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HomeMy Public PortalAboutFIND Lease Agmt MSA 640/640A - 06/2009 - 01-2010JONES FOSTER JOHNSTON & STUBBS, P.A. Attorneys and Counselops John C. Randolph, Esquire Direct Dial: 561-650-0458 Direct Fax: 561-650-0435 E -Mail: jrandolph@jones-foster.com June 8, 2009 Ms. Rita Taylor, Town Clerk Town of Gulf Stream 100 Sea Road Gulf Stream Florida 33483 Flagler Center Tower, Suite 1100 505 South Flagler Drive West Palm Beach, Florida 33401 Telephone (561) 659-3000 Mailing Address Post Office Box 3475 West Palm Beach, Florida 33402-3475 VIA FAX: 737-0188 Re: Town of Gulf Stream FIND Site MSA 640/640A Lease for Storm Debris Reduction Site Our File No. 13147.1 Dear Rita: I have reviewed the Temporary Lease Agreement presented by FIND to the Town of Gulf Stream. You have noted the changes to paragraphs 5 and 27. Paragraph 6 relating to term has also changed, as the new Temporary Lease shall be from June 1, 2009 through January 1, 2010, and rent shall be a total of $100.00 per month and shall be prepaid. The modifications to paragraphs 5 and 27 make clear the responsibility of the Town to do its own due diligence investigation in regard to the site prior to accepting the terms of the Lease. Paragraph 5 provides that the Town shall accept the leased premises in and as is condition including, without limitation, the subsurface and environmental condition of the premises. Paragraph 27 includes new language which encourages the Lessee to take date stamped photographs and perform any other due diligence of the leased premises prior to use to document existing conditions. An additional requirement is placed on the Lessee at its expense, at the conclusion of the lease, to take a minimum of four soil samples and four ground water samples of the active storage areas and to test them for constituents identified in Exhibit "B" to prove compliance with paragraph 26F which requires the Lessee to remove any hazardous waste or hazardous substances which exceed allowable levels in the ground or the ground water within the leased premises arising from Lessee's use of the leased premises. If any constituents identified in Exhibit "B" are detected at concentrations that exceed the allowable levels, it shall be Lessee's responsibility to demonstrate that Lessee's use of the premises did not cause or contribute to such exceedences. www.jones foster.com Ms. Rita Taylor June 8, 2009 Page 2 The Town should be made aware of these responsibilities and the potential for liability in the event the Town's use of the property causes environmental damage based on specifications set forth in Exhibit "B". I have reviewed this new Lease only against pages 2, 7 and 8 of the old Lease which you have provided me. If you wish me to conduct any further review, please advise. In the meantime, it appears to me that the Town should take those actions deemed necessary to protect itself against being accused, on surrender of the lease, of any environmental damage to the property. This protection can be accomplished by performing any environmental testing necessary in advance of its use of the property. Sincerely, JONES, FOSTER, JOHNSTON & STUBBS, P.A. ohn 4CRandolph JCR/ssm FLORIDA INLAND NAVIGATION DISTRICT !ilo June 2, 0�: William Thrasher, Manager COMMISSIONERS Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 BRUCE D. BARKETT Chair INDIAN RIVER COUNrY Dear Mr. Thrasher: JERRY H. SANSOM Vice -Chair BREVARO COUNTY S. NORMAN BRAY Treasurer NASSAU COUNTY DONN R. COLEE, JR. Secretary PALM BEACH COUNTY J. CARL BLOW ST. JOHNS COUNTY E. TYLER CHAPPELL BROwARD COUNTY T. SPENCER CROWLEY, III MIAMI BADE COUNTY DONALD J. CUOZZO MARTIN COUNTY NANCY J. FREEMAN VOLUSIACOUNTY GAIL KAVANAGH Sr. LUCIE COUNTY MICHAEL D. MESIANO DUVAL COUNTY JONATHAN S. NETTS RAGLER COUNTY DAVID K. ROACH EXECUTIVE DIRECTOR MARK T. CROSLEY ASSISTANTEIEcunVE DIRECTOR RE: FIND Site MSA 640/640A Lease to the Town of Gulfstream for a Storm Debris Reduction Site The District's Board has approved your request to lease District property within the Town for a Temporary Debris Storage and Reduction Site. Please note that this approval was for our northern property. Our southern property, adjacent to the old Drive In, will not be available because the Corps of Engineers was awarded American Recovery and Reinvestment Act funding to construct the facility which should