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R07-048 1 2 3 4 5 6 7 8 ~ 11 ... 12 13 14 15 l6 17 " RESOLUTION NO. R07-6J1f1- A RESOLUTION OF THE CITY OF BO TON BEACH, FLORIDA, APPROVING AND AU ORIZING THE MAYOR AND CITY CLERK EXECUTE AN AGREEMENT FOR MITIGAT N OF ROADWAY IMPROVEMENTS BETWEEN T E CITY OF BOYNTON BEACH AND BOYNTON DUSTRIAL LLC., TO ACKNOWLEDGE THE 1\.RTIES' RIGHTS AND OBLIGATIONS WITH PECT TO CONSTRUCTION OF THE NORTHERN 1\.CCESS ROUTE AND THE PROPOSED PROJEC ; AND PROVIDING FOR AN EFFECTIVE DATE. 2006, the City Commission approved the proposed cess to the project along West Ocean Drive; and mission reconsidered their approval and on January 2, l8 2007, reinstated Developer's Development Order 19 without change to the esignated Truck Route; 20 Developer's right to proceed with " 2l development 0 the proposed project without regard to th City's plans to construct the 22 necessary r dway improvements to the Designated Truck Route the Northern Access 23 Route an sets forth the City's obligations with respect to the construction 24 25 WHEREAS, the City Commission upon recommendation of staff, deems 1 26 a ropriate to approve and authorize the Mayor and City Clerk to enter into the Agreement for 27 itigation of Roadway Improvements between the City of Boynton Beach and Boynton 28 29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF 30 THE CITY OF BOYNTON BEACH, FLORIDA, THAT: S:\CA\RESO\Agreements\Ocean 95 Mitigation of Roadway,doc " 1 Section 1. The foregoing "Whereas" clauses are hereby ratified and co lrmed as 2 being true and correct and are hereby made a specific part of this Resolutio 3 hereof. 4 Section 2. The City Commission of the City of Bo ton Beach, Florida does 5 hereby approve and authorize the Mayor and City Clerk t enter into the Agreement for 6 Mitigation of Roadway Improvements between the C' of Boynton Beach and Boynton 7 Industrial LLC, a copy of which is attached hereto made a part hereof as Exhibit "A". Section 3. This Resolution shall bec e effective immediately upon passage. 9 lO 11 12 13 14 l5 l6 17 l8 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 day of April, 2007. CI Y OF BOYNTON BEACH, FLORIDA Commissioner - Mack McCray Commissioner - Carl McKoy (Corporate Seal) .~~ ~ ,9,/ S:ICA IRESO\Agreements\Ocean 95 Mitigation of Roadway. doc WHEREAS, the City has agreed that it shall be responsible for all costs and other obligations associated with the construction of the Northern Access Route, including the acquisition of all necessary rights-of-way, except as provided in this Agreement, and that the Developer's plans to proceed with construction of the Proposed Project shall not be dependent upon the City's ability to implement the Northern Access Route; WHEREAS, the Developer has agreed that the Northern Access Route shall serve as the replacement designated truck route for the Proposed Project if and when the City constructs the new roadway, but until such time as the Northern Access Route is completed, the Designated Truck Route shall continue to be utilized as such; WHEREAS, the City has agreed to enter this Agreement with the Developer and authorized and directed its execution by the appropriate officials of the City; and WHEREAS, Developer has approved this Agreement and has duly authorized certain individuals to execute this Agreement on Developer's behalf. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby agree as follows: ARTICLE 1: PURPOSE OF AGREEMENT AND COOPERATION OF PARTIES. 1.01. Purpose of Agreement. The purpose of this Agreement is to acknowledge the Developer's right to proceed with development of the Proposed Project without regard to the City's plans to construct the necessary roadway improvements to the Designated Truck Route or the Northern Access Route. The Agreement also sets forth the City's obligations with respect to the construction of the Northern Access Route and provides that the Developer shall not be required to pay funds or otherwise participate in the construction of the Northern Access Route except as explicitly provided herein. 