1992-51 Lease Agreement with Benjamin School for North Substation PropertyRESOLUTION N0. 51-92
A RESOLUTION OF THE VILLAGE OF NORTH
PALM BEACH, FLORIDA, AUTHORIZING AND
DIRECTING THE MAYOR AND VILLAGE
CLERK TO ENTER INTO A LEASE
AGREEMENT OF REAL PROPERTY WITH THE
BENJAMIN PRIVATE SCHOOL, INC.,
ATTACHED AS EXHIBIT "A", WHICH REAL
PROPERTY IS TO BE UTILIZED BY THE
VILLAGE FOR POLICE, FIRE AND
EMERGENCY MEDICAL SERVICE PURPOSES;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the Village of North Palm Beach is desirous of
entering into a lease agreement of real property with the Benjamin
Private School, Inc. with the real property to be utilized by the
Village exclusively for police, fire and emergency medical service
purposes.
' BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM
BEACH, FLORIDA:
Section 1. The Village Council of the Village of North
Palm Beach does hereby approve the lease agreement of real property
with the Benjamin Private School, Inc. attached as Exhibit "A",
which real property is to be utilized by the Village exclusively
for police, fire and emergency medical service purposes.
Section 2. The Mayor and Village Clerk are hereby
authorized and directed to execute the lease agreement with the
Benjamin Private School, Inc. set forth in Exhibit "A" for and on
behalf of the Village of North Palm Beach.
Section 3. This Resolution shall take effect immediately
' upon its adoption.
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1
,~
PASSED AND ADOPTED THIS 10th DAY OF December
1992.
(Village Seal) ,ujLyn,~,,,
MAY R
ATTES '
VILLAGE CLERK
LEASE AGREEMENT
THIS AGREEMENT is entered into this lOt day of December ,
1992, by and between THE BENJAMIN PRIVATE SCHOOL, INC., a Florida
corporation, (hereinafter called "Lessor"), and the VILLAGE OF
NORTH PALM BEACH, a Florida municipal corporation (hereinafter
called "Lessee").
Section 1. DEMISE. In consideration of the covenants, terms,
conditions and agreements hereinafter set forth, Lessor hereby
leases and demises to Lessee, and Lessee hereby hires and takes
from Lessor, the real property more fully described on Exhibit "A"
attached hereto and made a part hereof (hereinafter the
"Property"), or such other Property as shall meet the requirements
of Section 1.1, SUBJECT HOWEVER, TO THE FOLLOWING:
A. Any state of facts which an accurate survey may
show;
B. Easements, covenants and restrictions of record, if
any;
C. Present and future zoning laws, ordinances,
resolutions and regulations of the county or state in which the
Property ie located and all present and future ordinances, laws,
regulations and orders of all boards, bureaus, commissions and
bodies of any municipal, county, state or federal sovereigns now or
hereafter having or acquiring jurisdiction over or affecting the
Property and the use and improvement thereof;
D. violations of law, ordinances, orders or
requirements, whether or not recorded or noted, of any federal,
state or municipal department or authority having juriediction
against or affecting the Property as the same may exist or the date
of the commencement of the term of this Lease; and
E. Condition and state of repair of the Property as the
same may be on the date of commencement of the term of this Lease.
This Lease is granted and accepted upon the foregoing and upon
the following covenants and conditions, and subject to the
following restrictions, to all and every one of which the parties
consent; and each of the parties hereby expressly covenants and
agrees to keep, perform and observe all of the terms, covenants and
conditions herein contained on its part to be kept, performed and
observed. _.
1.1 SUBSTITUTED PARCEL. In the event Lessor acquires
additional property which is adjacent to Carolinda Drive, Leasor
may make available to Lessee another parcel in substitution for the
property described in Exhibit A, subject, however, to the
following:
A. Said substitution parcel shall be of equal size as
the property described in Exhibit A;
B. Said substituted parcel shall be in reasonable
proximity to the property described in Exhibit A; and
C. Said property shall have direct access to U.S. 1.
Said substitution must occur within six (6) months following
execution of this Agreement or prior to commencement of site
preparation by the Village for its Public Safety Substation,
whichever is later.
Section 2. TERM OF LEASE. The term of this Lease shall be
for a period of ten (10) years commer~ing on he 1 t day of
January, 1993, and ending on the ALT day of ~2C , 200.
Either party may terminate the Lease upon three hundred .and sixty
five (365) days' written notice to the other party.
Section 3. RENT. Lessee shall pay to Lessor as rent for the
use and possession of the Property, in such currency of the United
States of America as at the time of payment shall be legal tender
for the payment of public and private debts, the total sum of
$10.00 per year, payable in advance. All payments shall be made to
Lessor without notice, demand and without abatement, deduction or
setoff, at 11000 Ellison Wilson Road, North Palm Beach, Florida
33408, or at such other place and to such other person as Lessor
may from time to time designate in writing.