initiate in October of 2009. I have attached a Temporary Lease Agreement for the Town's execution. Please make yourself familiar with the lease provisions including revised paragraphs 5 and 27 and Exhibit B. Please contact me should you have any questions concerning this matter. ae dV David SiK. Roach Executive Director ADMINISTRATIVE OFFICE ON THE INTRACOASTAL WATERWAY IN PALM BEACH COUNTY 1314 MARCINSKI ROAD, JUPITER, FLORIDA 33477-9427 TELEPHONE 561627-3355 FAX No. 561.624-6480 www.aiLv.org TEMPORARY LEASE AGREEMENT This TEMPORARY LEASE AGREEMENT ("LEASE") is made and entered into this day of , 2009, between "the Parties, the Florida Inland Navigation District, an independent special district existing under the laws of the State of Florida (the "DISTRICT"), and the Town of Gulfstream, ("LESSEE"). WITNESSETH: WHEREAS, DISTRICT is the owner in fee simple of a parcel of land in Palm Beach County, Florida, designated as Dredged Material Management Area MSA - 640/640A which will be used by DISTRICT and the United States for the improvement and maintenance of the Atlantic Intracoastal Waterway from St. Marys River, Florida to Miami Harbor, Florida; and WHEREAS, LESSEE desires to temporarily lease from DISTRICT Dredged Material Management Area MSA -640/640A, a description of which is attached hereto as Exhibit A and made a part hereof, for a Temporary Debris Storage and Reduction Site (TDSR) subject to said rights of DISTRICT and the United States of America and to the terms and conditions of this Lease, and WHEREAS, DISTRICT is of the opinion that such use by the LESSEE pursuant to the provisions of this agreement is in the public interest, and WHEREAS, DISTRICT is agreeable that a TEMPORARY LEASE should be executed for a limited term at a nominal rental subject to the terms and conditions stated herein. NOW THEREFORE, in consideration of the promises and mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, it is agreed by the parties hereto: 1. RECITALS: The recitals contained herein above are true and correct and incorporated herein by reference. 2. TEMPORARY LEASE: DISTRICT hereby temporarily leases to LESSEE the property hereinafter known as the "Leased Premises" as described in paragraph 4 below, subject to the terms and conditions set forth herein. 3. PROJECT MANAGEMENT: The Project Manager for the DISTRICT is its Executive Director and all correspondence and communications from the LESSEE shall be directed to him/her. The Project Manager shall be responsible for overall coordination and oversight related to the performance of this lease. 4. DESCRIPTION OF THE LEASED PREMISES: The Leased Premises which is subject to this TEMPORARY LEASE, is situated in Palm Beach County, State of Florida, as described in Exhibit A, attached hereto and made a part of this agreement. 5. EXISTING CONDITIONS: LESSEE agrees to accept the Leased Premises in as is condition, including, without limitation, the subsurface and environmental condition of the Premises, subject to existing easements and deed restrictions. LESSEE is encouraged to perform any due diligence investigations it deems necessary to meet the provisions of this lease prior to placing any debris or other use of the Premises. 6. TERM: The term of this TEMPORARY LEASE shall be from June 1, 2009 through January 1, 2010. Rent shall be the total of $100.00 per month and shall be prepaid. Prepayment of the rent shall not affect in any way the DISTRICT's rights under paragraph 24 below. 7. PURPOSE: LESSEE shall manage the Leased Premises to provide a Temporary Debris Storage and Reduction Site (TDSR). LESSEE is hereby allowed to mow the cleared area of Premises but shall not make any other alterations to the property. LESSEE shall not use the Leased Premises property for any other purpose that is not described in this paragraph. 8. USE RESTRICTIONS: The DISTRICT reserves the right to direct and impose use restrictions on the LESSEE's use of the Leased Premises to address problems and complaints noted by the neighborhood, governmental agencies, or the DISTRICT. z 9. QUIET ENJOYMENT AND RIGHT OF USE: LESSEE shall have the right of ingress and egress to, from, and upon the Leased Premises for all purposes that do not conflict with the DISTRICT's and the United States of America's Dredge Material Management Program. 