1.02. Cooperation of the Parties. The City and the Developer recognize that the successful development of the Proposed Project and each component thereof is dependent upon the continued cooperation of the City and the Developer, and each agrees that it shall act in a reasonable manner hereunder, provide the other party with complete and updated information from time to time, with respect to the conditions such party is responsible for satisfying hereunder and make its good faith reasonable efforts to ensure that such cooperation is continuous, the purposes of this Agreement are carried out to the full extent contemplated hereby. ARTICLE 2: CITY'S OBLIGATIONS 2.01. Timely Completion of Roadway Improvements. The City recognizes the importance of the timely completion of the Proposed Project, and time is deemed to ;Co 7 ,01 f AGREEMENT FOR MITIGATION OF ROADWAY IMPROVEMENTS between THE CITY OF BOYNTON BEACH, FLORIDA and BOYNTON INDUSTRIAL LLC THIS AGREEMENT for Mitigation of Roadway Improvements ("Agreement") is made as of this day of , 2007, by and between THE CITY OF BOYNTON BEACH, FLORIDA, a Florida municipal corporation (the "City"), and BOYNTON INDUSTRIAL LLC, a Florida limited liability company (the "Developer"). WHEREAS, the Developer submitted an application to the City for approval of plans to construct approximately 133,911 square feet of warehouse/light industrial "flex- space" on certain property within the City's M-l Light Industrial zoning district (the "Proposed Project"). The property is located south of the east end of West Ocean Avenue and situated between the C.S.x. Railroad tracks and right-of-way for Interstate 95 (the "Project Site"). The address of the Project Site is 5l4-5l8 West Ocean Avenue, Boynton Beach, Florida. WHEREAS, the City has determined that the Proposed Project is consistent with the City's Comprehensive Plan and Land Development Regulations; WHEREAS, at a duly called public hearing on October l7, 2006, the City Commission approved the Proposed Project with a designated truck access to the Project Site along West Ocean Drive, as shown on Exhibit A (the "Designated Truck Route"), and granted a Development Order in favor of the Developer; WHEREAS, the City Commission subsequently voted to reconsider approval of the Proposed Project and to explore options for alternative truck routes; WHEREAS, at a duly called public meeting on January 2, 2007, the City Commission re-approved the Proposed Project and reinstated the Developer's Development Order without change to the Designated Truck Route; WHEREAS, as a condition of approval, the Developer has agreed to pay funds to the City for certain off-site roadway improvements to the Designated Truck Route; WHEREAS, on January 2, 2007, the City Commission also passed a motion to proceed with constructing a new roadway that would extend Industrial Avenue along the north side of Boynton Beach Boulevard and pass underneath Boynton Beach Boulevard to connect with Northwest 6th Street near the Project Site ("Northern Access Route"); be of the essence. The City considers this Agreement as overall authority for the Developer to proceed to obtain all required pe~its and eerti~~~t~~. of ?CCUPanC~, . .~n~ agrees to p~l'ate:with an (expeditious permitting and insp(e<;tiGnprGgramforthe Pl'()posed 1. The City agrees to use its best efforts to complete either the necessary roadway improvements to the Designated Truck Route or the Northern Access Route on or before the date of issuance of the final certificate of occupancy for the Proposed Project. However, the Developer's right to obtain a certificate of occupancy for the Proposed Project shall not be conditioned in any manner upon the City's completion of either the improvements to the Designated Truck Route or the Northern Access Route. JL - Any expeditious review is not part of an agreement about off site improvements. Further, the agreement does not provide standards whereby an expeditious review can be measured. JL - Concerned about references to timing of City construction of the northern route. Concerns regarding overall process and timing for City construction. Jeffs concerns may not be pertinent to this agreement though. What happens if the developer decides to delay constmction like numerous other projects have been delayed? The City will certainly not want to be expending dollars only to have the project delayed. I recommend that the City proceed with design of the northern access route but hold off on property acquisition and construction until such time that building pennits are issued for the development and construction of the development begins. I am concerned that the City could expend significant dollars on this project only to the have the developer abandon the project due to market conditions. This is typically why developers are responsible to constmct all off site improvements. 2.02. Acquisition of Rights-of-Way for Northern Access Route. The City shall be solely responsible for purchasing the required property and obtaining all rights- of-way for the Northern Access Route. 2.03. Construction of Northern Access Route. The City shall be solely responsible for paying all costs associated with the design and construction of the Northern Access Route. 2.04. Design Coordination. The City agrees to reasonably cooperate and coordinate the design of the Northern Access Route adjacent to the Project Site, such that the design of the Northern Access Route integrates in a reasonable manner with the design of the Proposed Project. 