Section 4. USE OF PROPERTY. The Property shall be used and
occupied by Lessee exclusively for police, fire and Emergency
Medical Services purposes and for no other purpose or uses
whatsoever without the prior written consent of Lessor, which
Lessor may grant or withhold in Lessor's sole discretion. Lessee
covenants and agrees that the permitted use of the Property has
been specifically bargained for and constitutes a separate and
substantial consideration and inducement to Lessor for entering
into this Lease with Lessee.
Lessee shall have the right to erect and construct apparatus
or whatever other non-permanent improvements that it may deem
necessary or advantageous to the facilitation of the aforesaid
purposes, subject to prior approval of Lessor of~such improvements,
which approval shall not be unreasonably withheld.
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It is understood and agreed that the Lessee shall undertake
and bear all construction and maintenance costs, including
landscaping, for any equipment that may be erected or utilized in
the furtherance of the aforesaid purposes.
Upon termination of this Lease Agreement the Lessee shall, at
Lessor's option, remove any improvement which may then be located
on the leased premises and convert the materials thereof to the use
of the Lessee. Title to all equipment, furnishings, fixtures or
other apparatus shall also remain in the name of the Lessee upon
the expiration of this Agreement. It is expressly understood that
in the event of removal of Lessee added property, the premises
shall be left in as good a condition as they were upon the
assumption of tenancy hereunder.
All existing equipment owned by Lessor removed from the
Property shall be either returned to Lessor at a time and location
to be determined by Lessor, or disposed-of in conformance with
applicable laws, rules and statutes. Lessor shall retain sole
discretion in determining which course of action shall be taken.
Section 5. MAINTENANCE. Lessee shall, at Lessee's sole cost
and expense, keep and maintain the Property and all improvements
thereon (including, but not limited to, recreational facilities and
landscaping) in good order and repair. Lessor has no repair
obligation whatsoever, however, and Lessee may terminate the Lease
whenever it determines not to make a major repair. Lessee shall,
at Lessee's sole cost and expense, use diligence to put, keep and
maintain all portions of the Property and the swales, private
roadways and private canals on and adjoining the same in a clean
and orderly condition, free of rubbish, trash, debris, unlawful
obstructions an free of weeds, brush and undergrowth.
Lessor shall not be required to furnish to Lessee any
facilities or services of any kind whatsoever during the term
hereof, such as, but not limited to, water, gas, electricity, light
and power. Lessor shall in no event be required to make any
alterations, rebuildings, replacements, changes, additions,
improvements or repairs during the term of this Lease.
Section 6. REPRESENTATIONS. Lessee covenants and warrants
that Lessee has inspected the Property and ie fully familiar with
its physical condition, and Lessee takes the Property in its "as
is" condition. Neither Lessor nor Lessor's agents have made any
representations or warranties about or in connection with the
Property, its condition, location, drainage or the use to which the
Property can be put. Neither Lessor nor Lessor's agents have made
any representations or warranties regarding any buildings,
improvements, fixtures or equipment (if any) on or appurtenant to
the Property. Neither Lessor nor Lessor's agents shall be liable
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to Lessee, Lessee's agents, servants, employees or contractors for
any latent or patent defects on the Property or any buildings or
improvements thereon.
Section 7. COMPLIANCE WITH LAW. Throughout the term of this
Lease, Lessee, at Lessee's sole cost and expense, shall promptly
comply with all present and future laws, ordinances, orders, rules,
regulations and requirements of all federal, state and municipal
governments, departments, commissions, boards and officers,
foreseen or unforeseen, ordinary as well ae extraordinary, which
may be applicable to or affect the Property and the water
management of the Property (including, but not limited to, swales,
canals, culverts and drainage structures adjoining or serving the
Property) and the use or manner of use of the Property by Lessee or
any occupants thereof, whether or not such law, ordinance, order,
rule, regulation or requirement shall necessitate changes or
improvements or interfere with the use and enjoyment of the
Property, and whether or not such compliance is required by reason
of any condition, event or circumstance existing prior to or after
the commencement of the term of this Lease.
Lessee shall likewise observe and comply with the requirements
of all policies of public liability, fire and all other policies of
insurance required to be carried by Lessee at .any time with respect
to the Property, whether or not such observance or compliance is
required by reason of any condition, event or circumstance existing
prior to or after the commencement of the term of this Lease, and
Lessee shall, in the event of any violation or any attempted
violation of the provisions of this section by any permitted
subtenant, take steps, immediately upon knowledge of such violation
or attempted violation, to remedy or prevent the same as the case
may be.
7.1 LESSEE'S RIGHT TO CONTEST COMPLIANCE. Lessee shall have
the right to contest in good faith, at Lessee's sole expense and
liability, the applicability of any laws and the right not to
comply with same, provided that (a) Lessee promptly notifies Lessor
of its intent to so contest and, from time to time, of the progress
of such contest, and (b) that Lessee's non-compliance during
Lessee's contest shall not cause Lessor to be subject to any civil
or criminal liability nor cause Lessor's interest in the Property
or any part thereof to be in imminent danger of being foreclosed,
forfeited, sold or lost, and (c) that Lessee's non-compliance
during Lessee's contest shall not cause Lessee to be subject to any
criminal liability, and (d) Lessee deposits with Lessor (1) an
amount reasonably determined to be sufficient by Lessor to comply
with same or (2) a bond by a surety company approved by Lessor in
an amount reasonably determined to be sufficient by Lessor to
provide for the full cost of compliance with same in the event that
Lessee shall be unsuccessful, and (e) such contest shall be without
expense or liability to Lessor. Lessee shall indemnify, defend and
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hold harmless Lessor from and against all costs, expenses, claims,
losses, liabilities and damages by reason of or arising or
resulting from such contest or proceeding or Lessee's failure to
forthwith observe or comply with any such laws.
