Res 08-97 RESOLUTION NO. 8-97
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AUTHORIZING EXECUTION OF A
LEASE AGREEMENT WITH FLORIDA EAST COAST RAILWAY
COMPANY FOR THE LEASE OF SIX PARCELS OF LAND ON THE
RAILWAY'S RIGHT-OF-WAY AND PROPERTY IN DELRAY BEACH,
FLORIDA; ACCEPTING THE TERMS AND CONDITIONS OF SAID
LEASE AGREEMENT; PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Delray Beach
wishes to enter into an agreement with Florida East Coast Railway
Company for the lease of six (6) parcels of land on the Railway's
right-of-way and property in Delray Beach for the municipal purposes
of parking, roadway, sidewalk and beautification.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS:
Section 1. That the Mayor and City Clerk of the City of
Delray Beach are hereby authorized to enter into a lease agreement
between the Florida East Coast Railway Company and the City of Delray
Beach, for the lease of six (6) of land for
as
Lessee,
parcels
parking, roadway, sidewalk and beautification, a copy of which is
attached hereto and made a part hereof.
Section 2. That the City Commission of the City of Delray
Beach hereby approves and accepts the terms and conditions of the
lease agreement between the Florida East Coast Railway Company and the
City of Delray Beach, as hereinabove described.
Section 3. That this resolution shall take effect
immediately upon passage.
PASSED AND ADOPTED in regular session on this the 21st day
of January, 1997.
ATTEST:
J Cit~ ~erk /
DO NOT REMOVE FROM AGREEMENT
INSTRUCTIONS
1. Kindly have the appropriate authority sign ALL copies of the agreement on Page 8 ,
where indicated by check marks. Execution on behalf of the City/County should be
~,omplished by the authorized authority of the City or County. City or County Clerk
should attest the agreement and indicate date of execution.
2. Have two (2) separate persons witness the signatures to the left thereof~ AFFIXING
THE CITY/COUNTY SEAL.
3. Please verify the name and address on Page 1, making any necessary corrections,
however, DO NOT alter or add to the provisions of this document. I/; for any reason,
you cannot execute same in its present form, kindly remm to the undersigned with your
comments in writing.
4. DO NOT INSERT EFFECTIVE DATE OF AGREEMENT ON PAGE 1.
5. Return ALL copies of the agreement to this office together with Resolution adopted by
C/ty/Cotmty, authorizing execution and acceptance of agreement. When completed, one
fully executed copy of' the agreement will be returned to you for your files upon
completion of execution.
6. Failure to execute the agreement exactly as indicated above will result in rejection by our
Law Department and require resubmission for proper execution.
F'fle: }17-3-1
THIS LEASE, is effective this day of A.D. 19 , by
and Imween FLORIDA EAST COAST P,.A~WAY COMPANY, he~'e~n~er called "Ra~lw&y" and
CITY OF DEIA~Y BEACH. & Mtmic/pal Corporation of the State of Florida, whose address
310 S.E. 1st Street, Suite 4, Delray Beach, Florida 33483, hereinafter called "Lessee",
WITNESSETH:
That in consid~ ofthe covenants herein contained to be k~ and performed, Railway
does hereby lease to said Lessee the following described property:
Six Parcels of land on Railway's right of' way a~-d propmy at De~-ay Beach, Florida, more
~y described as follows:
l~ared A: A rectangularly shaped parcel of land meamirng 25 feet, easterly arid westerly, by 400 feet,
northerly and southerly, on Railway's easterly right of way with northwest corner of said parcel
located 25 feet easterly from and aI right angles to a point located in thc centertine of Railway's main
track 3,$$7 feet, more or less, southerly from Mile Post No. 316, as measured from Jacksonville,
Florida; thence continue southerly parallel with and 25 feet distant easterly from centerline of said
main Uack for a distance of 400 feet to a point; thence continue easterly, at right angles to aforesaid
coup, for a distance of 25 feet lo Railway's easterly right of way limit; thence continue northerly,
coinciding with Railway's easterly right ofway limit and parallel with the centerline of said main track
for a distance of 400 feet; thence continue westerly at right angles to previously described course, for
a distance of 25 feet to Point of Beginning.
l~arcel B: parallelogram-shaped parcel of land meamiring 18 feet. east and west, by 1,275 feet,
northerly ~nd southerly, on Railway's westerly right of way with northeast comer of said parcel
io~ated 32 feet distant westerly from and at fight angles to a point in the centedine of Railway's main
wac, k, 3,107 feet, more or less, southerly from Mile Post No. 316, a,s measured from ilacksonville,
Florida; thence continue southerly, parallel with and 32 feet distant westerly from centerline of said
main uack, for a distance of 1,275 feet; thence continue west for a distance of 18 feet to Railway's
westerly right of way limit; thence contime nonherly gong said westerly right of way limit for a
distance of 1,275 feet to a point; thence continue east for a distance of 18 feet to said Point of
Ftle: 317-3-1
Page
TO HAVE AND TO HOLD the hereby leased property:
For the term of one (1) year fi.om the effective date hereof subject to renewal as provided in
paragraph D hereof; or until terminated as hereinafter provided.
LESSEE COVENANTS TO PAY RENTAL AS FO~J.OWS:
An annual rental of $5,900.00, plus Florida Sales and Use Tax, payable in cash upon the
execution and delivery of this lease, and if renewed, the same amount in cash in advance for each and
every year thereafter until terminated. All rentals for initial and renewal terms are payable in cash on
the date specifi~ in advance, without oral or written demand. Lessee hereby expressly waiving such
demand.