2.05. Construction Sequencing. The City shall construct right of way improvements to the Designated Truck Route, or the Northem Access Route, as applicable, in a manner and fashion which will not unreasonably restrict access to the Project Site on or after the date the Developer commences construction of the Proposed Proj ect. 2.06. Permits. The City will COOpel"~t~andlcool'dinate with the Developer with regard to a.l[lpe~lt~pplications.. for the Proposed:::Rl'oject, including those to state agencies, and will facilitate or expedite, to the greatest extent possible, the permit approval process for the Proposed Project without regard to the design or construction of the improvements to the Designated Truck Route or the Northern Access Route. JL - Not material to an agreement about off site improvements being constructed by the City. 2.07. Use of Northern Access Route. In the event the City builds the Northern Access Route, the City shall mark the Northern Access Route with appropriate signage as being the newly designated truck route to the Project Site, butltheI1!>evelopetlsnallll.notlbe tequ~edltoe:nforcesuchusellblYvenicl~saccessing the Project Site. JL - The Developer should be required to define the truck route as part of their property sales transactions. 2.08. City Covenants. The City shall not permit, commit, or suffer any waste or iInpairmenttotheProject$ite, nor shall the City request or recommend any rezoning of the Project Site, or any part thereof, which will prevent or adversely affect the development of the Proposed Project. The City will not enact or adopt or urge or encourage the adoption of any ordinances, resolutions, rules regulations or orders or approve or enter into any contracts or agreements, including issuing any bonds, notes, or other forms of indebtedness, that will result in any provision of this Agreement to be in violation thereof. JLm- Paragraph looks very restrictive or could be used against the City for even minor perceptions of "impairment to the Project Site." 2.09. City Authority Preserved. The City's duties, obligations, or responsibilities under any section of this Agreement shall not affect the City's right, duty, obligation, authority and power to act in its governmental or regulatory capacity in accordance with applicable laws, ordinances, codes or other building regulations. Notwithstanding any other provision of this Agreement, any required permitting, licensing or other regulatory approvals by the City shall be subject to the established procedures and substantive requirements of the City with respect to review and permitting of a project of a similar or comparable nature, size and scope. In no event shall the City, due to any provision of this Agreement, be obligated to take any action concerning regulatory approvals except through its established procedures and in accordance with applicable provisions oflaw. ARTICLE 3: DEVELOPER'S OBLIGATIONS 3.01. Development of the Proposed Project. If the Developer elects to proceed with developi~~th~~ropos~d P:oj~ct, theProBosedProjectshallbe built in accordance with the plans and specifications approvedbYiCity COtntnlssion for the "Ocean 95 Exchange Park," dated _ by (City File Number NWSP 06-020), as such plans and specifications may be modified during the permitting process. JL - City Commission did not approve plans and specifications therefore this paragraph should be stricken. 3.02. Developer's Share of Roadway Improvements. If the developer elects to proceed with development of the Proposed Project, the Developer shall be responsible for paying $lI5,000 to the City for off-site roadway improvements ("Developer's Share"). The Developer's Share represents the difference between a total cost of $130,000 for all off-site roadway improvements to the Designated Truck Route and the City's responsibility of paying $15,000 for the resurfacing of Ocean Drive. If the developer elects to proceed with development of the Proposed Project, payment of the Developer's Share shall be made to the City upon the City's commencement of construction of the improvements to the Designated Truck Route, the City's commencement of construction ofthe Northern Access Route, or at the time of the City's issuance of a certification of occupancy to the Developer, whichever occurs first. JL - Both paragraphs 3.01 and 3,02 reference the words "If the developer elects to proceed", This language strengthens my concern about the City being too far ahead of the developer with our off site improvements. See comments #3 above, 3.03 Supercedes Development Order. The Developer's obligations set forth in Section 3.02 of this Agreement shall supercede and replace Item # 2, "Public Works- Traffic," on Exhibit "C," "Conditions of Approval," attached to the City's Development Order for the Proposed Project. ARTICLE 4: DEFAULT; VENUE 4.01. Default. In the event the City or the Developer fails to perform or comply with any material provision of this Agreement applicable to it, then the non-defaulting party shall be entitled to initiate an action at law or equity seeking all remedies to which it is lawfully entitled. The non-defaulting party's suspension of, or delay in, the performance of its obligations while the other party is in default of its obligations hereunder shall not be deemed to be an event of default. 