Section 8. NUISANCES. Lessee shall not use or allow the
Property to be used for any unlawful purpose or in violation of any
certificate of occupancy or permit covering or affecting the use of
the Property or any part thereof or which may constitute a
nuisance, public or private, or which may make void or voidable any
insurance then in force with respect thereto.
Lessee shall not suffer or permit the Property or any portion
thereof to be used by the public, ae such, without restriction or
in such manner ae might reasonably tend to impair Lessor's title to
the Property or any portion thereof, or in such manner as might
reasonably make possible a claim or claims of adverse usage,
adverse possession or prescription by the public, as such, or of
implied dedication of the Property or any portion thereof. Lessee
hereby acknowledges that Lessor does not hereby consent, expressly
or by implication, to the .unrestricted use or possession of the
whole or any portion of the Property by the Public.
Section 9. WASTE. Lessee shall not commit or permit the
commission by others of any waste or damage to the Property or any
part thereof. Lessee shall have no right to take or remove any
water, shell, top soil, dirt, sand, timber or minerals from the
Property. Lessee shall not cut live trees or the Property, for any
reason, without prior written consent of Lessor.
Section 10. IMPROVEMENTS TO PROPERTY. Except as provided in
Section 4, Lessee shall make no alterations, additions or
improvements to the Property, without the prior written consent of
Lessor, which consent shall not be unreasonably withheld. All
additions or improvements which may be made by Lessee shall, at the
expiration of the term of this Lease or upon the earlier
termination hereof, be removed by Lessee, at Lessee's sole cost and
expense.
Section 11. RELEASE OF LIABILITY. All persons and property of
any kind at any time on or about the Property shall be at the sole
risk of Lessee, and neither Lessor nor Lessor's agents shall have
any responsibility for and will not be liable for any damage to or
destruction of any property or for personal injury to anyone or
about the Property by any cause whatsoever. It is understood and
agreed that nothing under the terms of this Lease or any usage of
the Property will render Lessor or Lessor's agents liable for
injury to any persons or for damage to property of Lessee, Lessee's
employees, agents, servants, contractors or invitees, and Lessee
hereby releases Lessor and Lessor's agents from any and all
liability in connection therewith. Lessee agrees to use and occupy
the Property at Lessee's own risk, and hereby (for Lessee and all
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persons claiming under, by or through Lessee) releases Lessor,
Lessor's agents, servants, contractors and employees from all
claims and demands of every kind resulting from any accident,
damage or injury occurring on or about the Property. Lessee shall
not be responsible for clean-up, removal of hazardous substances or
waste or remedial work therefor, unless such matters occur during
the term of the Lease and not ae a consequence of any activity of
Lessor.
Section 12. UTILITIES/TAXES. Lessee shall pay (a) all charges
of any sort for water, gas, electricity and other utilities
furnished to or used on the Property and (b) all taxes and all
other fees or charges accruing or due with respeot to any activity
or business conducted by Lessee on the Property, including all
license and permit fees, including real property taxes.
Section 13. LESSOR'S RIGHT OF ENTRY. Lessee shall permit
Lessor and Lessor's authorized representatives to enter the
Property at all reasonable times for the purpose of (a) inspection
and surveying the same, (b) conducting soil tests and analysis, (c)
making any necessary repair thereto and (d performing any work
therein that may be necessary by reason of Lessee's failure to make
any repairs or perform any such work or to commence the same for
ten (10) days after written notice from Lessor (or without notice
in case of emergency). Lessor. shall not be liable for
inconvenience, annoyance or other damage to Lessee by reason of
making such repairs or the performance of any such work, or on
account of bringing materials, tools, supplies and equipment onto
the Property during the course thereof and the obligations of
Lessee under this Lease shall not be affected thereby. Nothing
herein shall imply any duty upon the part of Lessor to do any such
work; and performance thereof by Lessor shall not constitute a
waiver of Lessee's default in failing to perform the same.
Lessor shall have the right to enter the Property at all
reasonable times for the purpose of showing the same to prospective
purchasers and tenants of the Property.
Section 14. INSURANCE. Lessee covenants and agrees to
maintain in full force throughout the term of this Lease, at
Lessee's own cost and expense, one or more policies of
comprehensive general public liability, automobile and vehicle
liability and property damage insurance insuring Lessee and lessor
(and such other person or persons designated by Lessor) against
claims for personal injury and death and property damage occurring
on or about the Property and on and about adjoining private
roadways and private drainage canals and structures. Each such
policy shall be subject to the advance approval of Lessor as to
form and insurance company and shall contain; a, provision that it
cannot be canceled or amended, insofar as it relates to the
Property, without at least thirty (30) days' prior written notice
to Lessor.
