97-025 RESOLUTION NO. 97-25
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AVENTURA, FLORIDA, AUTHORIZING THE CITY
MANAGER ON BEHALF OF THE CITY TO EXECUTE AND
OTHERWISE ENTER INTO THE ATTACHED LEASE
AGREEMENT FOR PROPERTY TO BE USED AS A
LANDSCAPE BUFFER AND BEAUTIFICATION BY AND
BETWEEN THE CITY OF AVENTURA AND FLORIDA EAST
COAST RAILWAY COMPANY; AUTHORIZING THE CITY
MANAGER TO DO ALL THINGS NECESSARY TO CARRY
OUT THE AIMS OF THIS RESOLUTION; AND PROVIDING
FOR AN EFFECTIVE DATE.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF AVENTURA, FLORIDA, THAT:
Section 1. The City Manager is hereby authorized on behalf of the City of
Aventura to execute and otherwise enter into the Lease Agreement for property to be used
as a landscape buffer and beautification, by and between the City of Aventura and Florida
East Coast Railway Company, attached hereto and incorporated herein as specifically as if
set forth at length hereat.
Section 2. The City Manager is hereby authorized to do all things necessary and
expedient in order to effectuate the execution of the attached Agreement described in
Section 1 above, and to carry out the aims of this Resolution.
Section 3. This Resolution shall become effective immediately upon its adoption.
The foregoing Resolution was offered by Councilmember Rogers-Libert, who moved
its adoption. The motion was seconded by Councilmember Cohen, and upon being put to a
vote, the vote was as follows:
Resolution No. 97-25
Page 2
Councilmember Jay R. Beskin 7es
Councilmember Ken Cohen yes
Councilmember Harry Holzberg
Councilmember Jeffrey M. Perlow yes
Councilmember Patricia Rogers-Libert yes
Vice Mayor Arthur Berger yes
Mayor Arthur I. Snyder yes
PASSED AND ADOPTED this
18th day of March, 1997.
A
ATTEST:
TERESA M. SMITH, CMC
CITY CLERK -
APPROVED AS TO LEGAL SUFFICIENCY:
C~I~ATTO R ~EY ~ '!'
EMS/tms
THIS LEASE, is effective this ~ day of ~ A.D. 19 ~ 7 , by
end between FLORIDA EAST COAST RAILWAY COMPANY, hereinafter called "Railway" and
CITY OF AVENTURA, a Municipal Corporation of the State of Florida, whose address is
Government Center, 2999 N.E. 191 st Street, Suite 500, Aventura, Florida 33180, hereinafter called
WITNESSETH:
That in consideration of the covenents herein contained to be kept and performed, Railway
does hereby lease to said Lessee the following described property:
That portion of Railway's right of way lying a minimum of 25 feet east of Railway's
easterly most track between the south line of N.E 203rd Street (MP 352 + 372'±) and
the northerly end of Railway's bridge for the OIeta River (MP 353 + 4236'±).
All as shown on Railway's Drawing C-160, dated 12/29/96, Sheets 1 and 2,, attached hereto and
made a part hereof.
~-_~ / ~ File: 353-60
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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 hereinat~er provided.
LESSEE COVENANTS TO PAY RENTAL AS FOLLOWS:
An annual rental of $4,000.00, plus Florida Sales and Use Tax if applicable, payable in cash
upon the execution and delivery of this lease, and if renewed, the same amount in cash in advance for
each and every year thereafter until terminated. All rentals for initial and renewal terms are payable
in cash on the date specified, in advance, without oral or written demand. Lessee hereby expressly
waiving such demand.
LESSEE AND RAILWAY COVENANT AS FOLLOWS:
A. In the event of termination of this lease by Railway before the expiration of the initial or
any renewal terms, any rental paid in advance unearned shall be returned to Lessee, less any amounts
owing to Railway under this lease.
B. That none of the provisions hereof shall be waived or modified, except by Railway, or by
mutual agreement, in writing, and no alleged verbal or written inducement prior to execution nor
subsequent verbal waiver, or modification, shall be binding under any circumstances. Further, that
this lease constitutes the entire understanding of the parties and that neither the failure of the Railway
to enforce each and every provision, nor any course of conduct by the Railway shall be considered
as a waiver of these provisions.
C. Either party may, in its discretion, for any reason whatsoever, terminate this lease at any
time by the giving of notice to the other party as hereinafter provided. If this lease is for a term of
one or more years, then 30 days prior notice in writing of the intention of the party to terminate this
lease shall be given to the other party. If this lease is for any term less than one year, then 10 days
prior notice in writing of the intention of the party to terminate this lease shall be given to the other
par~; 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 fi~rnished 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 (I) 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
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for the time specified herein, subject always to the termination provisions and regardless of the length
of time that Lessee has occupied the leased property, or the construction by Lessee of any buildings,
structures, works, paving, barricades or personal property placed thereon.
E. That if any provision or provisions of this lease shall be held to be invalid, illegal or
unanfomeable, the validity, legality and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
F. That Lessee shall use the leased property only for:
Beautification
AND LESSEE COVENANTS WITH RAILWAY AS FOLLOWS:
1. To keep the leased proper~y and any buildings or other structure, no~v 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 ~ee and clear of any and all grass, weeds, brush and debris
of any kind, so as to prevent the same becoming dangerous, inflammable or objectionable. Railway
shall have no duty to inspect or maintain any of the leased property, buildings, or other structures,
if any, during the term of this lease.
2. To vacate, quit and deliver up the leased property on or before any termination date of this
lease in as good condition as it is now.
3. Not to erect or cause to be erected any building or other structure, or any addition to
existing buildings or structures on the leased property without first obtaining the approval in writing
by Railway of the location, material and construction of the same.
4. Not to sublet the leased property or any part thereof, nor assign this lease, without the
consent in writing of Railway, this lease being executed by Railway upon the credit and reputation
of Lessee. Acceptance by Railway of rental t?om 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 Rallway's title to the leased property.
6. Not to permit the use of the leased property in any manner that will obstruct or interfere
with the operation of the Railway, or use of its property.
7. Not to make or suffer any waste or any unlawful, improper, or offensive use of the leased
property or premises, or any use disapproved by Railway.
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8. To the extent allowed by law, and subject to the limitations of Florlda State Statutes
768.28, to indemnify, save and hold harmless Railway, its agents, servants and employees from and
against ail 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 Rffilway 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 ailowed by law, and subject to the limitations of Florida Statutes 768.28, to
indemnify, save and hold hamfless 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 Railxvay, 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
environmentai cleanup costs arising from Lessee's presence upon or use of the leased premises which
causes the premises to become contaminated by toxic or hazardous substances or wastes above levels
which exceed the ailowable levels as set forth in local, state or federal laws and regulations. Railway
shail 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.
I 1. To be responsible for and pay Railway the actual cost and expense Railway may incur in
paying for, repairing or replacing any engines, cars, rail material, cross-ties, equipment, tools,
machinery, freight or other property whatsoever, either owned or in possession of Railway, lost or
damaged by any default by Lessee hereunder, or negligence, affirmative act, or omission of Lessee.
12. To perform, at the sole expense of Lessee, all work required in the preparation of the
proper~y 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.
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13. To pay, within thirty (30) days after presentation unto Lessee by Railway of bills for the
same, all special assessments, ad valorem taxes, and any other taxes of whatsoever kind or nature
levied by the United States of America, State of Florida, any county, municipality or special taxing
district organized and existing under the laws of the State of Florida, upon any of the property or
premises here'm leased. All taxes and special assessments, payable on an annual basis, are to be pro-
rated by the parties hereto for the year during which this lease is made, as well as the year in which
the same may be terminated.
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, ail 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, stractures, 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 ~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 Rallway forthwith upon demand for same,
20. That is waives and relinquishes any legal fights and monetary claims which it might have
for fall 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
prope~y 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 farther
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 thereo£
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 her(tn leased area. Such facilities to be approved by the Railway and any other
governmental agency having jurisdiction thereofi
24 Should any portion of the property described in this lease be used for the loading,
unloading or storage ofliazardous 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.
P~e6
25. It is understood between the parties hereto that Railway reserves unto itself, its
successors, permktees, licensees, or other persons, the right to constract 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 meas, res 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,
ifa cable or other facility is damaged or cut, Lessee agrees to indemaifi? Railway for any monetary
damages which may result.
28. 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) fec~ in height, the Railway may trhn 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 centefline of the nearest track, the Railway may trim or
remove such vegetation so that no vegetation is within twenty-five (25) feet of the centefline 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 hereo£ Also, no plants, shrubbery, trees
or other vegetation ora hazardous nature that might produce injury to any person coming in contact
with said plants, shrubbery, trees or other vegetation will be placed upon said property of Railway
by the Lessee. The placement of any wells by the Lessee on the property of the Railway is strictly
prohibited.
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 ks 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.
Page 7
31. The property hereinabove described is subject to that certain Blanket License Agreement
by and between Railway and AK Media Group, Inc. d/b/a AK Media/Florida dated January 1, 1991,
covering signboards located on the leased property. Lessee is advised that AK Media Group, Inc.
d/b/a AK Media/Florida's right of access to the signboards is superior to that of Lessee and, further,
that Lessee shall immediately move or relocate any facilities which it may have in the vicinity of the
signboards at the request of,, and at no cost to AK Media Group, Inc. d/b/a AK Media/Florida, such
costs to be borne solely by Lessee.
32. To the extent allowed by law, and subject to the limitations of Florida State Statute
768.28, to indenmi~, save and hold harmless Railway from any loss, claim or damage to plants,
shrubbery, trees or other shrubbery or other vegetation arising from Railway's use of herbicides in
Railway's weed control program.
33. Lessee represents that it has acquired all leasehold interests of prior Lessee, Turnberry
Associates, under Lease Agreement dated August 1, 1990, between Railway and said prior Lessee
covering a portion of the hereinabove described property. Said prior Lease Agreement is cancelled
and superseded by this document.
~~/~~~/~~~/~
Page 8
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
~Vitnesses as t~l~ilway Mary C. l~ueller, ~s~Aataht Secretary
Date of Execution: </- / - ~"~
{./rl'Y OF AVENTURA
a Mu~~f Flolida
~.~c~ ~°~/~~-- ~By: ( ._ ~ /' (SE~,
Witness as to Lessee Er~c
~tNme) Lt'6~ ~. /Y~5~[ ~tN~tric M. Soroka
~ltness~to~ss~ T~resa M. Smith, City Clerk
~t Nme) ~t Name) Teresa M. Smith
o ution:
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