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R26-025 RESOLUTION NO. R26-025 1 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON 2 BEACH, FLORIDA, APPROVING A UTILITY EASEMENT 3 ENCROACHMENT AGREEMENT BETWEEN THE CITY OF BOYNTON 4 BEACH AND BB1 DEVELOPMENT, LLC FOR THE HYPERION PROJECT 5 TO INSTALL PRIVATE WATER SERVICE LINES WITHIN A 10-FOOT 6 UTILITY EASEMENT DEDICATED TO THE CITY OF BOYNTON BEACH; 7 AND FOR ALL OTHER PURPOSES. 8 9 WHEREAS, the City maintains a 72-inch storm sewer along NE 6th Court, adjacent to the 10 BB 1 Development, LLC ("Developer") property; and 11 WHEREAS, the Developer's property line conflicts with the existing storm sewer location, 12 requiring a 10-foot utility easement extending inward from the property line pursuant to the City's 13 Land Development Regulations; and 14 WHEREAS, Developer has dedicated a 10-foot utility easement to the City by Plat, which 15 easement is depicted on the "Ocean One Plat" recorded in the Public Records of Palm Beach 1r, County, Florida (the "Utility Easement"); and 17 WHEREAS, the Developer has requested permission to install private utility lines within 18 the Utility Easement, specifically an 8-inch private fire line, a 4-inch water service line, and a 2-inch 10 water service line (the "Private Utility Lines"); and 20 WHEREAS, the Developer has demonstrated the infeasibility of relocating these private 21 utilities outside the Utility Easement area; and 22 WHEREAS, the Parties desire to establish protocols for shared use of the Utility Easement 23 while protecting the City's storm sewer infrastructure and maintenance access; and 24 WHEREAS, the City Commission, upon the recommendation of staff, has deemed it in the 25 best interests of the City's citizens and residents to approve a Utility Easement Encroachment 26 Agreement between the City and BB1 Development, LLC for the Hyperion Project to install private 27 water service lines within a 10-foot utility easement dedicated to the City. 28 29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON 30 BEACH, FLORIDA, THAT: 31 SECTION 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as RESOLUTION NO. R26-025 32 being true and correct and are hereby made a specific part of this Resolution upon adoption. 33 SECTION 2. The City Commission of the City of Boynton Beach, Florida, does hereby 34 approve a Utility Easement Encroachment Agreement between the City and BB1 Development, 35 LLC for the Hyperion Project (the "Agreement"), in form and substance similar to that attached as 36 Exhibit A. SECTION 3. The City Commission of the City of Boynton Beach, Florida, hereby 38 authorizes the Mayor to execute the Agreement. The Mayor is further authorized to execute any 39 ancillary documents as may be necessary to accomplish the purpose of this Resolution. 40 SECTION 4. Upon execution of the Agreement by the City, the City Clerk shall record 41 the Agreement in the Public Records of Palm Beach County. The City Clerk shall provide a copy 42 of the recorded Agreement to Milot Emile. 43 SECTION 5. This Resolution shall take effect in accordance with the law. 44 [SIGNATURES ON THE FOLLOWING PAGE] 45 RESOLUTION NO. R26-025 46 PASSED AND ADOPTED this 11 -k`^ day of t,47rvaf 2026. 47 CITY OF BOYNTON BEACH, FLORIDA 48 YES NO 49 Mayor— Rebecca Shelton ✓ 50 51 Vice Mayor—Woodrow L. Hay ✓ 52 53 Commissioner—Angela Cruz V 54 55 Commissioner-Thomas Turkin ✓ 56 57 Commissioner-Aimee Kelley 58 59 VOTE 5 -o 60 ATTEST: 61 62 fir - ` '� 63cprMaylee De Jesus, MPA, M1v�C R-becca Shelton 64 City Clerk Mayor 65 66 APPROVED AS TO FORM: 67 (Corporate Seal) 68 69 Aata. 1Wiri 70 Shawna G. Lamb 71 City Attorney 3/19/26, 12:46 PM Landmark Web Official Records Search CFN 20260078882 OR BK 36355 PG 1563 RECORDED 3/5/2026 11:03 AM Palm Beach County,Florida Michael A.Caruso,Clerk Pgs: 1563- 1572:(10pgs) UTILITY EASEMENT ENCROACHMENT AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND BB1 DEVELOPMENT,LLC FOR THE HYPERION PROJECT LOCATED AT 114 N. FEDERAL HIGHWAY,BOYNTON BEACH, FLORIDA THIS UTILITY EASEMENT ENCROACHMENT AGREEMENT(the "Agreement") is made as of cC' c4„, 202k, by and between the Boynton Beach, a Florida municipal corporation (the "City") whose address is 100 E. Ocean Avenue rida 33435, and BB1 Development, LLC, a Delaware limited liability company authorized to do busi ess in the State of Florida ("Developer"),whose address is 888 Biscayne Blvd.,Ste. 101,Miami, FL 33132(each a"Party" and collectively the"Parties"). RECITALS WHEREAS,the City maintains a 72-,inch storm sewer along NE 6th Court,adjacent to Developer's property;and WHEREAS, the Developer's property it pe4onflicts with the existing storm sewer location, requiring a 10-foot utility easement extending inward.frQm the property line pursuant to the City's Land Development Regulations; and <( , WHEREAS, Developer has dedicated a 10-foo, easement to the City by Plat, which easement is depicted on the "Ocean One Plat" recorded th Public Records of Palm Beach County, Florida (the "Utility Easement");and WHEREAS,the Developer has requested permission to install private utility lines within the Utility Easement, specifically an 8-inch private fire line, a 4-inch water service line, and a 2-inch water service line (the "Private Utility Lines");and WHEREAS, the Developer has demonstrated the