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Lessee covenants and agrees to maintain in full force
throughout the term of this Lease, at Lessee's own cost and
expense, workers' compensation insurance for the protection of
Lessee's employees at any time on the Property and all insurance
required by ordinance, law or governmental regulation.
Lessee covenants and agrees to maintain in full force
throughout the term of this Lease, at Lessee's own cost and
expense, insurance coverage for the protection of the recreational
or other facilities or improvements Lessee 'proposes for the
Property.
Upon the execution of this Lease, and thereafter not less than
fifteen (15) days prior to the expiration dates of existing
policies theretofore furnished pursuant to this section, duplicate
originals of the policies or certificates of the insurers, bearing
notations evidencing the payments of premiums or accompanied by
other evidence satisfactory to lessor of such payment, shall be
delivered to Lessor by Lessee. In the event of Lessee's failure,
in whole or in part, at any time during the term hereof to obtain
insurance required to be carried by Lessee under the provisions
hereof or to provide such evidence thereof in timely fashion,
Lessor shall have the right (but shall not be obligated) to procure
such insurance and Lessee shall pay to Lessor the costa and
expenses thereof.
The Village shall maintain minimum insurance coverage of
$100,000.00 per individual claim $200,000.00 aggregate for claims
arising out of or relating to this activity for personal injury and
death and for property damage. Said policy(ies) shall list both
the Village and The Benjamin School as named insured.
Section 15. ASSIGNMENT OF SUBLETTING. Lessee shall not
assign this Lease, nor sublet the Property or any part thereof
without the prior written consent of Lessor, which Lessor may grant
or withhold in Lessor's sole discretion. Lessee covenants and
agrees that lessor's prohibition of assignment and subletting of
the Property have been specifically bargained for and constitute a
separate and substantial consideration and inducement to Lessor for
entering into this Lease.
Further, Lessee may not mortgage this Lease in whole or in
part.
Section 16. SUBORDINATION. This Lease,. at the option of
Lessor, shall be subject and subordinate to all ground or
underlying leases or subleases, including, without limitation, sale
and leaseback or lease leaseback leases to which Lessor is or may
become a party as tenant or subtenant thereunder and to all
mortgages, deeds of trust or conveyances for security purposes,
which may now or hereafter affect the real property of which the
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Property forms a part, and to all renewals, replacements,
modifications, consolidations and extensions of any thereof.
Lessee, in confirmation of the subordinatign provided for in
this section, shall execute and deliver promptly any certificate or
instrument which Lessor may at any time require, in connection
herewith. Lessee hereby irrevocably constitutes and appoints
Lessor as attorney-in-fact for Lessee in the name of Lessee, or in
Lessor's name, as such attorney-in-fact, to' execute any such
certificate(s) or instrument(s) for an on behalf of Lessee.
As to holder (or successor in interest) of any mortgage and/or
deed of trust and/or ground or underlying lease, Lessee shall
attorn to and recognize as Lessee's Lessor hereunder such holder or
successor. Upon such attornment, this Lease shall continue in full
force and effect as a direct lease between Lessee and such holder
or successor, except that .such holder or successor shall not be (i)
liable for any previous act or omission by Lessor under this Lease,
(ii) subject to any offset or rent which shall thereunto have
accrued to Lessee against Lessor, (iii) bound by any previous
modification of this Lease not expressly provided for herein, (iv)
bound by any previous prepayment of rent for a period greater than
sixty (60) days unless such modification or prepayment shall have
been expressly approved in writing by such holder or successor.
Section 17. MECHANIC'S LIENS. Lessee shall have no power to
and shall not subject the Property or Lessor's interest in the
Property to any mechanic's, laborer's, materialman's or other
liens. If any mechanic's, or other liens or order for the payment
of money shall be filed against the Property or any building or
improvement thereon by reason of or arising out of any labor or
material furnished or alleged to have been furnished or to be
furnished to or for Lessee at the Property, or for or by reason of
any change, alteration or addition or the cost or expense thereof
or any contract relating thereto, Lessee shall cause the same to be
canceled and discharged of record, by bond or otherwise as allowed
by law, at the expense or Lessee, within five (5) days after
written demand therefore, and shall also defend on behalf of
Lessor, at Lessee's sole cost and expense, any action, suit or
proceeding which may be brought thereon or for the enforcement of
such liens or orders, and Lessee will pay any damages and satisfy
and discharge any judgment entered therein and save harmless Lessor
from any claim or damage resulting therefrom. Lessee's failure to
comply with this section shall give Lessor the right to avail
Lessor of the remedies in Section 20 of this Lease, upon the
expiration of said demand, without any additional or other notice
as required by Section 20 of this Lease.