LESSEE AND RAH.WAY COVENANT AS FOLLOWS:
A. In the event of termination of this lease by Railway before the expiration of the initial or
any renewal terms, any rental paid in advance unearned shall be returned to Lessee, less any amounts
owing to Railway under this lease.
B. That none of the provisions hereof shall be waived or modified, except by Railway, or by
mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor
subsequent verbal waiver, or modification, shall be binding under any circumstances. Further, that
this lease constitutes the entire understanding of the parties and that neither the failure of the Railway
to enforce each and every provision, nor any course of conduct by the Railway shall be considered
as a waiver of these provisions.
C. Either party may, in its discretion, for any reason whatsoever, terminate this lease at any
time by the giving of notice to the other party as hereinafter provided. If this lease is for a term of
one or more years, then 30 days prior notice in writing of the intention of the party to terminate this
lease shall be given tO the other party. If this lease is for any term less than one year, then 10 days
prior notice in writing of the intention of the party to terminate this lease shall be given to the other
· party, PROVIDED, HOWEVER, Railway may, at its option, terminate this lease for any default or
breach of lessee by giving 2 days notice in writing of such termination to the lessee. Any notice of
termination shall be delivered to the other party by placing such notice in the United States mail with
s~fficient postage directed to the other party's post office address, either as last furnished to the
terminating party or as otherwise known to it.
D. If Lessee holds over and remains in possession of the hereby leased property aider the
~piration of the term specified in this lease, or any renewals of such term, this lease shall be
considered as renewed for one (1) year, subject to the same terms and conditions as herein contained
in this lease. That Lessee shall have no expectation of renewal and that the term of'this lease is only
for the time specified herein, subject always to the termination provisions and regardiess of the length
Page
° ·
of lime that Lessee has occupied the leased property, or the construction by Lessee of any buildings,
~ works, paving, barricades or personal property placed thereon.
E. That if' any provision or provisions of this lease shall be held to be invalid, illegal or
une~orceable, the validity, ieglg~ and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
1;. Thai Lessee shall use the leased properly only/'or:
Parcel A - Parking Parcel D -Parking
Parcel B - Roadway Parcel E - Beautification
Parcel C - Sidewalk Parcel F - Beautification
AND LESSEE COVENANTS WITH RAILWAY AS FOLLOWS:
1. To keep the leased property and any bu/ldin~s or other structure, now or hereafter erected
therem~, in good condition and repak at Lessee's own expense during the existence of'this lease, and
to keep the leased property or premises free and clear of any and all t~'ass, weeds, brush and debris
of any Idnct, so as to prevent the same becoming dangerous, inflammable or objectionable. Railway
shall have no duty to inspect or maintain any of the leased properly, buildings, or other structures,
ii'any, during the term of this lease.
ii. To vacate, quit and deliver up the leased property on or before any termination date of this
lease in as good condition as it is now.
3. Not to erect or cause to be erected any building or other structure, or any addition to
exisfin~ buildin~ or structures on the leased properly without f~rst obtaining the approval in writing
by Railway of the location, material and construction of the same.
4. Not to sublet the leased property or any part thereof; nor assign this lease, without the
consent in writing of Railway, this lease being executed by Railway upon the credit and reputation
of Lessee. Acceptance by Railway of rental from a third party shall not be considered as an
:~. Not to take any action or allow any action to be taken by third parties which will interfere
with or dispara~e Railway's title to the leased property.
6. Not to permit the use of the leased property in any manner that will obstruct or interfere
with the operation of the Railway, or use of its properly.
Page
7. Not to make or suffer any waste or any unlawful, improper, or offensive use of the leased
property or premises, or any use disapproved by Railway.
$. To the ex'tent allowed by law, and subject to the limitations of Florida State Statutes
768.28, to indemnify, save and hold harmless Railway, its agents, servants and employees fi.om and
agah~ all loss, claims, costs charges, expense, suits, damage and judgments, which they may suffer,
sustain or in anywise be subjected to, or for which it may be held liable on account of the death,
personal injuries, damage or loss to any person or persons, including employs, s, agents and officers
of Ra~way and of Lessee, directly or indirectly arising out of or on account of the leasing to or use
of the property by Lessee; whether due or claimed to be due by the joint negligence of Railway, its
employees, agents or servants, or other~vise.
9. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28, to
indemnify, save and hold harmless Railway, its agents, servants and employees from and against all
loss, claims, costs, charges, expense, suits, damage and judgments, which they may suffer, sustain or
in anywise be subjected to, or for which it may be held liable on account of any loss or damage caused
in any manner to any of Lessee's buildings, stmc~res, works and any personal property whatsoever
of Lessee, situated, placed, kept or stored on, in or near the property or premises hereby leased, as
well as on account of loss or damage to any personal property whatsoever, not owned by Lessee,
whether owned by Railway or by ol~ers, arising directly or indirectly out of or on account of the
leasing to or use by Lessee of the property hereby leased; whether due or claimed to be due by the
joint negligence of Railway, its employees, agents or servants or otherwise.
I0. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28,
to indemnify Railway for all loss, claims, damage, costs and expenses, including attorneys' fees and
environmental cleanup costs arising fi.om Lessee's presence upon or use of the leased premises which
causes the premises to become contaminated by toxic or b,Tardous substances or wastes above levels
which exceed the allowable levels as set forth in local, state or federal laws and regulations. Railway
shall have the right, at reasonable times during the term of this Lease, upon prior notice to Lessee and
accompanied by a representative of Lessee (except in cases of emergency) to enter the leased
property, including any building or structure that may at any time be on the leased property, for the
purpose of examining and inspecting the condition of the leased property and to ensure Lessee's
compliance with the terms and conditions of this Lease.
