2013-42 Benjamin School License Agrmt_McLaren Rd ROW ParkingRESOLUTION 2013 -42
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA APPROVING A REVOCABLE LICENSE
AND INDEMNIFICATION AGREEMENT WITH THE BENJAMIN PRIVATE
SCHOOL, INC. RELATING TO PARKING WITHIN THE MCLAREN ROAD
RIGHT -OF -WAY AND AUTHORIZING THE MAYOR AND VILLAGE
CLERK TO EXECUTE THE AGREEMENT; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, through the enactment of Ordinance No. 2013 -06, the Village Council created the
Benjamin School Planned Unit Development ( "PUD ") and granted a waiver from Section 45 -33
of the Village Code to allow faculty parking within the McLaren Road right -of -way; and
WHEREAS, the PUD Ordinance required the Benjamin School to enter into a Revocable
License and Indemnification Agreement relating to parking within the right -of -way so as to
preserve the Village's future usage of the right -of -way, if necessary, and to protect the Village
from liability associated with the School's use of Village property; and
WHEREAS, the Village Council determines that execution of a Revocable License and
Indemnification Agreement with the Benjamin School is in the best interests of the residents and
citizens of the Village of North Palm Beach.
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 a 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. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED THIS 22nd DAY OF AUGUST, 2013.
(Village Seal)
ATTEST:
4 / `!�
VILLAGE CLERK
ONE ►�_ GO
REVOCABLE LICENSE AND INDEMNIFICATION AGREEMENT
This Revocable License and Ind mnification Agreement (this "Agreement'), is made and
entered into this o294day of Cl s 2013, by and between VILLAGE OF NORTH
PALM BEACH, FLORIDA, 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 ( "Owner ") 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 ( "Licensee').
WITNESSETH:
WHEREAS, Licensee desires to license from Owner a portion of the property located within the
McLaren Road right -of -way, as identified and depicted on Exhibit A (the "ROW ") to allow for
faculty parking pursuant to Ordinance No. 2013 -06 approving The Benjamin School Planned
Unit Development ( "PUD Ordinance "); and
WHEREAS, Owner has agreed to allow Licensee's use of the ROW for such purposes, subject to
the terms and conditions of this License.
NOW THEREFORE, In consideration of the mutual covenants contained herein and other good
and valuable consideration, Owner and Licensee agree as follows:
1. License.
A. Uses. Subject to the terms hereof, Owner hereby grants and conveys to Licensee
a non - exclusive license on, upon, and across the ROW for the sole purpose of
parking of cars by the faculty of Licensee in accordance with Section 6.G of the
PUD Ordinance. The grant of this license is subject to all covenants, conditions,
restrictions, police powers, regulations and prior easements affecting the ROW.
B. License Term. Licensee shall be entitled to have use of the ROW pursuant to this
Agreement beginning on the date of the execution of this Agreement by both
parties (the "Effective Date "), subject to Licensee's compliance with Section 2
below. This License Term shall continue until terminated pursuant to Section 5
below.
C. Conditions. Licensee shall pave the ROW and properly mark the pavement for
parking spaces. The Licensee 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. Licensee shall, during the term of
the License, maintain all improvements located in the ROW in good repair.
2. Compliance with Laws. Licensee, 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 ROW during the License
Term, copies of which shall be delivered to Owner prior to the commencement of the
Page 1
License Term. Licensee 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 (including,
but not limited to, compliance with the requirements of all permits required during the
License Term).
3. Insurance. During the term of this Agreement, Licensee 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
$500,000 per occurrence and $1,000,000 in the aggregate for bodily injury and
property damage.
B. Workers' Compensation Insurance and Employer's Liability Insurance for all
employees as required by Florida Statutes.
C. Comprehensive Automobile Liability Insurance for hired and non -hired vehicles with
a combined single limit of no less than $500,000 for bodily injury and property
damage.
D. Licensee shall provide Owner 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 Owner. Licensee
shall include Owner as an additional insured on the Comprehensive Automobile
Liability Insurance and Automobile Insurance policies required by this Agreement.
4. Indemnification.
A. To the fullest extent permitted by applicable laws and regulations, Licensee shall
indemnify and save harmless and defend the Owner, 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 Licensee's use of the ROW pursuant to
this Agreement, including, but not limited to, those caused by or arising out of any
act, omission, negligence or default of the Licensee and /or its contractors, agents,
servants or employees.