Section 18. LESSEE'S INDEMNIFICATION ~(SF LESSOR. Lessee
shall indemnify and save harmless Lessor and Lessor's agents
against and from all liabilities, obligations, damages, penalties,
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claims, costs, charges and expenses, including reasonable
engineers' and attorneys' fees, which may be imposed upon, incurred
by or asserted or claimed against Lessor or Lessor's agents by
reason of any of the following occurrences during the term of this
Lease.
A. Any work or thing done in, on or about the Property
or any part thereof by Lessee or any party other than Lessor or
Lessor's agents;
B. Any use, non-use, possession, occupation, condition,
operation, maintenance or management of the Property or any part
thereof or any road or canal adjacent thereto;
C. Any negligence on the part of Lessee or any of
Lessee's agents, contractors, servants, employees, sublessees,
licensees or invites;
D. Any accident, injury to or death of any person or
damage to property occurring in, on or about the Property or any
part thereof, or any road or canal adjacent thereto; or
E. Any failure on the part of Lessee or anyone holding
by, through or under Lessee to perform or comply with any of the
covenants, agreements, terms, provisions, conditions or limitations
contained in this Lease on Lessee's part to be performed or
complied with.
If any action or proceeding ie brought against Lessor or
Lessor's agents or any claim is asserted against Lessor or Lessor's
agents arising from or in any way relating to anything described in
Sections 18 A through E. above, then Lessee shall, at Lessee's
expense, resist or defend such claim or action or proceeding by
counsel approved by Lessor in writing, which approval Lessor agrees
not unreasonably to withhold. If Lessee has supplied Lessor with
insurance policies covering any of the aforementioned risks, no
claim shall be made against Lessee unless and until the insurer
shall fail or refuse to defend and/or pay all or any part thereof.
The covenants contained in this Section 18 shall survive the
expiration, cancellation or termination of this Lease.
Section 19. EMINENT DOMAIN. In the event that the entire
Property shall be taken under any condemnation or eminent domain
proceedings or by private purchase under threat of condemnation
during the term hereof, or in the event any portion of the Property
shall be taken in any such proceedings and the remaining portion
shall not be suitable or adequate for the uses and purposes for
which the Property is being utilized by Lessee, then, and in any
such event, this Lease shall terminate on the date of such taking,
and any rental paid in advance shall be apportioned and promptly
refunded to Lessee.
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If a portion of the Property shall be taken under any
condemnation or eminent domain proceedings or by private purchase
under threat of condemnation during the term hereof, and the
remaining portion of the Property not taken or condemned shall be
suitable and adequate for the uses and purposes of Lessee,
permitted by this Lease, then, in such event, this Agreement shall
be and remain unaffected by such condemnation or eminent domain
proceedings as to such remaining Property unaffected by such
proceeding, except that, effective as of the date of such taking,
the rental shall be diminished by an amount representing the part
of the rental applicable to that portion, if any, if the Property
which is so condemned or taken.
All compensation awarded or paid upon a total or partial
taking of the Property, including the value of the leasehold estate
created hereby, shall belong to and be the property of Lessor
without any participation by Lessee; provided, however, that
nothing contained herein shall be construed to preclude Lessee, at
Lessee's sole cost and expense, from independently prosecuting any
claim directly against the condemning authority for loss of
business, and/or depreciation to, damage to, and/or cost of removal
of and/or for the value of stock and/or trade fixtures, furniture
and other personal property belonging to Lessee; provided, however,
that no such claim shall diminish or otherwise adversely affect
Lessor's award or other awards of any and all ground and underlying
lessors or mortgagees.
Section 20. DEFAULT.
20.1 Each one or more of the following events shall be deemed
a default by Lessee and a breach of this Lease:
A. Lessee's failure to observe, perform or comply with
any of the terms, covenants or conditions in this Lease;
B. The adjudication of Lessee as insolvent or bankrupt;
the taking by Lessee of the benefit of any other insolvency act or
procedure, which term includes any form of proceeding for
reorganization or arrangement or re-arrangement under any present
or future state or federal bankruptcy act, as well ae assignment
for the benefit of creditors; or the appointment of a receiver or
liquidator remains undischarged for thirty (30) days;
C. The abandonment of the Property by Lessee.
If a default shall occur, then, and in such event, Lessor at
any time thereafter may, at its option, give Lessee ten (10) days'
written notice of default, stating that at the expiration of said
ten (10) days, this Lease and the term hereby demised shall expire
and terminate and all rights of Lessee under this Lease shall
expire and terminate and Lessee will then quit and peacefully
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surrender the Property to Lessor, but Lessee shall remain liable as
hereinafter provided.
20.2 Upon any such expiration or termination of this Lease,
Lessee shall quit and peacefully surrender the Property to lessor,
and Lessor, upon or at any time after any such expiration or
termination, may, without further notice, enter upon and re-enter
the Property and possess and repossess itself thereof, by force,
summary proceedings, ejectment or otherwise, and may dispossess
Lessee and remove Lessee and all other persons and property from
the Property, and may have, hold and enjoy the Property and the
right to receive all rental income of and from the same.