10. UNAUTHORIZED USE: LESSEE shall, through its agents and employees, prevent the unauthorized use of the Leased Premises or any use thereof not in conformance with this TEMPORARY LEASE. 11. ASSIGNMENT: This TEMPORARY LEASE shall not be assigned in whole or in part without the prior written consent of DISTRICT. Any assignment made either in whole or in part without the prior written consent of DISTRICT shall be void and without legal effect 12. EASEMENTS: All easements to be granted by LESSEE including, but not limited to, utility easements are expressly prohibited without the prior written approval of DISTRICT. Any easement not approved in writing by DISTRICT shall be void and without legal effect. 13. SUBLEASES: This TEMPORARY LEASE is for the purposes specified herein, and subleases of any nature are prohibited without the prior written approval of DISTRICT. Any sublease not approved in writing by DISTRICT shall be void and without legal effect. 14. RIGHT OF INSPECTION: DISTRICT or its duly authorized agents, representatives or employees shall have the right at any and all times to inspect the Leased Premises and the works and operations of LESSEE in any matter pertaining to this TEMPORARY LEASE, 15. PLACEMENT AND REMOVAL OF IMPROVEMENTS: Any structures, improvements, or signs constructed by LESSEE in accordance with a plan approved by the DISTRICT shall be removed by LESSEE at the termination of this LEASE. No trees shall be removed or land alterations done without the prior written approval of DISTRICT. Removable equipment and removable improvements placed on the Leased Premises by LESSEE which do not become a permanent part of the Leased 3 Premises will remain the property of LESSEE and may be removed by LESSEE upon termination of this TEMPORARY LEASE, pursuant to Paragraph 28 below. 16. INSURANCE BY LESSEE: In consideration for the privilege herein granted, LESSEE shall not claim any damages from the DISTRICT in connection with or on account of, and as between the parties shall be solely responsible for, any injuries or damages arising in or on the Leased Premises while being used by LESSEE and its agents, representatives, and employees. The DISTRICT does not warrant or represent that the Lease Premises are safe or suitable for the purpose for which LESSEE is permitted to use it, and LESSEE assumes all risks in its use. LESSEE, and any contractors and sub -contractors utilized by LESSEE pursuant to this LEASE, shall have public liability and workmen's compensation insurance in the amount of not less than one million dollars ($1,000,000.00) and shall name DISTRICT as an additional insured on such policy or policies. LESSEE shall provide thirty (30) days' prior written notice to DISTRICT in the event of cancellation thereof. LESSEE, prior to entering upon the Leased Premises, shall provide to DISTRICT copies of said insurance policies or certificates of insurance showing conformity with this provision. LESSEE shall provide and keep in force such other insurance and in such amount as may from time to time be required by DISTRICT against such other insurable hazards as at the time are commonly insured against in the case of other premises similarly situated or similarly utilized. It is specifically understood and agreed that in no event shall DISTRICT or any interest of DISTRICT in the Leased Premises or any portion thereof be liable for or subject to any construction lien or liens for improvements or work made by or for LESSEE; and this Agreement specifically prohibits the subjecting of DISTRICT's interest in the Leased Premises or any portion to any construction lien or liens for improvements made by LESSEE which LESSEE is responsible for payment under the terns of this Agreement. All persons dealing with LESSEE are hereby placed upon notice of this provision. All memoranda and short forms of this agreement which shall be recorded among any public records shall contain the provisions set forth above in this paragraph; provided, however, nothing contained in this sentence shall permit or 4 authorize the recording of and memorandum or short form of this TEMPORARY LEASE Agreement other than by DISTRICT. 17. ADDITIONAL INSURANCE: LESSEE shall require any third party contractors to maintain insurance in the amounts and types indicated above and shall furnish the DISTRICT copies of the Certificates of Insurance. 