infeasibility of relocating these private utilities outside the Utility Easement area; and WHEREAS,the Parties desire to establish protocols for shared use of the Utility Easement while protecting the City's storm sewer infrastructure and maintenance access. NOW,THEREFORE,in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1.GRANT OF PERMISSION The City hereby grants the Developer permission to install and maintain the following private utilities within the 10-foot Utility Easement:one(1)8-inch private fire line,one(1)4-inch water service line,and one (1) 2-inch water service line (the "Private Utility Lines"). This permission is expressly subject to all terms and conditions set forth in this Agreement and does not constitute a waiver of any City rights or interests in the Utility Easement area. Hyperion Utility Easement Agreement Rev.9.22.25 https://erec.mypalmbeachclerk.com/search/index?theme=.blue&section=searchCriterialnstrumentNumber&quickSearchSelection=# 1/1 UTILITY EASEMENT ENCROACHMENT AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND BB1 DEVELOPMENT, LLC FOR THE HYPERION PROJECT LOCATED AT 114 N. FEDERAL HIGHWAY,BOYNTON BEACH, FLORIDA THIS UTILITY EASEMENT ENCROACHMENT AGREEMENT(the "Agreement") is made as of Ve b (.{, 2024, by and between the City of Boynton Beach, a Florida municipal corporation (the "City") whose address is 100 E. Ocean Avenue, Florida 33435, and BB1 Development, LLC, a Delaware limited liability company authorized to do business in the State of Florida ("Developer"),whose address is 888 Biscayne Blvd.,Ste. 101, Miami, FL 33132 (each a "Party" and collectively the"Parties"). RECITALS WHEREAS,the City maintains a 72-inch storm sewer along NE 6th Court,adjacent to Developer's property; and WHEREAS, the Developer's property line conflicts with the existing storm sewer location, requiring a 10-foot utility easement extending inward from the property line pursuant to the City's Land Development Regulations; and WHEREAS, Developer has dedicated a 10-foot utility easement to the City by Plat, which easement is depicted on the "Ocean One Plat" recorded in the Public Records of Palm Beach County, Florida (the"Utility Easement"); and WHEREAS,the Developer has requested permission to install private utility lines within the Utility Easement, specifically an 8-inch private fire line, a 4-inch water service line, and a 2-inch water service line (the "Private Utility Lines"); and WHEREAS, the Developer has demonstrated the infeasibility of relocating these private utilities outside the Utility Easement area; and WHEREAS, the Parties desire to establish protocols for shared use of the Utility Easement while protecting the City's storm sewer infrastructure and maintenance access. NOW,THEREFORE,in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. GRANT OF PERMISSION The City hereby grants the Developer permission to install and maintain the following private utilities within the 10-foot Utility Easement:one(1)8-inch private fire line,one (1)4-inch water service line,and one (1) 2-inch water service line (the "Private Utility Lines"). This permission is expressly subject to all terms and conditions set forth in this Agreement and does not constitute a waiver of any City rights or interests in the Utility Easement area. Hyperion Utility Easement Agreement Rev. 9.22.25 2. DEVELOPER RESPONSIBILITIES AND LIABILITY a. Developer acknowledges and agrees that it is solely responsible for all costs associated with the installation, operation, maintenance, repair, and replacement of the Private Utility Lines, including but not limited to any damage to the Private Utility Lines that may occur during City storm sewer maintenance,repair,or emergency operations,and all costs for repair,replacement, or relocation of Private Utility Lines necessitated by City storm sewer work. b. Developer shall provide the City with current emergency contact information for 24-hour response capabilities, including primary and backup contacts with phone numbers and email addresses, and shall update such contact information within ten (10) days of any changes, ensuring that emergency contacts have full authority to make immediate decisions regarding utility shutoffs, repairs, and site access. c. Developer shall submit to the City,within thirty(30)days of this Agreement's execution,detailed written procedures that include step-by-step protocols for isolating and shutting off each private utility line, location of all shutoff valves and control mechanisms, estimated timeframes for isolation procedures, emergency repair protocols and contractor contact information, and procedures for coordination with City personnel during storm sewer emergencies. d. Construction Phase Requirements. Developer shall implement comprehensive storm sewer protection measures during all construction activities, including, but not limited to, excavation, shoring/bracing, and other related foundation work. Prior to commencement of any construction activities, Developer shall submit to the City for written approval a detailed Construction Storm Sewer Protection Plan prepared by a licensed structural engineer registered in the State of Florida. This plan shall specifically address mitigation strategies for ground vibrations, soil displacement, differential settlement, and