20.3 At any time, or from time to time, after any such
expiration or termination, Lessor may relet the Property, or any
part thereof, for such term or terms (which may be greater or less
than the period which would otherwise have constituted the balance
of the term of this Lease) and on such conditions (which may
include concessions or free rent and alterations of the Property)
as Lessor, in Lessor's uncontrolled discretion, may determine, and
Lessor may collect and receive the rents therefore. Lessor shall
in no way be responsible or liable for any failure to relet the
Property or any part thereof, or for any failure to collect any
rent due upon any such reletting.
20.4 No such expiration or termination of this Lease shall
relieve Lessee of Lessee's liability and obligations under this
Lease, and such liability and obligations shall survive any such
expiration or termination. In the event of any such expiration or
termination, whether or not the Property or any part thereof shall
have been relet, Lessee shall pay to Lessor the rent and all other
charges required to be paid by Lessee up to the time of such
expiration or termination of this Lease, and thereafter Lessee,
until the end of what would have been the term of this Lease in the
absence of such expiration or termination, shall be liable to
Lessor for, and shall pay to Lessor as and for liquidated and
agreed current damages for Lessee's default, the equivalent of the
amount of the rent and the other rent charges which would be
payable under this Lease by Lessee if this Lease were still in
effect, less the net proceeds of any reletting effected pursuant to
the provisions of Section 24.3 of this Lease, after deducting all
Lessor's expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage and
management commissions, operating expenses, legal expenses,
reasonable attorneys' fees, alteration costs and expenses of
preparation for such reletting. In no event shall Lessor owe any
money to Lessee by reason of any reletting.
20.5 Lessee hereby expressly waives, so far as permitted by
law, the service of any notice of intention to re-enter provided
for in any statute, and except as is herein otherwise provided,
Lessee, for and on behalf of Lessee and all persons claiming by,
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through or under Lessee (including any leasehold mortgagee or
creditor) also waives any and all right of redemption or re-entry
or repossession if Lessee shall be dispossessed by a judgment or by
warrant of any court or .judge or in case of re-entry or
repossession by Lessor or in case of any expiration or termination
of this Lease. The terms "enter", "re-enter", "entry" or "re-
entry", as used in this Lease are not restricted to their technical
legal meanings.
20.6 No failure by Lessor to insist 'upon the strict
performance of any agreement, term, covenant or condition hereof or
to exercise any right or remedy consequent upon a breach thereof,
and no acceptance of full or partial rent during the continuance of
any such breach, shall constitute a waiver of any such breach or of
such agreement, term, covenant or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by
Lessee, and no breach thereof, shall be waived, altered or
modified, except by a written instrument executed by Lessor. No
waiver of any breach shall affect or alter this Lease, but each and
every agreement, term, covenant and condition hereby shall continue
in full force and effect with respect to any other then existing or
subsequent breach thereof.
20.7 In the event of any breach or threatened breach by Lessee
of any of the agreements, terms, covenants or conditions contained
in this Lease, Lessor shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any right and
remedy allowed at law or in equity or by statute or otherwise,
through re-entry, summary proceedings or otherwise, whether or not
provided for in this Lease.
20.8 Each right and remedy provided for in this Lease shall•be
cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing at law or
in equity or by statute or otherwise, and the exercise or beginning
of the exercise by Lessor or Lessee of any one or more of the
rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the party in
question of any or all other rights or remedies provided for in
this Lease or now or hereafter existing at law or in equity or by
statute or otherwise.
Section 21. LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS. If
Lessee shall at any time fail to take out, pay for, maintain or
deliver any of the insurance policies or certificates therefore
required by Section 14 of this Lease, or if Lessee shall fail to
make any other payment or perform any other act on its part
required to be made or performed by this Leaser then Lessor after
ten (10) days written notice to Lessee, or without notice in case
of an emergency, and without waiving or releasing Lessee from any
obligation of Lessee contained in this Lease as a result of such
12
default, may, but shall be under no obligation to, take out, pay
for and maintain any of the insurance policies provided for in
Section 14 of this Lease, and make any other payment or perform any
other act on Lessee's part required to be made or performed by this
Lease. If Lessor at any time so elects or is compelled by any
other person to cure any breach by Lessee, or is compelled to incur
any other expense arising out of any breach of this Lease by Lessee
(including, without limitation, reasonable attorneys' fees,
engineering and expert witness fees, and disbursements in
instituting, prosecuting or defending any suits, actions or
proceedings to enforce Lessor's rights under this or any other
section of this Lease or otherwise), the sum or sums so paid by
Lessor, with all interest, costa and damages, shall be paid by
Lessee to Lessor within five (5) days following written demand.
Such expenses may be recovered in the same action or proceedings
forming the basis of default.
