed. Any such reconveyance shall be evidenced by an agreement reasonably acceptable to
Lessor and Lessee in form and substance.
16. Fencing
Before use of the property, Lessee shall erect an Armco-type barricade or a chain-link fence
of a type approved by the authorized representative of Railway, along all boundaries of the herein
leased ground space, and thereafter shall maintain, repair and/or replace said barricade or fence at
Lessee's sole cost and expense. When the barricade or fence is in place, and to expedite the
inspection of it, Lessee shall notify:
Florida East Coast Railway, L.L.C.
P. O. Drawer 1048
St. Augustine, Florida 32085
(904) 826-2375
In the event Lessee does not notify Railway that the barricade or fence is in place within thirty (30)
days, then in that event, this Lease Agreement shall be cancelled and Lessee shall immediately vacate
the property.
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17. Care Around Tracks
Lessee shall adopt, monitor and enforce reasonable rules and regulations for the
conduct of Lessee's employees, patrons, agents and contractors (including employees thereof) or any
other persons using said premises to protect them from inj ury while on, about or near any track on or
adjoining the Leased Premises.
18. Destruction or Damage to Leased Premises
If the Premises are at any time damaged or destroyed in whole or in part by fire,
casualty or other causes, Lessor shall have sixty (60) days from such damage or destruction to
determine in its sole discretion and inform Lessee whether Lessor will restore the Premises to
substantially the condition that existed immediately prior to the occurrence of the casualty. If Lessor
determines not to restore the Leased Premises, it will notify Lessee and Lessee's sole remedy shall be
to terminate the Lease upon prior written notice to Lessor. If Lessor elects to rebuild, Lessor shall
complete such repairs to the extent of insurance proceeds within one hundred and eighty (180) days
from the end of the sixty (60) day period. If such repairs have not been completed within that 180-
day period, and Lessee desires to terminate the Lease as a result thereof, then Lessee must notify
Lessor prior to Lessor's completion of the repairs of Lessee's intention to terminate this Lease.
Lessor shall then have ten (10) days after Lessor's receipt of written notice of Lessee's election to
terminate to complete such repairs (as evidenced by a certificate of completion). If Lessor does
complete such repairs prior to the expiration of such ten-day cure period, Lessee shall have no such
right to terminate this Lease. Lessee shall, upon substantial completion by Lessor, promptly and
diligently, and at its sole cost and expense, repair and restore any improvements to the Leased
Premises made by Lessee to the condition which existed immediately prior to the occurrence ofthe
casualty. If, in Lessor's reasonable estimation, the Leased Premises cannot be restored within two
hundred forty (240) days of such damage or destruction, then either Lessor or Lessee may terminate
this Lease as of a date specified in such notice, which date shall not be less than thirty (30) nor more
than sixty (60) days after the date such notice is given. Subsequent to Lessor's determination to
restore the Leased Premises, and until the restoration of the Premises is complete, there shall be an
abatement or reduction of the Rent in the same proportion that the square footage of the Leased
Premises so damaged or destroyed and under restoration bears to the total square footage of the
Leased Premises, unless the damaging event was caused by the negligence or willful misconduct of
Lessee, its employees, officers, agents, licensees, invitees, visitors, customers, concessionaires,
assignees, sub Lessees, contractors or subcontractors, in which event there shall be no such
abatement.
19. Default
19.1 DEF AUL T. The following will be events of default by Lessee under this Lease:
(a) Failure to pay when due any installment of Rent or any other payment required
pursuant to this Lease;
(b) The filing of a petition for bankruptcy or insolvency under any applicable
federal or state bankruptcy or insolvency law; an adjudication of bankruptcy or insolvency or an
11
admission that it cannot meet its financial obligations as they become due, or the appointment or a
receiver or trustee for all or substantially all ofthe assets of Lessee; the foregoing shall also apply to
all Guarantors;
(c) A transfer in fraud of creditors or an assignment for the benefit of creditors,
whether by Lessee or any Guarantor;
(d) Any act which results in a lien being filed against the Leased Premises, the
Land, Buildings;
(e) The liquidation, termination or dissolution of Lessee or any Guarantor, or, if
Lessee or any Guarantor is a natural person, the death of Lessee or such Guarantor;
(f) Failure to cure any non-monetary provision of this Lease within 20 days after
written notice thereof to Lessee.
19.2 REMEDIES. In the event of any default hereunder by Lessee, then without
prejudice to any other rights which it has pursuant to this Lease or at law or in equity, the Lessor
shall have the following rights and remedies, which are cumulative and not alternative:
(a) Lessor may terminate this Lease by notice to Lessee and retake possession of
the Premises for Lessor's account. Lessee shall then quit and surrender the Premises to Lessor.