11. To be resporm'ble for and pay Railway the actual cost and expense Railway may incur in
paying for, repairing or replacing any engines, cars, rail material, cross-ties, equipment, tools,
machinery, fi.eight or other property whatsoever, either owned or in possession of Railway, lost or
damaged by any default by Lessee hereunder, or negligence, Amrmative act, or omission of Lessee.
12. To perform, at the sole expense of Lessee, all work required in the preparation of the
property or premises hereby leased for occupancy by Lessee, in the absence of any special provision
herein contained to the contrary; and Lessee does hereby accept the leased property or premises as
now being in fit and tenantable condition for all purposes of Lessee.
Page 4
13. To pay, within thirty (30) days alter presentation unto Lessee by Railway of bills for the
same, gl 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 of the property or
praises herein leased. All taxes and special assessments, payable on an annual basis, are to be pro°
rated by the parties hereto for the year during which thi's lease is made, as well as the year in which
the same may be terminated.
14. To pay in the same manner as provided in Paragraph 13 hereof; the amount of any
necessary doctunentary stamp taxes required to be al~ed to this lease under the laws of the United
States of.America, the State of Florida, or both.
15. To pay, either directly or upon bills presented unto Lessee by Railway within thirty (30)
days after presentation of the same, all bills for electricity for lighting or power, gas, water, telephone
and telegraph services, or the proportionate part of the same used by Lessee upon or in the leased
property or premises.
16. That it will indemnify, save and hold harmless Railway from any loss, claim or damage
which Lessee may sustain arising directly or indirectly by reason of either existing or future zoning
or other regulations promulgated by any governmental agency which may adversely affect use by
Lessee of the lands hereinabove described, and Lessee shall assume all responsibility for procuring
or complying with any ordinance, resolution, order, permit, consent or other such regulation,
promul~ted by any governmental agency whatsoever, for building or otherwise, required for the use
of the premises hereinabove described or for the construction of any facilities upon such premises.
17. That it shall not permit others to use the whole or any part of the leased property or
premises, except under and in compliance with the terms and conditions of this lease, and Lessee shall
hold Railway harmless as to any such use.
18. That none of the provisions of Paragraph "A" hereof shall be construed as any waiver by
Railway of any landlord's lien or liens of Railway upon any personal property, buildings or structures
of Lessee, for any rental due or to become due hereunder unto Railway, and Lessee shall not remove
any such structures, buddings or personal property from the here'mabove described premises, unless
. and until all rentals and any other sum of money herein specified to be paid the Railway shall have
been fully paid unto Railway.
19. That Lessee shall remove any buildings, structures, works or personal property upon the
leased property or premises, including any such items placed upon the leased property or premises
subsequent to the date of this lease on or before any termination date ofthis lease, upon request from
the ~y to do so, and in default thereof~, such property shall become the property of the Railway.
PROVIDED, HOWEVER, Railway may, at its option cause removal oftbe same fi'om the hereby
Page 5
leased property or premises and/or storage thereof, and storage of any of Lessee's property and
property of others, placed by or with Lessee's permission or sufferance on the hereby leased property
or premises. The reasonable cost or expense of removal and/or storage of any buildings, structures,
works or personal property shall be paid by Lessee unto Railway forthwith upon demand for same.
20. That is waives and relinquishes any legal fights and monetary claims which it might have
fca'full compensation, or damages of any sort, including but not limited to special damages, severance
dm'aages, removal costs or loss of business profits resulting fi.om its loss of occupancy of the.leased
properly specified in this agreement, or adjacent properties owned or leased by it, when any or all of
such properties are taken by eminent domain proceedings or sold under the threat thereof. That this
waiver and relinquishment applies whether (1) this lease is in existence on the date of taking or sale;
or (2) has been terminated prior thereto.
21. Tim it is expressly agreed by and between the parties hereto that any obligations of the
Lessee under the terms of this agreement which are not paid within thirty (30) days of presentation
of bills for same by Railway shall bear interest at the rate of twelve per cent (12%) per annum
compounded annually fi.om the date of presentation of the bill until same shall be paid. It is further
expressly agreed that in the event Railway shall institute and prevail in any action or suit for the
enforcement of any of its rights under the provisions of this agreement, Lessee will pay to Railway
a reasonable attorney's fee on account thereof. Also in the event of litigation, the parties agree that
the laws of the State of Florida will apply. In an action to enforce any of the provisions ofthis
agreement, the parties hereto specifically agree that venue shall lie in St. Johns County, Florida.
22. That its facilities and operations on the herein leased area shall conform to all applicable
regulations and ordinances of any govemrnemal agency having jurisdiction thereof.
23. That, at its expense, it will install and maintain facilities to prevent accumulation of
surface water, industrial liquids, solid waste matter and sanitary waste resulting fi.om Lessee's
operations within the herein leased area. Such facilities to be approved by the Railway and any other
governmental agency having jurisdiction thereof.
:24. Should any portion of the property described in this lease be used for the loading,
unloading or storage ofb,7~rdous materials, the Lessee shall (1) be solely responsible for ascertaining
that local, state and federal laws, ordinances and regulations do not prohibit the loading, unloading
or storage ofbsT~rdous materials on the leased property and (2) be solely responsible as between the
Railway and the Lessee, for complying with all of the foregoing laws, ordinances and regulations
which affect or regulate the loading, unloading or storage operations of hazardous materials on this
leased property. -.