Section 22. NO REINSTATEMENT. No receipt of monies by Lessor
from Lessee after a default or after the termination or
cancellation of this Lease shall reinstate, continue or extend the
term of this Lease, or affect any notice theretofore given to
Lessee, or operate as.a waiver of the right of Lessor to enforce
the payment of fixed or additional rents or rents then due, or
thereafter falling due, or operate as a waiver of the right of
Lessor to recover possession of the Property by proper suit,
action, proceeding or remedy; it being agreed that, after the
service of notice to terminate or cancel this Lease, or the
commencement of suit, action or summary proceedings, or any other
remedy, or after a final order or judgment for the possession of
the said Property, Lessor may demand, receive and collect any
monies due, or thereafter falling due, without in any manner
affecting such notice, proceeding, suit, action or order or
judgment; and any and all such monies collected shall be deemed to
be payments on account of the use and occupation or Lessee's
liability hereunder.
Section 23. ESTOPPEL CERTIFICATES. Lessee shall, without
charge at any time and from time to time, within ten (10) days
after written request by Lessor, execute, acknowledge and deliver
to Lessor a statement in writing certifying that: (a) the Lease is
unmodified and in full force and effect (or if there have been
modifications that the-same is in full force and effect as modified
and stating the modifications); (b) the dates to which the rent and
other charges have been paid in advance, if any; (c) the rent then
payable under this Lease; (d) the date of expiration of the term of
this Lease; and ( e ) whether or not there are then existing any
setoffs or defenses against the enforcement of any of the
agreements, terms, covenants or conditions hereof, or any
modifications hereof upon the part of Lessee, t_o be performed or
complied with, and, if so, specifying the same. It is intended and
agreed upon by Lessee that any such statement delivered pursuant to
this Section 23 may be relied upon by prospective purchasers of
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Lessor's interest or mortgagees of Lessor's interest or assignees
of any mortgage upon Lessor's interest in the Property.
Section 24. QUIET ENJOYMENT. Lessee., upon paying the rent
and performing the other terms, covenants and conditions of this
Lease on Lessee's part to be performed, shall and may, at all times
during the term of this Lease, peaceably and quietly have, hold and
enjoy the said Property free of molestation by Lessor, subject,
however, to the exceptions, reservations and conditions of this
Lease.
Section 25. SURRENDER OF POSSESSION. Lessee agrees to
surrender possession and occupancy of the Property peaceably at the
termination of this Lease, without delay, in good order and
condition as on the commencement of the term hereof, with ordinary
wear and tear excepted. The premises shall be neat and clean and
free of all trash and debris. Notwithstanding anything herein
contained to the contrary, Lessee shall not have any obligation to
make major replacements or repairs during the term of lease. This
covenant shall survive the expiration, termination or cancellation
of this Lease.
Section 26. SUCCESSORS AND ASSIGNS. The terms, covenants and
agreements of this Lease shall be binding upon and inure to the
benefit of Lessor, its successors and assigns, and Lessee, its
successors and assigns. Nothing in this Section 25 contained shall
be deemed to authorize or permit any assignment or other transfer,
in whole or in part, of the interest of Lessee in violation of any
of the other provisions of this Lease.
Section 27. ATTORNEY'S FEES. Should either party employ an
attorney to enforce any of the provision of this Lease, or defend
any action instituted by the other party, the prevailing party
shall be entitled to be reimbursed by the other party for all
reasonable costs, charges and expenses, including attorney's fees,
expended or incurred in connection therewith, including same on
appeal.
Section 28. TIME OF ESSENCE. It is understood and agreed
between the parties hereto that time is of the essence in this
Lease.
Section 29. ENTIRE AGREEMENT. This Lease Agreement sets
forth all of the covenants, promises, agreements, conditions and
understandings between Lessor and Lessee governing the Property.
There are no covenants, promises, agreements, conditions and
understandings, either oral or written, between Lessor and Lessee
other than those herein set forth, and no subsequent alterations,
amendments, changes, modifications or additions to this Lease shall
be binding upon Lessor or Lessee unless aricl~ until reduced to
writing and signed by both parties.
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Section 30. DEFINITION OF LESSOR. The term "Lessor" as used
in this Lease shall mean only the owner or mortgagee in possession
for the time being of the Property or the holder of a Lease of said
Property so that in the event of any sale of the Property or an
assignment of this Lease or any underlying lease or a demise of the
Property, Lessor shall be and hereby is entirely released and
discharged from any and all further liability and obligations of
Lessor hereunder, except any that may have theretofore accrued.
Lessor reserves the right to add to or sever the ownership of or
title to any portion(s) of the Property.
Section 31. TYPE OF LEASE. Lessee covenants and agrees that
this Lease is a land lease only and not a residential lease.