structural support methods to ensure the integrity of the City's 72-inch storm sewer throughout the construction process. e. Construction Contingency and Emergency Response. Developer shall provide a comprehensive Storm Sewer Emergency Response Plan that includes immediate repair procedures for any damage discovered during construction,emergency bypass options to maintain stormwater flow during repairs, pre-qualified emergency contractors available on 24-hour call, and a detailed sequence of actions to be taken upon discovery of any storm sewer compromise.This plan shall identify specific equipment and materials to be maintained on-site or readily available, including emergency pumping equipment, temporary piping systems, and structural repair materials. In the event of any damage to the storm sewer during construction, Developer shall immediately cease all construction activities within 50 feet of the affected area, notify the City within two hours of discovery, implement emergency containment measures to prevent further damage, and initiate approved repair procedures within 24 hours. Developer acknowledges that time is of the essence in storm sewer repairs and agrees to prioritize such repairs over all other construction activities. 3. INDEMNIFICATION AND HOLD HARMLESS Developer shall defend, indemnify, and hold harmless the City, its officers, employees, agents, and contractors (collectively, "Indemnified Party") from and against any and all claims, demands, actions, Hyperion Utility Easement Agreement Rev.9.22.25 suits, damages, liabilities, losses, settlements, judgments, costs, and expenses (including reasonable attorneys'fees and costs)sustained by the Indemnified Party arising out of or resulting from the presence of Developer's Private Utility Lines within the Utility Easement, any interference with City storm sewer operations caused by the Private Utility Lines, any damage to persons or property resulting from Developer's utilities or their installation, maintenance, or operation, any delay in City storm sewer maintenance or repair operations caused by the Private Utility Lines, Developer's performance or breach of this Agreement, acts or omissions, negligence, recklessness, or intentional wrongful conduct by Developer, its agents, employees, subcontractors, and Developer's failure to take out and maintain insurance as required under this Agreement. Developer shall pay all claims and losses in connection therewith and shall investigate and defend all claims, suits, or actions of any kind or nature against an Indemnified Party,where applicable, including appellate proceedings,and shall pay all costs,judgments, and attorneys' fees which may issue thereon. The indemnification shall specifically include all costs associated with storm sewer damage during construction, including emergency repair costs, temporary bypass system installation and operation, additional engineering assessments required due to construction impacts, increased inspection and monitoring costs, and any regulatory fines or penalties resulting from stormwater system disruption. Developer's indemnification obligations shall extend to cover any consequential damages resulting from storm sewer failure,including but not limited to flooding damage to adjacent properties, environmental remediation costs, and business interruption claims. Developer shall be strictly liable for any damage to the storm sewer system occurring during the construction period, regardless of fault or negligence,and shall bear all costs associated with restoration of the storm sewer to its pre-construction condition or better.This strict liability provision recognizes the critical importance of the storm sewer infrastructure and the inherent risks associated with construction activities in close proximity to this essential municipal utility.The obligations of this section shall survive indefinitely regardless of the termination of the Agreement, and shall be binding upon Developer's successors, assigns, heirs, and personal representatives. 4. PRIORITY OF CITY INFRASTRUCTURE AND ACCESS REQUIREMENTS The Parties acknowledge that the City's 72-inch storm sewer has absolute priority within the Utility Easement, and Developer's private utilities are expressly subordinate to the storm sewer infrastructure and the City's maintenance access needs. Developer shall ensure that its Private Utility Lines do not impede City access to the storm sewer and shall immediately relocate any Private Utility Lines upon the City's reasonable request to facilitate storm sewer maintenance or repair,with all costs of such relocation to be borne solely by Developer. Developer acknowledges that the City may need to excavate, repair,or replace the storm sewer with little or no advance notice during emergency situations, and Developer waives any claim for damages resulting from such emergency work. 5. CONSTRUCTION, INSTALLATION,AND DOCUMENTATION REQUIREMENTS Developer shall obtain all necessary permits and approvals for private utility installation and comply with all applicable federal,state,and local codes, regulations,and City standards. Private Utility Lines shall be installed in accordance with City engineering standards and specifications, approved construction drawings stamped by a licensed professional engineer registered in