Lessee's liability under all of the provisions of this Lease shall continue notwithstanding any
expiration and surrender, or any re-entry, repossession, or disposition hereunder, including to the
extent legally permissible, payment of all Rent and other charges until the date this Lease would have
expired had such termination not occurred. If Lessor so elects, Rent shall be accelerated and Lessee
shall pay Lessor damages in the amount of any and all sums that would have been due for the
remainder of the Term.
(b) Lessor may enter the Premises as agent of the Lessee to take possession of any
property of the Lessee on the Premises, to store such property at the expense and risk of the Lessee or
to sell or otherwise dispose of such property in such manner as the Lessor may see fit without notice
to the Lessee. Re-entry and removal may be effected by summary dispossess proceedings, by any
suitable action or proceeding, or otherwise. Lessor shall not be liable in any way in connection with
its actions pursuant to this section, to the extent that its actions are in accordance with law.
(c) Lessor may relet all or any part of the Premises for all or any part of the
unexpired portion of the Term ofthis Lease or for any longer period, and may accept any Rent then
attainable; grant any concessions of Rent, and agree, at Lessee's expense, to paint or make any
special repairs, alterations, and decorations for any new Lessee as it may deem advisable in its sole
and absolute discretion. Lessor shall be under no obligation to relet or to attempt to relet the
Premises greater than that imposed by law.
(d) Lessor may remedy or attempt to remedy any default of the Lessee under
this Lease for the account ofthe Lessee and to enter upon the Premises for such purposes. No notice
of the Lessor's intention to perform such covenants need to be given the Lessee unless expressly
12
required by this Lease. The Lessor shall not be liable to the Lessee for any loss or damage caused by
acts of the Lessor in remedying or attempting to remedy such default and the Lessee shall pay to the
Lessor all expenses incurred by the Lessor in connection with remedying or attempting to remedy
such default. Any expenses incurred by Lessor shall accrue interest from the date of payment by
Lessor until repaid by Lessee at the highest rate permitted by law.
19.3 COSTS.
Lessee shall pay to Lessor on demand all costs incurred by Lessor, including attorneys'
fees and costs, (whether incurred in preparation for or at trial, on appeal, or in bankruptcy), incurred
by Lessor in enforcing any of the obligations of Lessee under this Lease. In addition, upon any
default by Lessee, Lessee shall also be liable to Lessor for the expenses to which Lessor may be put
in re-entering the Premises, reletting the Premises and putting the Premises into the condition
necessary for such reletting (including attorneys' fees and disbursements, marshall's fees, and
brokerage fees, in so doing), and any other expenses reasonably incurred by Lessor.
19.4 WAIVER.
No delay or omission by Lessor in exercising a right or remedy shall exhaust or
impair the same or constitute a waiver of, or acquiescence to, a default.
19.5 DEFAULT BY LESSOR.
In the event of any default by Lessor of any material term of this Lease, Lessee will
give Lessor written notice specifYing such default with particularity, and Lessor shall have a period
of thirty (30) days following the date of such notice in which to commence the appropriate cure of
such default. Unless and until Lessor fails to commence and diligently pursue the appropriate cure of
such default after such notice or complete same within a reasonable period oftime, Lessee shall not
have any remedy or cause of action by reason thereof. Notwithstanding any provision ofthis Lease,
Lessor shall not at any time have any personal liability under this Lease, and Lessee's sole remedy
with respect thereto shall be termination of the Lease.
20. Hold Over
In addition to and not limiting any other rights or remedies which Lessor may have on
account of Lessee holding over without written consent of Lessor, Lessee shall pay to Lessor any and
all direct and consequential damages incurred by Lessor on account of such unapproved holding over
including claims by Lessees entitled to future possession.
21. Condemnation
If the property or any part thereof wherein the demised premises are located shall be
taken by public or quasi-public authority under any power of eminent domain or condemnation, this
lease, at the option of the Lessor, shall forthwith terminate and the Lessee shall have no claim or
interest in or to any award of damages for such taking.
13
22. Ouiet Enioyment
If Lessee pays the rent and all other charges and fully performs all of its obligations
under this Lease, Lessee shall be entitled to peaceful and quiet enjoyment of the Premises for the full
Term without interruption or interference by Lessor or any person claiming through Lessor.
23. No Waiver or Modification
None of the provisions hereof shall be waived or modified, except 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 ofthe parties and that neither the failure ofthe Lessor to enforce
each and every provision, nor any course of conduct by the Lessor shall be considered as a waiver of
these provisions.
24. Successors and Assigns
The provisions hereof shall be binding upon and inure to the benefit of the successor,
executors, administrators and permitted assigns of the respective parties.
25. Special Notice Regarding Radon Gas
Lessee is hereby notified, in accordance with Section 404.056(8), Florida Statutes,
that Radon Gas is a naturally occurring radioactive gas that, when accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over a period oftime.