Page
25. It is understood between the parties hereto that Railway reserves unt° itself, its
successors, permktees, licensees, or other persons, the right to construct and maintain other facilities,
including but not limited to, pipelines and/or communication cables, over and across the Railway's )
affected herein leased property, and further, that Lessee shah take no measures to interfere with the
construction or maintenance of said facilities and shall at all times allow ingress and egress to the
herein leased property by said successors, pern~.'ttees, licensees or other persons.
26. Lessee will do no grading on sai. 'd leased ground space that will in any manner interfere
with the Railway's roadbed or other facilities.
27. Lessee is specifically notified that its personnel may be working in an area containing
buried active fiber-optic transmission cables as well as other cables and other facilities. C-re, at care
will be taken by the Lessee to ensure that no damage is done to those cables and facilities. However,
ifa cable or other facility is damaged or cut, Lessee agrees to indemni~ Railway for any monetary
damages which may result.
28. Lessee agrees that no plants, shrubbery, 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 or other vegetation having a height of more than two feet (2') will be placed within two
hundred fit~ feet (250') of any at grade street crossing, and if such vegetation exceeds two feet (2')
in height, the Railway may trim such vegetation to a two foot (27 height at Lessee's expense; that said
plants, shrubbery or other vegetation shall be trimmed by the Lessee so as to maintain a distance from
the centerline of the nearest track of twenty-five feet (25') and if such vegetation is closer than
twenty-five feet (25') from the centerline of the nearest track, the Railway may trim or remove such
vegetation so that no vegetation is within twenty-five feet (25') of the centerline of the nearest track
at Lessee's expense. However, th/s restriction in no way limits the indemnification provisions of this
lease as set forth in Paragraphs 8 and 9 hereof'. Also, no plants, shrubbery or other vegetation of a
hazardous nature that might produce injury to any person coming in contact with said plants,
shrubbery or other vegetation will be placed upon said property of Railway by the Lessee. The
placement of any wells by the Lessee on the property of the Railway is strictly prohibited.
29. Lessee recognizes ownership of said property by the Railway and Lessee has no intention
of setting up any claim of ownership to the herein leased properties.
30. Lessee shall, at its sole cost and expense, install, maintain, and/or replace such barricades
and bumping blocks, as required by the Railway, to prevent automobiles from being parked or rolling
beyond the space hereby leased. In the event Lessee does not maintain, and/or replace said barricades
or bumping blocks to prevent automobiles from being parked or rolling beyond the space hereby
leased within thirty (30) days after notification by Railway, then, in that event, this lease agreement
shall be canceled and Lessee shall immediately vacate the property.
3 I. This agreement cancels and supersedes that certain Lease Agreement by and between the
parties hereto, dated January 9, 1991, covering the hereinabove described property.
Page 7
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed under the seal.
Signed, sealed and delivered FLORIDA EAST COAST RAILWAY
in the presence of~ COMPANY, a Florida Corporation
By:, .(SEAL)
C. F. Zellers, Jr., President
Attest:
Wimesses as to Railway Mary C. Mueller, Assistant Secretary
Date of Execution:
CITY OF DELRAY BEACH
a Municipal Corporation of the State of Florida
~By: (SEAL)
Wimess as to Lessee Mayor
Name), ,....(Print Name),
.,,Attest;
~Witness as to Lessee City Clerk
/Cf~t Hame) ~q'Tiat ~ame),
./Date of Execution:
/' Approved as lo Form:
Page 8
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER ~[~
SUBJECT: AGENDA ITEM # ~ ~- REGULAR MEETING OF JANUARY 21, 1997
RESOLUTION NO. 8-97/LEASE AGREEMENT WITH FLORIDA EAST
COAST RAILWAY COMPANY
DATE: JANUARY 17, 1997
This is before the Commission to consider approval of an agreement
with Florida East Coast Railway Company for the lease of six FEC
properties for parking, roadway, sidewalk and beautification
purposes. A portion of land which had been a part of Parcel "C"
is being sold to Mouw Plaza, L.C. and will be included as part of
that development planned for the northwest corner of S.E. 3rd
Avenue and S.E. 1st Street. The City's lease on this land has
been assigned to the new land owner (Mouw).
The proposed lease agreement with FEC reflects the amended legal
description as well as a decrease in the total annual cost of the
lease by $100.00 (from $6,000.00 to $5,900.00).
The agreement has been reviewed by the City Attorney's Office.
Attached is a memorandum from Mr. Tolces which expresses a
concern.
I recommend that the lease agreement with the FEC Railway Company
be approved by adoption of Resolution No. 8-97.
ref:agmemol0
£1lV OF DELRnY BENCH ...... ........ ,
Writer's Direct Line: (561) 243-70~
D~kRAY B~AEH
Ali. America Ci~ ~MO~~
9, 99
1993
TO: David T. Harden, Ci~ Manager
FROM: David N. Tolces, Assistant Ci~ Attorn~
SUBJECT: Lease Agreement with FEC Railway Company
I reviewed the proposed lease agreement and have one concern. Paragraph 21 on Page 6
states that venue for any lawsuit will be in St. Johns County. Typically, under Florida
law, a municipality may only be sued in the county in which it resides. If the City were
to agree to paragraph 21, it is possible that the City would be waiving its right to assert
that venue must be in Palm Beach County. While this is not a major contractual issue,
in the event of a lawsuit, travelling to St. Johns County could become an inconvenience
and added expense.
This agreement must also be approved by the City Commission. Please let me know
your thoughts, and if you have any questions, please call.