B. Licensee shall not be required to indemnify the Owner, its officials, agents, servants
and employees when the occurrence results solely from the wrongful acts or
omissions of the Owner, 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 Owner or Licensee, nor
shall this Agreement be construed a waiver of sovereign immunity beyond the waiver
expressly provided in § 768.28, Florida Statutes.
Page 2
5. Termination.
A. For a period of five years from the Effective date set forth above, Owner may
terminate the License Agreement in the event that Owner determines, in its sole
discretion, that the ROW is needed for the expansion of McLaren Road and funding
is available to construct such improvements. In such event, Owner shall provide
written termination notice to Licensee. In the event of termination of the Agreement,
Licensee shall initiate an amendment to the PUD Ordinance to remove parking within
the ROW from the development plan within sixty (60) days of Owner's written notice
of termination. Irrespective of Owner's formal adoption of an amendment to the
PUD Ordinance to reflect removal of parking within the ROW, Licensee shall remove
all parking and other improvements from the ROW and restore the ROW to the
condition existing prior to the effective date of this Agreement within one hundred
and eight (180) days of Owner's written notice of termination.
B. At the expiration of five years from the Effective Date set forth above, either party
may thereafter terminate this License Agreement by providing written notice to the
other party, provided, however, that termination by Owner shall require a vote of the
Village Council. In the event of termination of the Agreement, Licensee shall initiate
an amendment to the PUD Ordinance to remove parking within the ROW from the
development plan within sixty (60) days of the written notice of termination.
Irrespective of Owner's formal adoption of an amendment to the PUD Ordinance to
reflect removal of parking within the ROW, Licensee shall remove all parking and
other improvements from the ROW and restore the ROW to the condition existing
prior to the effective date of this Agreement within one hundred and eighty (180)
days of the written notice of termination.
6. No Liens. Licensee hereby waives, and shall not permit to be filed or otherwise imposed,
any type of lien on the ROW or on any of Owner's property in connection with this
Agreement. If any such lien is filed, Licensee shall cause such lien to be released and
discharged within 15 calendar days, or provide Owner with a bond or other security
which shall be in an amount and in form and substance acceptable to Owner in its sole
discretion. Each contract Licensee 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 ROW or any of Owner's property in connection with this Agreement. Without
further consideration, Licensee will, and shall cause its subcontractors to, provide
additional waivers of lien from time to time upon request by Owner.
7. Assignment. Licensee shall not assign this Agreement (or any of its rights, duties or
remedies under this Agreement) without the prior written consent of Owner.
8. Entire Agreement. This Agreement, together with all exhibits and referenced documents,
constitutes the entire agreement between the parties regarding the ROW and supersedes
all prior understandings and negotiations (whether written or oral), with the exception of
the PUD Ordinance. 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 Licensee in this Agreement providing for performance
Page 3
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.
9. 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:
If to Owner: Village of North Palm Beach
Attn: Ed Green, Village Manager
501 U.S. Highway One
North Palm Beach, FL 44408
Telephone: (561) 841 -3361
Facsimile: (561) 848 -3344
with a copy to: Leonard G. Rubin, Esquire
Leonard G. Rubin, P.A.
701 Northpoint Parkway, Suite 209
West Palm Beach, Florida 33407
Telephone: (561) 721 -1683
Facsimile: (561) 686 -8764
If to Licensee: The Benjamin School
Attn: Robert Goldberg, Head of School
11000 Ellison Wilson Road
North Palm Beach, FL 33408
Telephone: (561) 626 -3747
Facsimile: (561) 691 -9017
Page 4
With a copy to: Alan J. Ciklin, Esquire
Ciklin Lubitz Martens & O'Connell
20th Floor
515 North Flagler Drive
West Palm Beach, Florida 33401
Telephone: (561) 832 -5900
Facsimile: (561) 833 -4209
10. Consent to Jurisdiction. Exclusive venue for any and all legal actions regarding this
Agreement shall be Palm Beach County, Florida. The parties hereby submit themselves
to the jurisdiction of Florida courts sitting in Palm Beach County, Florida.
11. 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.
IN WITNESS HEREOF, the parties have hereunto set their hands the day and year first written.
OWNER:
Village of North Palm Beach, Florida, a
municipal corporation of the State of Florida
By:
William L. Ma uel, Mayor
ATTEST:
By: 244 Z Z-4 Z
Melissa Teal, Village Clerk
Date: � ZZ 13
LICENSEE:
THE BENJAMIN PRIVATE SCHOOL,
INC., a private school corporation
By: � lr 1�4
Robert Goldberg
Title: betpo g7
Date: `�J /y113
Page 5
EXHIBIT A
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