Levels of Radon that exceed federal and state guidelines have been found in buildings in the State of
Florida. Lessee is further notified that additional information regarding Radon Gas, and the testing
for Radon Gas, may be obtained from the Public Health Units of the various counties.
26. Restrictions
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
14
prohibited.
27. Notices
Any notice to be given or to be served upon any party hereunder, in connection with
this lease, must be in writing and must be given by certified or registered mail and shall be deemed to
have been given and received when a certified or registered letter, containing such notice, properly
addressed, with postage prepaid, is deposited in the U.S. Mail; or, if given otherwise than by certified
or registered mail, it shall be deemed to have been given when delivered to and received by the party
to whom it is addressed. Such notices shall be addressed to the parties herein at the following
addresses:
TO LESSOR: Michael O. Bagley, Director,
Industrial Development & Real Estate
Florida East Coast Railway, L.L.c.
P. O. Drawer 1048 (1 Malaga Street)
St. Augustine, FL 32085-1048
TO LESSEE: City of Boynton Beach
P. O. Box 310
Boynton Beach, Florida 33425-0310
28. Governing Law
This lease shall be governed by the laws ofthe State of Florida.
29. Cancel and Supersede
This agreement cancels and supersedes that certain Lease Agreement dated October 16, 1996
by and between the parties hereto, covering the lease of space hereinabove described.
30. Illegality
If any provision 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.
31. Security Deposit
Upon the execution of this Lease, Lessee shall remit to Lessor a security deposit in the amount of
$ NONE in cash or other form acceptable to Lessor in its sole discretion (the "Security
Deposit"). The Security Deposit represents security for the faithful performance and observance by
Lessee of each and every term of this Lease. Lessor may apply all or part of the Security Deposit to
any unpaid rent, additional or late charges as set forth in paragraph 2 of this Lease or any other
charges due from Lessee under this Lease, or to cure any other default of Lessee. The Security
Deposit shall not constitute liquidated damages. If Lessor uses any part of the Security Deposit,
15
r
Lessee shall restore the Security Deposit to its full amount within ten (10) days after notice from
Lessor. No interest shall accrue to or for the benefit of Lessee on the Security Deposit. Lessor shall
not be required to keep the Security Deposit separate from its other accounts, and no trust
relationship is created with respect to the Security Deposit. Lessor shall not be obligated to return
the Security Deposit to Lessee upon the expirations or earlier termination of the Lease unless and
until all of the following events occurs: (i) the payment in full of all annual rent and other charges
due pursuant to the Lease and (ii) the repair of any and all damage to the Leased Premises.
111111111111111111111111111111111111111/ 1111111111111111111111111111111111111111111111111111/11/1111111111111111111111111111111111111/11111
16
. .
# . .
.
7ff
IN WITNESS WHEREOF, the parties have hereto set their names and seals this II - day of
{)J:~ 2004.
Signed, sealed and delivered FLORIDA EAST COAST RAIL WAY,
L.L.c. A Limited Liability Company
in the presence of:
~CLJ¡L>~ M By: (SEAL)
Witness as to Railway . R. F. MacSwa' , xecutive Vice President
Æi/'T~1 8£--7'~ Attest: ~~UJ.-~
Witness as to Railway U Assistant Secretary
Date of Execution: 10111 \ 0 ~
CITY OF BOYNTON BEACH
a Municipal Corporation
.
/J~~ V· '\W~
Witness as to Industry
/ (Print Name) \!.e \ MOo V. mJk 'Í
/
try
~PrintName) IS B T// L (Sf} H G- ì
?ate of Execution: , 0 - b - 07
CITY AITORNEY
17
AGENDA 10/4/04
CONSENT AGENDA ITEM #VI-C1
RESOLUTION #04-175
3 LARGE FEC RIGHT -OF-WAY AND TRACK
MAPS ARE FILED WITH ORIGINAL
AGREEMENT ON FILE IN THE CITY CLERK'S
OFFICE
·
FEC RAILWAY TENANT INFORMATION SHEET
COMPLETION REQUIRED FOR LEASEILICENSE EXECUTION
MAIN OFFICE:
Company
Name: City of Boynton Beach
Address: 100 E. Boynton Beach Blvd.
Boynton Beach. FL 33425-0310
Phone No.: (561) 742-6000
E-Mail Address: Majorsw@ci. boynton-beach. f1. us
OwnerIPresident: Kurt Bressner, City Manager
Corporate Status/ID l'i"o.: Federal ID #59-6000282. Tax Exempt #60-04-116451-54C
Contact Person/TitlelPhone No.: Wally Maiors. Recreation & Parks Director/#(561)742-6255
Billing Address: same as above
Billing Contact Person/TitlelPhone è'io.: same as above
LEASE SITE LOCATION:
(N/A if same as above)
Company
Name:
Address:
Phone No.:
E-Mail Address:
Manager:
Contact Person/TitlelPhone No.: