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HomeMy WebLinkAboutR2025-17 Amended and Restated Revocable License and Indeminification Agreement with Benjamin SchoolRESOLUTION 2025-17 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA APPROVING AN AMENDED AND RESTATED REVOCABLE LICENSE AND INDEMNIFICATION AGREEMENT WITH THE BENJAMIN PRIVATE SCHOOL, INC. FOR PARKING WITHIN THE MCLAREN ROAD RIGHT-OF-WAY AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT; PROVIDING FOR CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, through the adoption of Resolution No. 2013-42 on August 22, 2013, the Village Council approved a Revocable License and Indemnification Agreement with The Benjamin School for faculty parking within the McLaren Road right-of-way; and WHEREAS, through the adoption of Ordinance No. 2025-08, the Village Council approved a reconfiguration of the parking in the right-of-way and required the School to enter into an Amended Revocable License and Indemnification Agreement with the Village to reflect this change; and WHEREAS, the Village Council determines that the approval of an Amended and Restate License and Indemnification Agreement with The Benjamin School is in the best interests of the Village and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA as follows: Section 1. The foregoing recitals are ratified as true and incorporated herein. Section 2. The Village Council of the Village of North Palm Beach, Florida, hereby approves an Amended and Restated Revocable Indemnification and License Agreement with The Benjamin Private School, Inc., a copy of which is attached hereto and incorporated herein, and authorizes the Mayor and Village Clerk to execute the Agreement on behalf of the Village. Section 3. All resolutions or parts of resolutions in conflict with this Resolution are hereby repealed to the extent of such conflict. Section 4. This Resolution shall take effect immediately upon adoption. PTED THIS 8TH DAY OF MAY, 2025. VILLAGE CLERK AMENDED AND RESTATED REVOCABLE LICENSE AND INDEMNIFICATION AGREEMENT This Amended and Restated Revocable License and Indemnification Agreement ("Agreement"), is made and entered into this aiun day of V , 2025, by and between the VILLAGE OF NORTH PALM BEACH, a municipal corporation organized and existing under the laws of the State of Florida, having its principal place of business at 501 U.S. Highway One, North Palm Beach, FL 33408 ("Village") and THE BENJAMIN PRIVATE SCHOOL, INC., a private school corporation, having its place of business at 11000 Ellison Wilson Road, North Palm Beach, FL 33408 ("School"). WITNESSETH: WHEREAS, on August 22, 2013, the Village and the School executed a Revocable License and Indemnification Agreement whereby the Village granted the School a license to utilize a portion of the McLaren Road right-of-way for faculty parking pursuant to Ordinance No. 2013-06 ("PUD Ordinance") approving The Benjamin School Planned Unit Development ("PUD"); and WHEREAS, at the request of the School, the Village recently approved an amendment to the PUD and the approved site plan through the adoption of Ordinance No. 2025-08 ("PUD Amendment Ordinance"), thereby approving a reconfiguration of the formerly licensed area; and WHEREAS, Section 5.D of the PUD Amendment Ordinance requires the School to enter into an amended Revocable License and Indemnification Agreement to reflect the revised parking configuration within the McLaren Road right-of-way; and WHEREAS, the Village agrees to allow the School to utilize and construct the revised parking configuration within the McClaren Road right-of-way pursuant to the terms and conditions of this Agreement. NOW THEREFORE, In consideration of the mutual covenants contained herein and other good and valuable consideration, Village and School agree as follows: 1. Recitals. The foregoing recitals are ratified as true and correct and are incorporated herein by reference. 2. Termination of Prior Agreement. Upon execution of this Agreement by both parties ("Effective Date"), the Revocable License and Indemnification Agreement dated August 22, 2013 is hereby repealed in its entirety and this Agreement substituted in its place. 3. License. The Village hereby grants and conveys to the School a non-exclusive license on, upon, and across that portion of the McClaren Road right-of-way depicted on the excerpt from the approved Site Plan attached hereto as Exhibit "A" and incorporated herein ("Licensed Area"). A. Uses. The Licensed Area shall be used for the sole purpose of providing parking for vehicles by the School's faculty. The grant of this license is subject to all covenants, conditions, restrictions, police powers, regulations and prior easements Page 1 of 6 affecting the Licensed Area, in addition to the terms and conditions of the PUD Amendment Ordinance. B. License Term. The School shall be entitled to have use of the Licensed Area pursuant to this Agreement beginning on the Effective Date, subject to the School's compliance with Section 4 below. This License Term shall continue until terminated pursuant to Section 7 below. C. Conditions. The School shall pave the Licensed Area and properly mark the pavement for parking spaces. The School shall be responsible for installation of signs indicating faculty parking usage only and shall be further responsible for the enforcement of this faculty parking restriction. The School shall, during the term of the License, maintain all improvements located in the Licensed Area and constructed by the School in good repair. 4. Compliance with Laws. The School, at its sole cost and expense, shall be responsible for and shall obtain, or cause to be obtained in advance of the commencement of the License Term, any and all licenses, permits or other approvals from any and all governmental agencies, federal, state or local, in connection with its use of the Licensed Area during the License Term, copies of which shall be delivered to the Village prior to the commencement of the License Term. The School warrants for itself and its officers, directors, employees, agents, suppliers, and subcontractors, at any tier, and their respective agents and employees, compliance with all applicable Federal, State, and local laws and regulations in connection with the School's use of the Licensed Area pursuant to this Agreement (including, but not limited to, compliance with the requirements of all permits required during the License Term). 5. Insurance. During the term of this Agreement, the School shall maintain the following insurance policies written by an insurance company authorized to do business in the State of Florida: A. Comprehensive General Liability Insurance with minimum coverage limits of $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage. B. Workers' Compensation Insurance in accordance with statutory requirements and Employer's Liability Insurance with limits of not less than $100,000 for each accident and not less than $500,000 in the aggregate. C. Comprehensive Automobile Liability Insurance for hired and non -hired vehicles with a combined single limit of no less than $500,000 per incident for bodily injury and property damage. D. The School shall provide the Village certificates of insurance which shall include a provision that policy cancellation, non -renewal or reduction in coverage shall not be effective until thirty (30) days' written notice has been given to the Village. The School shall include Village as an additional insured on the Comprehensive Page 2 of 6 Automobile Liability Insurance and Automobile Insurance policies required by this Agreement. 6. Indemnification. A. To the fullest extent permitted by applicable laws and regulations, the School shall indemnify and save harmless and defend the Village, its officials, agents, servants, and employees from and against any and all claims, liability, losses, and/or causes of action arising out of or in any way related to School's use of the Licensed Area pursuant to this Agreement, including, but not limited to, those caused by or arising out of any act, omission, negligence or default of the School and/or its contractors, agents, servants or employees. B. The School shall not be required to indemnify the Village, its officials, agents, servants, and employees when the occurrence results solely from the wrongful acts or omissions of the Village, its officials, agents, servants, and employees. C. Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Village or School, nor shall this Agreement be construed a waiver of sovereign immunity beyond the waiver expressly provided in § 768.28, Florida Statutes. 7. Termination. A. For a period of five years from the Effective Date, the Village may terminate the Agreement if the Village determines, in its sole discretion, that the Licensed Area is needed for the expansion of McLaren Road and funding is available to construct such improvements. In such event, Village shall provide written termination notice to School. B. At the expiration of five years from the Effective Date, either party may thereafter terminate this Agreement by providing written notice to the other party, provided, however, that termination by the Village shall require a vote of the Village Council. C. Notwithstanding the foregoing, Village may terminate the Agreement at any time based on the School's breach of the Agreement by failing to abide by the conditions set forth in Section 3.C. Such termination shall be effective upon written notice to the School and the School's failure to cure such breach within ten (10) days of receipt of written notice. D. In the event of termination of the Agreement for any reason, the School shall initiate an amendment to the PUD to remove parking within the Licensed Area from the site plan within sixty (60) days of the written notice of termination. Irrespective of the Village's formal adoption of an amendment to the PUD to reflect removal of parking within the Licensed Area, the School shall remove all parking and other improvements from the Licensed Area and restore the Licensed Area to the condition existing prior to August 22, 2013 (the Effective Date of the Page 3 of 6 prior Agreement) to the extent reasonably practicable within one hundred and eighty (180) days of the written notice of termination. 8. No Liens. The School hereby waives, and shall not permit to be filed or otherwise imposed, any type of lien on the Licensed Area or on any of the Village's property in connection with this Agreement. If any such lien is filed, the School shall cause such lien to be released and discharged within fifteen (15) calendar days, or provide the Village with a bond or other security which shall be in an amount and in a form and substance acceptable to the Village in its sole discretion. Each contract the School enters into with any subcontractor, must contain a provision to the same effect as the foregoing whereby such subcontractor waives any and all lien rights such subcontractor may now or at any time hereafter have or obtain against the Licensed Area or any of the Village's property in connection with this Agreement. Without further consideration, the School will, and shall cause its subcontractors to, provide additional waivers of lien from time to time upon request by the Village. 9. Assignment. School shall not assign this Agreement (or any of its rights, duties, or remedies under this Agreement) without the prior written consent of Village. 