Section 32. NOTICES. Any and all notices, demands,
approvals, consents, dieapprovals, objections, offers or other
communications or documents required to be given, delivered or
served or which may be given, delivered or served under or by the
terms and provisions of this Lease or pursuant to law or otherwise,
shall be in writing and shall be deemed to have been duly given,
delivered or served if and when sent by registered or certified
mail, return receipt requested, enclosed in a wrapper with the
proper postage prepaid thereon and deposited with the Registry
Clerk of any United States Poet Office, branch Post Office, Post
Office Station or Sub-Station regularly maintained, addressed, if
to the Lessee, at:
VILLAGE OF NORTH PALM BEACH
501 U.S. Highway One
North Palm Beach, Florida 33408
or to such other address as Lessee may from time to time designate
by written notice to Lessor, or if to Lessor, addressed to:
THE BENJAMIN SCHOOL
11000 Ellison Wilson Road
North Palm Beach, Florida 33408
with a copy to:
Freeman W. Barner, Jr., Esquire
CROMWELL, PFAFFENBERGER, DAHLMEIER,
BARKER & GRIFFIN
631 U.S. Highway One, Suite 410
North Palm Beach, Florida 33408
or to such other agent or agents as may be designated by either
party. The date of deposit with the said Registry Clerk shall be
deemed to be the date of such service.
15
Section 33.~ RECORDING. Lessee shall not record this Lease,
and any attempt by Lessee or anyone acting on Lessee's behalf to
record or the actual recording of this Lease among the Public
Record of the State of Florida by Lessee shall constitute a
default.
Section 34. WAIVER OF JURY TRIAL AND COUNTERCLAIM. The
parties hereto waive a trial by jury of any and all issues arising
in any action or proceeding between them or their successors under
or connected with this Lease or any of its provisions, any
negotiations in connection therewith, or Lessee's use or occupation
of the Property. In case Lessor shall commence summary proceedings
of an action for non-payment of rent or additional rent hereunder
against Lessee, Lessee shall not interpose any counterclaim of any
nature or description in any such proceeding or action, but shall
be relegated to an independent action of law unless it is a
compulsory counterclaim under Florida Rules of Civil Procedure.
Section 35. WAIVER OF SUBROGATION. The parties hereby
mutually waive any rights they may have against each other to
recover for loss or damage to property to the extent that such loss
or damage is covered by their respective insurance policies. In
addition, all insurance policies carried by either party covering
the Property, including, .but not limited to, contents, fire and
casualty insurance, shall expressly waive any right on the part of
the insurer against the other party. for damage to or destruction of
the Property resulting from the acts, omissions or negligence of
the other party.
Section 36. NO SIGNS PERMITTED. Except for a sign informing
the public that there shall be no trespassing, Lessee shall not
install any sign(s) on the Property or place on the roof or any
exterior wall (including both the interior and exterior surfaces of
windows or doors) of any building or structure on the Property, any
sign, symbol, .advertisement, neon or other light, shade or any
other object or thing visible to public view off the Property
without the written consent of Lessor. Such consent shall not be
unreasonably withheld by Lessor.
Section 37. GOVERNING LAWS. The laws of the State of Florida
shall govern the validity, performance and enforcement of this
Lease.
Section 38. SEVERABILITY. If any term or provision of this
Lease or the application thereof to any person or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of
this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and`'Jie enforced to the
fullest extent permitted by law.
16
Section 39. SECTION HEADINGS. The section titles are for
convenience and reference only and do-not define, limit or construe
the covenants of such sections, and shall not be deemed or
construed in any way as part of this Lease or as a supplement
thereto or an amendment thereof.
Section 40. NO PERSONAL LIABILITY OF LESSOR. Notwithstanding
anything to the contrary provided in this Lease, it is specifically
understood and agreed, such agreement being a primary consideration
for the execution of this Lease by Lessor, that there shall be
absolutely no personal liability on the part of Lessor, its
successors, assigns or any mortgagee in possession (for the
purposes of this paragraph collectively referred to as "Lessor"),
with respect to any of the terms, covenants and conditions of this
Lease, and that Lessee shall look solely to the equity of Lessor in
the Property for the satisfaction of each and every remedy of
Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor,
such exculpation of liability to be absolute and without any
exception whatsoever.
Section 41. LOSS REPORTING. Lessee covenants and agrees that
in the event any property damage or personal injury occurs in or
about the Property, that Lessee shall immediately give written
notice thereof to lessor, whether or not such loss or injury is
covered by insurance carried by Lessor or Lessee, and that such
notice shall specify in reasonable detail: (1) the time, date and
place of such damage or injury, (2) the names and addresses of
person injured or claiming injury, (3) the names and addresses of
witnesses to the damage or injury, and (4) a full and complete
description of the damage and injury, together with a detailed
report specifying and describing the incident or occurrence of such
damage or injury, and the causes thereof, to the extent known.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals as of the date first above written.
WITNESSES:
~,~r
LESSEE:
VILLAGE OF NORTH PALM BEACH,
a Flor' mun'cipal rporation
By:
y ierman, Mayor
17
Attes
Village Clerk ~ v
DATED• /!~~ /9 9 ~
LESSOR:
THE BENJAMIN
INC.
PRIVATE SCHOOL,
By:
Atte
DATED: ~ ~c~`~L
18
LEGAL DESCRIPTION
The Easterly 65 feet of the following
described parcel:
The North 125 feet of the Eaet 300 feet of the
West 500 feet of Lot 6, Governmental Lot 8
Subdivision, according to the Plat thereof on
file in the Office of the Clerk of the Circuit
Court in and for Palm Beach County, Florida,
as recorded in Plat Book 18, Page 4.
19