4.02. Non Action on Failure to Observe Provisions of this Agreement. The failure of the City or the Developer to promptly or continually insist upon strict performance of any term, covenant, condition or provision of this Agreement, or any exhibit hereto, or any other agreement, instrument or document of whatever form or nature contemplated hereby shall not be deemed a waiver of any right or remedy that the City or the Developer may have, and shall not be deemed a waiver of a subsequent default or nonperformance of such term, covenant, condition or provision. 4.03. Venue; Submission to Jurisdiction. (a) For purposes of any suit action, or other proceeding arising out of or relating to this Agreement, the parties hereto acknowledge, consent to, and agree that venue thereof is Palm Beach County, Florida. (b) Each party to this Agreement hereby submits to the jurisdiction of the State of Florida, Palm Beach County and any federal courts having jurisdiction, for the purposes of any suit, action, or other proceeding arising out of or relating to this Agreement and hereby agrees not to assert by way of a motion as a defense or otherwise that such action is brought in an inconvenient forum or that the venue of such action is improper or that the subject matter thereof may not be enforced in or by such courts. (c) If at any time during the term of this Agreement the Developer (or any of its permitted successors and assigns) is not a resident of Florida and, to the extent required by law, does not register with the State of Florida the identity and location within the State of its registered agent for purposes of service of process and, otherwise has no officer, employee or other agent available for service of process within the State of Florida, the Developer hereby designates the Secretary of State, State of Florida, its agent for the service of process in any court action between it and the City arising out of or relating to this Agreement, and such service shall be made as provided by the laws of the State of Florida for service upon a non-resident; provided, however, that at the time of service on the Florida Secretary of State, a copy of such service shall be delivered to the Developer at the address for notices as provided in Section 5.04. 4.04. Applicable Law and Construction. The laws of the State of Florida shall govern the validity, performance and enforcement of this Agreement. This Agreement has been negotiated by the City and the Developer and the Agreement, including, without limitation, the Exhibits, shall not be deemed to have been prepared by the City or the Developer, but by both equally. ARTICLE 5: MISCELLANEOUS 5.01. Assignments by Developer. The Developer may sell, convey, assign or otherwise dispose of any or all of its right, title, interest and obligations in and to the Proposed Project or the Project Site, or any part thereof, provided that, to the extent the purchaser or assignee wishes to exercise the rights of the Developer under this Agreement, such purchaser or assignee must assume the Developer's obligations under and must agree to be bound by the terms of this Agreement. If the assignee of the Developer's right, title, interest and obligations in and to the Project, or any part thereof assumes all of the Developer's obligations hereunder for the Project, or that part subject to such sale, conveyance, assignment or other disposition, then the Developer shall be released from all such obligations hereunder which have been so assumed by the assignee, and the City agrees to execute an instrument evidencing such release, which shall be in recordable form. JL - VERY IMPORTANT. This agreement should expire if the City Commission Development Order expires. Should the Dcvelopmcnt Order expire, OR NOT BE EXTENDED by the City Commission, then this agrecment shall become null and void regardless of whether the developer has assigned his rights according to 5.01, 5.02. Assignments by the City. The City shall have no right to assign its rights under this Agreement to any person except upon the prior written consent of the Developer. 