10. Entire Agreement. This Agreement, together with all exhibits and referenced documents, constitutes the entire agreement between the parties regarding the Licensed Area and supersedes all prior understandings and negotiations (whether written or oral), with the exception of the PUD Ordinance, as amended. All exhibits referenced in this Agreement are attached hereto and incorporated herein by reference. This Agreement can only be amended in writing signed by all parties. All obligations of the School in this Agreement providing for performance after termination shall survive termination; and all indemnities contained in the Agreement shall survive termination. The invalidity or unenforceability of any part of this Agreement shall not invalidate or affect the remainder, which shall continue to govern the relative rights and duties of the parties as though the invalid or unenforceable part were not a part hereof. 11. Addresses and Notices. Any notice provided in or permitted under this Agreement shall be made in writing and may be given or served by: (a) delivering the same in person to the party to be notified; (b) depositing the same in the mail, postage prepaid, registered or certified with return receipt requested, and addressed to the party to be notified at the address hereinbelow specified (if a post office box is specified, then any notice sent by mail must be sent to the post office box); (c) delivering the same to a street address (and not a post office box) specified herein on a prepaid basis via a nationally recognized courier service, such as FedEx or (d) sent by facsimile transmission followed by a confirmatory notice by one of the foregoing means. If notice is deposited in the mail, it will be deemed received on the date shown on the return receipt. If notice is sent by facsimile transmission, it will be deemed received upon the successful transmission of such notice provided that an original of such facsimile is also sent to the party to be notified by the means described in this Section. Notice given in any other manner shall be deemed received only if and when actually received by the party to be notified. For the purpose of notice, the address of each party hereunder shall be, until changed by written notice to each party hereto, as follows: Page 4 of 6 If to the Village: with a copy to: If to School: Village of North Palm Beach Attn: Chuck Huff, Village Manager 501 U.S. Highway One North Palm Beach, FL 44408 Telephone: (561) 841-3361 Facsimile: (561) 848-3344 Leonard G. Rubin, Esquire Torcivia, Donlon, Goddeau & Rubin, P.A. 701 Northpoint Parkway, Suite 209 West Palm Beach, Florida 33407 Telephone: (561) 686-8700 Facsimile: (561) 686-8764 The Benjamin School Attn: David C. Faus, Head of School 11000 Ellison Wilson Road North Palm Beach, FL 33408 Telephone: (561) 626-3747 Facsimile: (561) 691-9017 With a copy to: Jeremy Bowerman, Esq. (which shall not constitute Jeck Harris notice) 790 Juno Ocean Walk, Suite 600 Juno Beach, FL 33408 Telephone: (561) 746-1002 Facsimile: (561) 775-0270 12. Governing Law and Venue. The laws of the State of Florida shall govern this Agreement. All legal action necessary to enforce this Agreement will be held in Palm Beach County, Florida. The parties knowingly, voluntarily, and intentionally waiver any right they may have to trial by jury with respect to any litigation arising out of this Agreement. 13. Enforcement Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding. 14. Anti -Discrimination. The School warrants and represents that all of its employees, agents, and representatives are treated equally during employment without regard to race, color, religion, gender, age, national origin, sexual orientation, disability, or any other category protected by federal, state, or local law. Page 5 of 6 Page 6 of 6 15. Waiver. A waiver by either the Village or shall not be binding upon the waiving party of a written waiver, such a waiver shall not to any other or further breach. 16. Preparation. This Agreement shall not be the School of any breach of this Agreement unless such waiver is in writing. In the event affect the waiving party's rights with respect construed more strongly against either party regardless of which party was more responsible for its preparation. 17. Inspector General. The School is aware that the Inspector General of Palm Beach County has the authority to investigate and audit matters relating to the negotiation and performance of this Agreement, and in furtherance thereof, may demand and obtain records and testimony from the School and its subcontractors. The School understands and agrees that in addition to all other remedies and consequences provided by law, the failure of the School or its subcontractors to fully cooperate with the Inspector General when requested may be deemed by the Village to be a material breach of the Agreement justifying termination. IN WITNESS WHEREOF, the parties have executed this Amended and Restated License Agreement on the dates indicated below: VILLAGE: Village of North Palm Beach, a Florida municipal corporatio By: Deborah Sea , Mayor Date: Attest: 25 By: Jess} a} Green, Village Clerk Approved as to form and legal sufficiency: By: Village Attorney SCHOOL: The Benjamin Private School, Inc., a private school corporation nn By: 0 Printed Name: afie- Title: CR ./Cac Date: 514-2_ 5 Page 7 of 6 EXHIBIT A Licensed Area (Site Plan Excerpt) Licensed Area - J LLJ < " 2 z 2 z 0 ). 0 ci cc NJ c.) 3 u.. c E co .23 1 --7---/1 - T. ---CEF- ; - c p g co co .•2 N D) 0 3 ur a.. it caLL' crio LE I 1—mOEP To ":6 El To- 5 4 • ' &I a ID a. 2 .. , .., Ta'azc ▪ .- .., ,i1 'Fa 1z) 2 0 m \ c , CO o El a c a 0 0 ,, I CaCcii ▪ O. r.._ 1 ;. ...g., ..-...- 1 z • • • ----,1 ie ii 0 c' E E 40 0 . =, odoz IA t 0 :- 0 z 0 in b i1'. .X gi ''' lEa M re eee g ----.. 9,-4 (..1 • .• 1 Z :-.:' 8.1 14:-. 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