DNT:smk
fec.dnt
Pr,'ntecl o,'~ R~cycled Pap~?r
FLORIDA EAST COAST RAILWAY COMPANY
ONE ~-.ALAGA STREET, P. O. BOX 1048, ST. AUGUSTINE, FLORIDA 32085-1048
Tcicphone (904) 826-2269 FAX (904) g26-2322
December 30, 1996
File: 317-3-1
DELRAY BEACH: Lease of 6 Parcels for Parking, Roadway, Sidewalk, Beautification
MP 316 + 3857'+
Mr. David T. Harden, Manager
City of Delray Beach
100 N. W. 1st Avenue
Delray Beach, FL 33444-2698
Dear Mr. Harden:
Enclosed for your handling for execution are duplicate originals of Lease Agreement covering the
lease of space as captioned above. The current lease agreement is being revised due to sale of a
portion of land which has been a part of"Parcel C". This portion of your lease has been assigned to
the new land owner, MOUW Plaza, L.C., whose address is 102 North Swinton Avenue, Delray
Beach, Florida 33444.
Kindly handle for execution in accordance with instructions attached to the agreemem, returning the
duplicate originals to this office for completion, aider which one fully executed agreement will be
returned to you for your file.
Your prompt handling and remm is requested.
Sincerely yours,
In~tus;rial gE)e/;e~egne/& R~al Estate
MOB/EVA/ver
Enclosures
cc: Mr. R. J. Jones
DO NOT REMOVE FROM AGREEMENT
INSTRUCTIONS
1. Kindly have the appropriate authority sign ALL copies of the agreement on Page 8 ,
where indicated by check marks. Execution on behalf of the City/County should be
accomplished by the authorized authority of the City or County. City or County Clerk
should attest the agreement and indicate date of execution.
2. Have two (2) separate persons witness the signatures to the leit thereof, AFFIXING
THE CITY/COUNTY SEAL.
3. Please verify the name and address on Page 1, making any necessary corrections,
however, DO NOT alter or add to the provisions of this document. If, for any reason,
you cannot execute same in its present form, kindly return to the undersigned with your
comments in writing.
4. DO NOT INSERT EFFECTIVE DATE OF AGREEMENT ON PAGE 1.
5. Retum ALL copies of the agreement to this office together with Resolution adopted by
City/County, authorizing execution and acceptance of agreement. When completed, one
fully executed copy of the agreement will be returned to you for your files upon
completion of execution.
6. Failure to execute the agreement exactly as indicated above will result in rejection by our
Law Department and require resubmission for proper execution.
File: 317-3-1
JAM 17 '9? 14:56 FEC ST.AUGUSTINE, FL - P.~
THIS LEASE, is eff~tiv¢ this day of A.D. 19 ., by
and between FLORIDA EAST COAST RAILwAy COMPANY, hereinafter called "Railway~ and
CITY OF DELRAY BEACH, a Municipal Corporation of the State of Florida, whose address is
310 S.E. 1st Street, Suite 4, Delray Beach, Florida 33483, hereinatter called "Lessee",
WITNESSETH:
That in consideration of the covenants herein contained to be kept and performed, Railway
does hereby lease to said Lessee the following described property:
Six Parcels of land on Railway's right of way and property at Delray Beach, Florida, more
particularly described as follows:
Parcel A: A rectangularly shaped parcel of land measuirng 25 feet, easterly and westerly, by 400 feet,
northerly and southerly, on Railway's easterly right of way with northwest comer of said parcel
located 25 feet easterly from and at right angles to a point located in the centerline of Railway's main
track 3,g57 feet, more or less, southerly from Mile Post 1'4o. 316, as measured from SacksonviHe,
Florida; thence continue southerly parallel with and 25 feet distant easterly from centefline of said
main track for a distance of 400 feet to a point; thence continue easterly, at right angles to aforesaid
course, for a distance of 25 feet to Railway's easterly right ofway limit; thence continue northerly,
coinciding with Railway's easterly right of way limit and parallel with the centerline of said main track
for a distance of 400 feet; thence continue westerly at fight angles to previously described course, for
a distance of 25 feet to Point of Beginning.
Parcel B: parallelogram-shaped parcel of land measuiring 18 feet, east and west, by 1,275 feet,
northerly and southerly, on Railway's westerly fight of way with northeast comer of said parcel
located 32 feet distant westerly from and at right angles to a point in the centerline of Railway's main
track, 3,107 feet, more or less, southerly fi.om Mile Post No. 316, as measured from Sacksonville,
Florida; thence continue southerly, parallel with and 32 feet distant westerly fi.om centerline of said
main track, for a distance of 1,275 feet; thence continue west for a distance of 18 feet to Railway's
westerly right of way limit; thence continue northerly along said westerly right of way limit for a
distance of 1,275 feet to a point; thence continue east for a distance of 18 feet to said Point of
S29~l_ File: 317-3-1
Pa~e I
Parcel C: A 5 foot strip of land on Railway's easterly right of way with easterly line of said parcel
commencing at a point on Railway's easterly fight of way limit 5,045 feet southerly fi.om Railway's
Mile Post No. 316, as measured fi.om Jacksonville, Florida, with easterly line continuing southerly
and coinciding with Railway's easterly right of way limit a distance of 675 feet, more or less, said
easterly line also being the westerly line of S.E. 3rd Avenue, Delray Beach, Florida; southerly line of
said parcel having a length of 5 feet coinciding with the northerly line of S.E. 2nd Street, Delray
Beach, Florida, at right angles to said easterly line, westerly line of said parcel being 5 feet distant
westerly from and parallel with said easterly line, with northerly line having a length of 5 feet and
being parallel with and 675 feet, more or less, distant northerly fi.om said southerly line.
Parcel D: A parcel of land on the station grounds of the Railway on the easterly side of its tracks
south of S.E. First Street at Delray Beach, Florida, with northerly line being 80 feet in length
coinciding with the south line of S.E. First Street and intersecting the centerline of the main track of
the Railway at a point located 5,121 feet, more or less, southerly fi.om the Railway's Mile Post No.