5.03. Successors and Assigns. The terms herein contained shall bind and inure to the benefit of the City, and its successors and assigns, and the Developer and, as applicable to the parties comprising Developer, their personal representatives, trustees, heirs, successors and assigns, except as may otherwise be specifically provided herein. 5.04. Notices. All notices, demands, requests for approvals or other communications given by either party to another shall be in writing, and shall be sent by registered or certified mail, postage prepaid, return receipt requested or by courier service, or by hand delivery to the office for each party indicated below and addressed as follows: To the Developer: Edward Masi Boynton Industrial LLC 565 East Hillsboro Boulevard Deerfield Beach, Florida 3344l with copies to: Charles L. Siemon, Esquire Siemon & Larsen, P .A. Mizner Park 433 Plaza Real Suite 339 Boca Raton, Florida 33432 To the City: City of Boynton Beach, Florida P.O. Box 310 Boynton Beach, Florida 33425-03l 0 Attn: City Manager with copies to: James Cherof, Esquire City Attorney Goren Cherof Doody & Ezrol, P.A. 3099 East Commercial Boulevard Suite 200 Fort Lauderdale, Florida 33308-4311 Notices given by courier service or by hand delivery shall be deemed received upon delivery, and notices given by mail shall be deemed received on the third (3rd) business day after mailing. Refusal or failure by any person to accept delivery of any notice delivered to the office at the address indicated above (or as it may be changed) shall be deemed to have been an effective delivery as provided in this Section. The addresses to which notices are to be sent may be changed from time to time by written notice delivered to the other parties. Until notice of change of address is received as to any particular party hereto, all other parties may rely upon the last address given. 5.05. Complete Agreement. This Agreement, and all the terms and provisions contained herein, including, without limitation, the Exhibits hereto, constitute the full and complete agreement between the parties hereto to the date hereof, and supersedes and controls over any and all prior agreements, understandings, representations, correspondence and statements, whether written or oral. Any provision of this Agreement shall be read and applied in pari materia with all other provisions hereof. 5.06. Amendment. This Agreement cannot be changed or revised except by written amendment signed by all parties hereto. 5.07. Captions. The article and section headings and captions of this Agreement and the table of contents preceding this Agreement are for convenience and reference only and in no way define, limit, describe the scope or intent of this Agreement or any part thereof, or in any way affect this Agreement or construe any article, section, subsection, paragraph or provision hereof. 5.08. Exhibits. Each Exhibit referred to and attached to this Agreement is an essential part of this Agreement. The Exhibits and any amendments or revisions thereto, even if not physically attached hereto shall be treated as if they are part of this Agreement. 5.09. Public Purpose. The parties acknowledge and agree that this Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of the City's power and authority. 5.10. Effective Date. The Effective Date shall be the date as of which the last party to this Agreement affixes that party's signature to this Agreement, which shall also serve as the effective date for the City's Development Order for the Proposed Project. IN WITNESS WHEREOF, the parties hereto have set their hands and their respective seals below. [signature pages to follow] CITY OF BOYNTON BEACH, FLORIDA Attest: By: Janet Prainito, City Clerk By: Jerry Taylor, Mayor Approved as to form: By: James Cherof City Attorney State of Florida ) County of Palm Beach ) The foregoing instrument was acknowledged before me this day of , 2007, by Jerry Taylor and Janet Prainito, Mayor and City Clerk, respectively, for the City of Boynton Beach, Florida, on behalf ofthe City. Signature of Notary Public My Commission Expires: Printed, typed or stamp BOYNTON INDUSTRIAL LLC Attest: By: By Edward Masi as Managing Member Genesis Boynton Industrial LLC Print Name as Managing Member Boynton Industrial LLC State of Florida County of Palm Beach ) ) The foregoing instrument was acknowledged before me this day of , 2007, by Edward Masi as Managing Member of Genesis Boynton Industrial LLC, a Florida limited liability company, as Managing Member of Boynton Industries LLC, a Florida limited liability company, who is personally known to me or who produced as identification. Signature of Notary Public My Commission Expires: Printed, typed or stamp