18. PAYMENT OF TAXES AND ASSESSMENTS: LESSEE shall assume full responsibility for and shall pay all liabilities that accrue to the Leased Premises and/or to the improvements thereon, including any and all ad -valorem taxes and drainage and special assessments or taxes of every kind and all construction liens which may be hereafter lawfully assessed and levied against the Leased Premises, resulting from LESSEE use of the Lease Premises for the purposes provided for herein. 19. NO WAIVER OF BREACH: The failure of DISTRICT to insist in any one or more instances upon strict performance of any one or more of the convenants, terms and conditions of this TEMPORARY LEASE shall not be construed as a waiver of such covenants, terms or conditions, but the same shall continue in full force and effect, and no waiver of DISTRICT of any of the provisions hereof shall in any event be deemed to have been made unless the waiver is set forth in writing and signed by DISTRICT. 20. NON-DISCRIMINATION: LESSEE shall assure and certify that it will comply with Title IV of the Civil Rights ACT of 1964 (PL 88-352) as amended and, in accordance with that Act, shall not discriminate against any individual's race, color, creed, sex, national origin, age, handicap, or marital status with respect to any activity occurring within the Leased Premises or upon lands adjacent to and used as an adjunct of the Leased Premises. 21. UTILITY FEES: LESSEE shall be responsible for payment of all charges for the furnishing of gas, electricity, water and other public utilities to the Leased Premises, if needed by LESSEE, and for having the utilities turned off when the Leased Premises are surrendered. 22. COMPLIANCE WITH LAWS: LESSEE agrees that this TEMPORARY LEASE is contingent upon and subject to LESSEE obtaining all applicable permits and 5 complying with all applicable permits, regulations, ordinances, rules, and laws of the State of Florida or the United States or of any political subdivision or agency of either. 23. NOTICE: All notices given under this TEMPORARY LEASE shall be in writing and shall be served by certified mail to the last address of the party to whom notice is to be given, as designated by such party in writing. DISTRICT and LESSEE hereby designate their address as follows: TO DISTRICT: Florida Inland Navigation District 1314 Marcinski Road Jupiter, Florida 33477 Attn: Executive Director TO LESSEE: Town of Gulfstream 100 Sea Road Gulf Stream, FL 33483 Attn: William Thrasher, Manager Copies of all Notices shall also be delivered to the DISTRICT'S Project Manager. 24. BREACH OF COVENANTS, TERMS, OR CONDITIONS: Should LESSEE breach any of the convenants, terms, or conditions of this TEMPORARY LEASE, DISTRICT shall give written notice to LESSEE to remedy such breach within thirty (30) days of such notice. In the event LESSEE fails to remedy the breach to the satisfaction of DISTRICT within thirty (30) days of receipt of written notice, or longer period if it is not capable of being cured within 30 days but LESSEE has commenced the cure, DISTRICT may either terminate this TEMPORARY LEASE and recover from LESSEE all damages DISTRICT may incur by reason of the breach including, but not limited to, the cost of recovering the Leased Premises and attorney's fees; or maintain this TEMPORARY LEASE in full force and effect and exercise all rights and remedies herein conferred upon DISTRICT. 25. DAMAGE TO THE PREMISES: LESSEE agrees that it will not do, or cause to be done, in, on, or upon the Leased Premises or as affecting said Leased Premises, any act which may result in damage or depreciation of value to the Leased Premises, or any part thereof. 26. HAZARDOUS MATERIALS this TEMPORARY LEASE, it: LESSEE agrees that, during the term of A. Shall keep or cause the Leased Premises to be kept free of hazardous wastes or substances. B. Shall not cause or permit, as a result of any intentional or unintentional act or omission on the part of LESSEE or any assignees, a release of hazardous wastes or substances onto the Leased Premises. C. Shall comply with and ensure compliance by its employees and all others under its direction with all applicable federal, state, and local laws, ordinances, rules, and regulations. D. The terms "hazardous waste", "hazardous substance", "disposal", "release", and "threatened release", if used in this lease, shall have the same meaning as set forth in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and recovery Act, 