the State of Florida, industry best practices for utility installation in shared easements, and all applicable Florida Department of Environmental Protection and Florida Department of Transportation standards where applicable. Developer shall provide the City with as-built drawings prepared by a Florida-licensed surveyor within thirty(30) days of installation completion, showing exact locations,depths, specifications, and materials of all Private Utility Lines. Additionally, post-construction verification shall include diving interior video Hyperion Utility Easement Agreement Rev.9.22.25 inspection and structural engineering certification that construction activities have not compromised the storm sewer system. Developer shall maintain daily construction logs specifically documenting all activities within 25 feet of the storm sewer, including pile driving operations, excavation work, heavy equipment movement, and any observations of ground settlement or structural movement. These logs shall be provided to the City weekly during active construction and shall be certified by the project's supervising engineer. 6. ONGOING OBLIGATIONS AND COMPLIANCE a. Developer shall maintain unobstructed access to the Utility Easement and shall not install any permanent structures, landscaping, or other improvements that would impede City maintenance vehicles,equipment, or personnel access to the storm sewer infrastructure. b. Developer shall inspect the Private Utility Lines annually by a qualified professional and provide written reports to the City documenting their condition, any maintenance performed, and compliance with all applicable regulations. The City reserves the right to inspect Developer's Private Utility Lines and their compliance with this Agreement at any reasonable time with twenty-four (24) hour written notice, except during emergency situations when immediate access may be required. c. The City reserves the right to station an inspector on-site during all construction activities that may impact the storm sewer. The City's inspector shall have authority to immediately halt construction activities if conditions pose a risk to storm sewer integrity, and Developer shall comply with all directives from the City's inspector regarding protection measures and construction sequencing. Developer shall provide the City with 48-hour advance notice of any construction activities within 25 feet of the storm sewer centerline, and shall coordinate such activities with City personnel to ensure appropriate oversight and protection measures are in place. The City may require modified construction methods or additional protection measures based on real-time conditions and monitoring results. d. Developer shall maintain accurate records of all maintenance, repairs, and modifications to the Private Utility Lines and shall make such records available to the City upon request. 7. INSURANCE AND BONDING REQUIREMENTS Developer shall maintain,at its sole expense throughout the term of this Agreement,commercial general liability insurance with minimum limits of two million dollars ($2,000,000) per occurrence and four million dollars ($4,000,000) aggregate, naming the City as an additional insured on a primary and non- contributory basis. Developer shall also maintain professional liability insurance with minimum limits of one million dollars($1,000,000)and property insurance covering the full replacement value of the Private Utility Lines.All insurance policies shall be issued by insurers licensed to do business in the State of Florida with a minimum A.M. Best rating of A-VII,and insurance certificates and endorsements shall be provided to the City annually and upon any policy renewal or modification. Developer shall also provide a performance bond or letter of credit in the amount of five hundred thousand dollars($500,000)to secure Developer's obligations under this Agreement, including potential utility relocation costs, and to secure potential storm sewer repair and remediation costs during construction.This bond shall remain in effect from the commencement of construction until twelve months after completion of all construction Hyperion Utility Easement Agreement Rev.9.22.25 activities,or until the City certifies that the storm sewer has not been adversely affected by construction activities, whichever occurs first. 8.TERM, DEFAULT,AND TERMINATION a. Term.This Agreement shall become effective upon execution by all Parties(the "Effective Date") and shall remain in effect for so long as Developer's Private Utility Lines remain within the Utility Easement area, unless terminated earlier in accordance with the provisions hereof. b. Events of Default. Developer shall be deemed in material default of this Agreement upon the occurrence of any of the following events: failure to maintain required insurance coverage or bonding as specified in Section 7, or failure to provide required insurance certificates or endorsements within thirty (30) days of City's written request; failure to provide or update emergency contact information as required in Section 2,failure to respond within four(4) hours during City-declared storm sewer emergencies, or failure to isolate Private Utility Lines within timeframes specified in emergency procedures; installation of any structures or improvements