316 fi.om Jacksonville, Florida, easterly line being 190 feet in length coinciding with the easterly limit
of the said property of the Railway which is also the westerly line of S.E. Third Avenue, southerly
line being 125 feet, more or less, in length and located parallel with said northerly line and westerly
line being 195 feet, more or less, in length.
Parcel E: A rectangularly-shaped parcel of land on the easterly side of Rallway's right of way for its
main track, with said parcel being 25 feet in width, easterly and westerly, by 1,270 feet, more or less,
in length, northerly and southerly, with easterly limit of said parcel of ground space coinciding with
the Railway's easterly fight of way line, westerly limit being parallel with and 25 feet distant easterly
of the centerline of the Railway's main track and northefiy limit being located 505 feet, more or less,
southerly fi.om Railway's Mile Post No. 317 fi.om Jacksonville, Florida.
Parcel F: A parcel of land on the westerly side of Railway's right of way for its main track at Delray
Beach, Florida, more particularly described as follows:
Beginning at a point located 4,450 feet, more or less, southerly from Railway's Mile Post No. 317
from Jacksonville, Florida, and 28 feet westerly of the centerline of Railway's main track; thence
extending southerly parallel with and 28 feet distant westerly fi.om the centerline of Railway's main
track for a distance of 460 feet, more or less, to a point located 8 feet distant northerly of the north
line of Swinton Avenue, as measured at right angles therefi.om; thence westerly parallel with and 8
feet distant northerly fi.om the north line of Swinton Avenue, as measured at fight angles therefrom,
thence westerly parallel with and 8 feet distant northerly of said north line of Swinton Avenue for 30
feet, more or less, to Railway's westerly right of way line; thence northerly along said westerly right
of way line for 430 feet, more or less; thence easterly for said westerly right of way line for 430 feet,
more or less; thence easterly for 23 feet, more less, to Point of Beginning.
All as shown on Railway's Drawings A-1277-& A-1277-B, and A-1277-C, dated 11/29/96, attached
hereto and made a part hereof.
Page 1-A
TO HAVE AND TO HOLD the hereby leased property:
For the term of one (1) year from the effective date hereof subject to renewal as provided in
paragraph D hereof, or until terminated as hereinafter provided.
LESSEE COVENANTS TO PAY RENTAL AS FOLLOWS:
An annual rental of $5,900.00, plus Florida Sales and Use Tax, payable in cash upon the
execution and delivery of this lease, and if renewed, the same amount in cash in advance for each and
every year thereatter until terminated. All rentals for initial and renewal terms are payable in cash on
the date specified, in advance, without oral or written demand. Lessee hereby expressly waiving such
demand.
LESSEE AND RAILWAY COVENANT AS FOLLOWS:
A. In the event of termination of this lease by Railway before the expiration of the initial or
any renewal terms, any rental paid in advance unearned shall be returned to Lessee, less any amounts
owing to Railway under this lease.
B. That none of the provisions hereof shall be waived or modified, except by Railway, or by
mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor
subsequent verbal waiver, or modification, shall be binding under any circumstances. Further, that
this lease constitutes the entire understanding of the parties and that neither the failure of the Railway
to enforce each and every provision, nor any course of conduct by the Railway shall be considered
as a waiver of these provisions.
C. Either party may, in its discretion, for any reason whatsoever, terminate this lease at any
time by the giving of notice to the other party as hereinai~er provided. If this lease is for a term of
one or more years, then 30 days prior notice in writing of the intention of the party to terminate this
lease shall be given to the other party. If this lease is for any term less than one year, then 10 days
prior notice in writing of the intention of the party to terminate this lease shall be given to the other
party; PROVIDED, HOWEVER, Railway may, at its option, terminate this lease for any default or
breach of lessee by giving 2 days notice in writing of such termination to the lessee. Any notice of
termination shall be delivered to the other party by placing such notice in the United States mail with
sufficient postage directed to the other party's post office address, either as last furnished to the
terminating party or as otherwise known to it.
D. If Lessee holds over and remains in possession of the hereby leased property after the
expiration of the term specified in this lease, or any renewals of such term, this lease shall be
considered as renewed for one (1) year, subject to the same terms and conditions as herein contained
in this lease. That Lessee shall have no expectation of renewal and that the term of this lease is only
for the time specified herein, subject always to the termination provisions and regardless of the length
Page 2
of time that Lessee has occupied the leased property, or the construction by Lessee of any buildings,
structures, works, paving, barricades or personal property placed thereon.
E. That if any provision or provisions of this lease shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
F. That Lessee shall use the leased property only for:
Parcel A - Parking Parcel D -Parking
Parcel B - Roadway Parcel E - Beautification
Parcel C - Sidewalk Parcel F - Beautification
AND LESSEE COVENANTS WITH RAILWAY AS FOLLOWS:
1. To keep the leased property and any buildings or other structure, now or hereafter erected
thereon, in good condition and repair at Lessee's own expense during the existence of this lease, and
to keep the leased property or premises free and clear of any and all grass, weeds, brash and debris
of any kind, so as to prevent the same becoming dangerous, inflammable or objectionable. Railway
shall have no duty to inspect or maintain any of the leased property, buildings, or other structures,
if any, during the term of this lease.
2. To vacate, quit and deliver up the leased property on or before any termination date of this
lease in as good condition as it is now.
3. Not to erect or cause to be erected any building or other structure, or any addition to
existing buildings or structures on the leased property without first obtaining the approval in writing
by Railway of the location, material and construction of the same.