49 U.S.C. Section 6901 et seq., the Florida Resource and Management Act, Chapter 403, Florida Statutes, the Pollution, Spill, Prevention, and Control Act, Chapter 376, Florida Statutes, or any other applicable state or federal laws, rules, or regulations adopted pursuant to any of the foregoing. E. Shall immediately provide DISTRICT with notice of any release or threatened release of hazardous waste within the Leased Premise, and shall immediately provide DISTRICT with notice of any injury or action taken by any local, state, or federal governmental body with respect to hazardous waste within the Leased Premises. F. Shall remove any hazardous waste or hazardous substances which exceed allowable levels in the ground or the groundwater within the Leased Premises, arising from LESSEE' use of the Leased Premises. 7 27. SURRENDER OF PREMISES: Upon termination or expiration of this TEMPORARY LEASE, LESSEE, shall surrender the Leased Premises to DISTRICT. Upon termination or expiration of this TEMPORARY LEASE, all structures permanently affixed to the land and all improvements made will become the property of the DISTRICT, provided, however, that if any structures are such, in the DISTRICT'S determination, that they can be moved without harm to the area where situated then the LESSEE may, within thirty (30) days following termination of the TEMPORARY LEASE, remove the same. Upon final termination, the property must be left in essentially the same condition as when it was first leased to the LESSEE, save for ordinary wear and tear, unless otherwise approved in writing by the DISTRICT. LESSEE is advised to take date stamped photographs and perform any other due diligence of the Leased Premises prior to use to document the existing conditions. Following the termination of the lease, the LESSEE, at its expense, shall take a minimum of four soil samples and four ground water samples of the active storage areas and will have them tested for the constituents identified in Exhibit B to prove compliance with Paragraph 26F. LESSEE shall notify the DISTRICT at least five (5) days in advance of taking said samples and DISTRCT shall have the right to split samples. LESSEE shall provide a copy of the sample results to the DISTRICT. If any constituents identified in Exhibit B are detected at concentrations that exceed the allowable levels, it shall be LESSEE's responsibility to demonstrate that LESSEE's use of the Premises did not cause or contribute to such exceedances. 28. PROHIBITIONS AGAINST LIENS OR OTHER ENCUMBRANCES: Fee title to the Leased Premises is held by DISTRICT. LESSEE shall not do or permit anything to be done which purports to create a lien or encumbrance of any nature against the real property contained in the Leased Premises including, but not limited to, mortgages or construction liens against the Leased Premises or against any interest of DISTRICT therein. 29. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this TEMPORARY LEASE shall be ruled by a court of competent s jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 30. DUPLICATE ORIGINALS: This TEMPORARY LEASE is executed in duplicate originals, each of which shall be considered an original for all purposes. 31. ENTIRE UNDERSTANDING: This TEMPORARY LEASE sets forth the entire understanding between the Parties and shall only be amended with the prior written approval of the Parties. 32. MAINTENANCE OF IMPROVEMENTS: LESSEE shall maintain the real property contained within the Leased Premises and the improvements located thereon in a state of good condition, working order, and repair including, but not limited to, keeping the Leased Premises free of trash or litter, and meeting all building and safety codes in the location situated. As may be mutually agreed to by the Parties, any removal, closure, etc., of the above improvements shall be acceptable when the proposed activity is consistent with the goals of conservation, protection, and enhancement of the natural and historical resources within the Leased Premises and with the approved plans. 33. GOVERNING LAW: This TEMPORARY LEASE shall be governed by and interpreted according to the laws of the State of Florida. 34. SECTION CAPTIONS: Articles, subsection and other captioned contained in this TEMPORARY LEASE are for reference purposes only and are in no way intended to describe, interpret, define or limit the scope or extent of intent of this TEMPORARY LEASE or any provisions thereof. 