4. Not to sublet the leased property or any part thereof, nor assign this lease, without the
consent in writing of Railway, this lease being executed by Railway upon the credit and reputation
of Lessee. Acceptance by Railway of rental from a third party shall not be considered as an
assignment.
5. Not to take any action or allow any action to be taken by third parties which will interfere
with or disparage Kailway's title to the leased property.
6. Not to permit the use of the leased property in any manner that will obstruct or interfere
with the operation of the Railway, or use of its property.
Page 3
7. Not to make or suffer any waste or any unlawful, improper, or offensive use of the leased
property or premises, or any use disapproved by Railway.
8. To the extent allowed by law, and subject to the limitations of Florida State Statutes
768.28, to indemnify, save and hold harmless Railway, its agents, servants and employees from and
against all loss, claims, costs charges, expense, suits, damage and judgments, which they may suffer,
sustain or in anywise be subjected to, or for which it may be held liable on account of the death,
personal injuries, damage or loss to any person or persons, including employees, agents and officers
of Railway and of Lessee, directly or indirectly arising out of or on account of the leasing to or use
of the property by Lessee; whether due or claimed to be due by the joint negligence of Railway, its
employees, agents or servants, or otherwise.
9. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28, to
indemnify, save and hold harmless Railway, its agents, servants and employees from and against all
loss, claims, costs, charges, expense, suits, damage and judgments, which they may suffer, sustain or
in anywise be subjected to, or for which it may be held liable on account of any loss or damage caused
in any manner to any of Lessee's buildings, structures, works and any personal property whatsoever
of Lessee, situated, placed, kept or stored on, in or near the property or premises hereby leased, as
well as on account of loss or damage to any personal property whatsoever, not owned by Lessee,
whether owned by Railway or by others, arising directly or indirectly out of or on account of the
leasing to or use by Lessee of the property hereby leased; whether due or claimed to be due by the
joint negligence of Railway, its employees, agents or servants or otherwise.
10. To the extent allowed by law, and subject to the limitations of Florida Statutes 768.28,
to indemnify Railway for all loss, claims, damage, costs and expenses, including attorneys' fees and
environmental cleanup costs arising fi'om Lessee's presence upon or use of the leased premises which
causes the premises to become contaminated by toxic or hazardous substances or wastes above levels
which exceed the allowable levels as set forth in local, state or federal laws and regulations. Railway
shall have the right, at reasonable times during the term of this Lease, upon prior notice to Lessee and
accompanied by a representative of Lessee (except in cases of emergency) to enter the leased
property, including any building or structure that may at any time be on the leased property, for the
purpose of examining and inspecting the condition of the leased property and to ensure Lessee's
compliance with the terms and conditions of this Lease.
11. To be responsible for and pay Railway the actual cost and expense Railway may incur in
paying for, repairing or replacing any engines, cars, rail material, cross-ties, equipment, tools,
machinery, freight or other property whatsoever, either owned or in possession of Railway, lost or
damaged by any default by Lessee hereunder, or negligence, affirmative act, or omission of Lessee.
12. To perform, at the sole expense of Lessee, ail work required in the preparation of the
property or premises hereby leased for occupancy by Lessee, in the absence of any special provision
herein contained to the contrary; and Lessee does hereby accept the leased property or premises as
now being in fit and tenantable condition for all purposes of Lessee.
Page 4
13. To pay, within thirty (30) days a_~er presentation unto Lessee by Railway of bills for the
same, all special assessments, ad valorem taxes, and any other taxes of whatsoever kind or nature
levied by the United States of America, State of Florida, any county, municipality or special taxing
district organized and existing under the laws of the State of Florida, upon any of the property or
premises herein leased. Ail 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.
14. To pay in the same manner as provided in Paragraph 13 hereof, the amount of any
necessary documentary stamp taxes required to be affixed to this lease under the laws of the United
States of America, the State of Florida, or both.
15. To pay, either directly or upon bills presented unto Lessee by Railway within thirty (30)
days after presentation of the same, all bills for electricity for lighting or power, gas, water, telephone
and telegraph services, or the proportionate part of the same used by Lessee upon or in the leased
property or premises.
16. That it will indemnify, save and hold harmless Railway from any loss, claim or damage
which Lessee may sustain arising directly or indirectly by reason of either existing or future zoning
or other regulations promulgated by any governmental agency which may adversely affect use by
Lessee of the lands hereinabove described, and Lessee shall assume all responsibility for procuring
or complying with any ordinance, resolution, order, permit, consent or other such regulation,
promulgated by any governmental agency whatsoever, for building or otherwise, required for the use
of the premises hereinabove described or for the construction of any facilities upon such premises.
17. That it shall not permit others to use the whole or any part of the leased property or
premises, except under and in compliance with the terms and conditions of this lease, and Lessee shall
hold Railway harmless as to any such use.
18. That none of the provisions of Paragraph "A" hereof shall be construed as any waiver by
Railway of any landlord's lien or liens of Railway upon any personal property, buildings or structures
of Lessee, for any rental due or to become due hereunder unto Railway, and Lessee shall not remove
any such structures, buildings or personal property from the hereinabove described premises, unless
and until all rentals and any other sum of money herein specified to be paid the Railway shall have
been fully paid unto Railway.
19. That Lessee shall remove any buildings, structures, works or personal property upon the
leased property or premises, including any such items placed upon the leased property or premises
subsequent to the date of this lease on or before any termination date of this lease, upon request from
the Railway to do so, and in default thereof; such property shall become the property of the Railway.
PROVIDED, HOWEVER, Railway may, at its option cause removal of the same from the hereby
Page 5
leased property or premises and/or storage thereof, and storage of any of Lessee's property and
property of others, placed by or with Lessee's permission or sufferance on the hereby leased property
or premises. The reasonable cost or expense of removal and/or storage of any buildings, structures,
works or personal property shall be paid by Lessee unto Railway forthwith upon demand for same.
20. That is waives and relinquishes any legal rights and monetary claims which it might have
for full compensation, or damages of any sort, including but not limited to special damages, severance
damages, removal costs or loss of business profits resulting from its loss of occupancy of the.leased
property specified in this agreement, or adjacent properties owned or leased by it, when any or all of
such properties are taken by eminent domain proceedings or sold under the threat thereof. That this
waiver and relinquishment applies whether (1) this lease is in existence on the date of taking or sale;
or (2) has been terminated prior thereto.
21. That it is expressly agreed by and between the parties hereto that any obligations of the
Lessee under the terms of this agreement which are not paid within thirty (30) days of presentation
of bills for same by Railway shall bear interest at the rate of twelve per cent (12%) per annum
compounded annually from the date of presentation of the bill until same shall be paid. It is further
expressly agreed that in the event Railway shall institute and prevail in any action or suit for the
enforcement of any of its rights under the provisions of this agreement, Lessee will pay to Railway
a reasonable attorney's fee on account thereof. Also in the event of litigation, the parties agree that
the laws of the State of Florida will apply. In an action to enforce any of the provisions of this
agreement, the parties hereto specifically agree that venue shall lie in St. Johns County, Florida.
22. That its facilities and operations on the herein leased area shall conform to all applicable
regulations and ordinances of any governmental agency having jurisdiction thereof.
23. That, at its expense, it will install and maintain facilities to prevent accumulation of
surface water, industrial liquids, solid waste matter and sanitary waste resulting from Lessee's
operations within the herein leased area. Such facilities to be approved by the Railway and any other
governmental agency having jurisdiction thereof.
24. Should any portion of the property described in this lease be used for the loading,
unloading or storage of hazardous materials, the Lessee shall (1) be solely responsible for ascertaining
that local, state and federal laws, ordinances and regulations do not prohibit the loading, unloading
or storage of hazardous materials on the leased property and (2) be solely responsible as between the
Railway and the Lessee, for complying with all of the foregoing laws, ordinances and regulations
which affect or regulate the loading, unloading or storage operations of hazardous materials on this
leased property.
Page 6
25. It is understood between the parties hereto that Railway reserves unto itself, its
successors, permittees, licensees, or other persons, the fight to construct and maintain other facilities,
including but not limited to, pipelines and/or communication cables, over and across the Railway's
affected herein leased property, and further, that Lessee shall take no measures to interfere with the
construction or maintenance of said facilities and shall at all times allow ingress and egress to the
herein leased property by said successors, permittees, licensees or other persons.
26. Lessee will do no grading on said leased ground space that will in any manner interfere
with the Railway's roadbed or other facilities.
27. Lessee is specifically notified that its personnel may be working in an area containing
buried active fiber-optic transmission cables as well as other cables and other facilities. Great care
will be taken by the Lessee to ensure that no damage is done to those cables and facilities. However,
if a cable or other facility is damaged or cut, Lessee agrees to indemnify Railway for any monetary
damages which may result.
28. Lessee agrees that no plants, shrubbery, 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 or other vegetation having a height of more than two feet (2') will be placed within two
hundred fifty feet (250') of any at grade street crossing, and if such vegetation exceeds two feet (2')
in height, the Railway may trim such vegetation to a two foot (2') height at Lessee's expense; that said
plants, shrubbery or other vegetation shall be trimmed by the Lessee so as to maintain a distance from
the centerline of the nearest track of twenty-five feet (25') and if such vegetation is closer than
twenty-five feet (25') from the centefline of the nearest track, the Railway may trim or remove such
vegetation so that no vegetation is within twenty-five feet (25') 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 hereofi Also, no plants, shrubbery or other vegetation of a
hazardous nature that might produce injury to any person coming in contact with said plants,
shrubbery or other vegetation will be placed upon said property of Railway by the Lessee. The
placement of any wells by the Lessee on the property of the Railway is strictly prohibited.
29. Lessee recognizes ownership of said property by the Railway and Lessee has no intention
of setting up any claim of ownership to the herein leased properties.
30. Lessee shall, at its sole cost and expense, install, maintain, and/or replace such barricades
and bumping blocks, as required by the Railway, to prevent automobiles from being parked or rolling
beyond the space hereby leased. In the event Lessee does not maintain, and/or replace said barricades
or bumping blocks to prevent automobiles from being parked or rolling beyond the space hereby
leased within thirty (30) days after notification by Railway, then, in that event, this lease agreement
shall be canceled and Lessee shall immediately vacate the property.
31. This agreement cancels and supersedes that certain Lease Agreement by and between the
parties hereto, dated January 9, 1991, covering the hereinabove described property.
Page 7
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly
executed under the seal.
Signed, sealed and delivered FLORIDA EAST COAST RAILWAY
in the presence of: COMPANY, a Florida Corporation
By: (SEAL)
C. F. Zellers, Jr., President
Attest:
Witnesses as to Kailway Mary C. Mueller, Assistant Secretary
Date of Execution:
CITY OF DELRAY BEACH
a Municipal Corporation of the State of Florida
.,,. ,,..By: (SEAL)
Witness as to Lessee Mayor
~'Print Name). ,.~-'Phnt Name).
.,~ttest:
~Witness as to Lessee City Clerk
/(Print Name). .A~Print Name)
.,,/Date of Execution:
Approved as to Form:
Page 8