35. ATTORNEY'S FEES: In the event of any litigation arising out of or resulting from this TEMPORARY LEASE, the venue of such litigation shall be had only in the state courts in Palm Beach County, Florida. The prevailing party in such litigation shall be entitled to its costs and reasonable attorney's fees (at trial, appellate, and post- judgment proceeding levels). IN WITNESS WHEREOF, the parties have caused this TEMPORARY LEASE to be executed on the day and year first written above. 0 WITNESS: TM LESSEE BY: Its ATTEST: BOARD OF COMMISSIONERS OF THE FLORIDA INLAND NAVIGATION DISTRICT Executive Director 10 Exhibit A MSA 640 That portion of the South 355 feet of the SE -74- of the NE4 of Section 4, Township 46 South, Range 43 East, Palm Beach County, Flori embraced in a zone 360 feet wide when measured at right angles tFlorida, 0 'and lying West of and immediately adjoining the West right of way line of the Intracoastal Waterway from Jacksonville to Miami, Florida, as that right of way line is shown on the plat recorded in Plat Book 17, at Page 14-A, of the public records of said Palm Beach County, Florida. Containing 3.00 acres, more or less. MSA 640A All that certain tract or parcel of land situated in the Southeast Quarter of the Northeast Quarter of Section 4, Township 46 South, Range 43 East, Palm Beach County, Florida, more particularly described as follows: Commence at the Southeast corner of said Section 4 as a point of reference; thence North O1° 56' 23" West, 2755.62 feet along the Easterly boundary of said Section 4, to the Quarter Section Corner; thence South 890 4Q' 42" West, 685.06 feet along the Southerly boundary of the Southeast Quarter of the Northeast Quarter of Section 4, Township 46 South, Range 43 East, to a point on the Westerly right of way line of the Intra- coastal Waterway from Jacksonville to Miami, Florida, as said right of way line is shown on a map recorded in the Public Records of said Palm Beach County in Plat Book 17, at Page 14-A; thence continuing South 89040'42" West, 367.95 feet along the aforesaid South boundary of the Northeast Quarrer Section line as a point of beginning. Thence from the point of beginning above described, continuing along aforesaid Quarter Section line North 89040142" West, 260.31 feet to a pipe marking the Southwest Corner of the Southeast Quarter of the Northeast Quarter of aforesaid Section 4; thence North 01039'28" West, 452.82 feet along the Westerly boundary of the Southeast Quarter of the Northeast Quarter of said Section 4; thence North 89040'42" East, 735.03 feet to a point on the Westerly right of way line of the above mentioned Intra- coastal Waterway; thence continuing along said Westerly right of way line South 11°36'46" West, a distance of 100.00 feet; thence South 89°40'42" West, 367.95 feet; thence South 11°36'46" West, 362.70 feet to the point of beginning. Containing 4.09 acres, more or less. EXHIBIT °B" SPECIFICATIONS FOR CONTAMINANTS TESTING A minimum of four soil or sediment samples shall be collected from the floor of the dredged material containment basin. Soil samples shall be collected from 0 to 6 inches below the soil surface with a stainless steel hand auger. Alternatively, if sediment is covered by water, samples shall be retrieved with a stainless steel Ekman grab and the top two inches of sediment shall be sampled. All sampling and analyses shall be conducted in accordance with Florida Department of Environmental Protection Standard Operating Procedures applicable to soil and sediment sampling and analyses including, but not limited to; procedures for sampling device decontamination, sample handling and preservation, and chain of custody record. The soil or sediment samples shall be analyzed by the specified U.S. Environmental Protection Agency (EPA) methods for the following groups of potential contaminants: • Metals (arsenic, cadmium, copper, lead, mercury, nickel, and zinc) - EPA Methods 6010/7470/7471 • Chlorinated Pesticides and Polychlorinated Biphenyls (PCB) — EPA Methods 8081/8082 • Polynuclear Aromatic Hydrocarbons (PAH) —EPA Method 8310 Upon completion of sampling and testing, the sampling organization shall submit to the District a letter report documenting sampling and analytical procedures, showing sampling locations, and presenting the laboratory results.