that impede City access to storm sewer infrastructure, failure to relocate Private Utility Lines upon City's reasonable request as specified in Section 4, or any action that materially interferes with City storm sewer operations; violation of any environmental regulation resulting in regulatory action against the City,failure to obtain or maintain required permits for private utility operations,or failure to provide required annual inspection reports for more than sixty(60)days after due date; or if Developer becomes insolvent, makes an assignment for the benefit of creditors, files for bankruptcy protection, or fails to pay any amounts owed to City under this Agreement within thirty(30) days of written demand. c. Notice and Cure Period. Except for emergency situations or financial events described in Section (b), the City shall provide the Developer with written notice of any claimed default. Developer shall have thirty (30) days from receipt of such notice to cure the default, provided that if the default cannot reasonably be cured within thirty (30) days, Developer may extend the cure period by providing City with a written plan for cure acceptable to City, acting reasonably, and diligently pursuing such cure. d. City's Remedies Upon Default. Upon Developer's uncured default,City may exercise any or all of the following remedies, which are cumulative and not exclusive: perform necessary emergency work at Developer's expense, with costs secured by the performance bond; revoke permission for the Private Utility Lines within the Utility Easement upon fifteen (15) days written notice for emergency situations, or thirty (30) days for non-emergency defaults; require immediate relocation of the Private Utility Lines at Developer's sole cost and expense; draw upon performance bond or letter of credit to secure compliance or cover City's costs;exercise any legal or equitable remedies available at law or in equity; or terminate this Agreement in accordance with Section (e) below. e. Termination. This Agreement may be terminated at any time by mutual written agreement of both Parties; by City upon thirty(30)days written notice following Developer's uncured material default (fifteen (15) days for emergency situations affecting storm sewer operations); by Developer upon ninety (90) days written notice to City, provided Developer removes all Private Utility Lines from the Utility Easement area at its sole cost and restores the Utility Easement to its original condition; automatically upon Developer's permanent cessation of use of the Private Hyperion Utility Easement Agreement Rev.9.22.25 Utility Lines for a period exceeding twelve(12)months;or by either Party if a force majeure event continues for more than one hundred twenty(120)consecutive days. f. Effect of Termination. Upon termination of this Agreement, Developer shall, at its sole cost and expense, remove all Private Utility Lines from the Utility Easement area within sixty(60)days of termination, unless City agrees in writing to allow utilities to remain,and shall restore the Utility Easement area to substantially the same condition as existed before installation of the Private Utility Lines, including proper backfill, compaction, and surface restoration. The following provisions shall survive termination:all indemnification obligations under Section 3,all insurance requirements for claims arising from pre-termination activities,all payment obligations accrued prior to termination,environmental compliance and remediation obligations,and confidentiality obligations,if any.Any performance bond or letter of credit shall remain in effect until Developer completes all removal and restoration obligations to City's reasonable satisfaction. g. No Waiver.City's failure to declare a default or exercise any remedy shall not constitute a waiver of such default or City's right to declare a subsequent default or exercise remedies. Any waiver must be in writing and signed by City's authorized representative. h. Dispute Resolution Before Termination. Before exercising termination rights under Section(e)for cause, the Parties agree to meet and confer in good faith for a period of fifteen (15) days to attempt to resolve any disputes, unless emergency circumstances require immediate action to protect public health, safety,or City infrastructure. 9. COMPLIANCE WITH LAWS AND REGULATIONS a. Developer hereby warrants and agrees that at all times material to the Agreement, Developer shall perform its obligations in compliance with all applicable federal,state,and local laws, rules, and regulations. b. Developer acknowledges that any work within public rights-of-way or easements may require additional permits from the Florida Department of Transportation and shall comply with all laws applicable to utility installations. c. The Parties acknowledge that this Agreement may be subject to Florida's Public Records Law (Chapter 119, Florida Statutes), and Developer consents to disclosure of this Agreement and related documents as required by law. d. Developer shall ensure that the installation and maintenance of the Private Utility Lines comply with all applicable environmental regulations,including,but not limited to,the National Pollutant Discharge Elimination System (NPDES) requirements, Florida Department of Environmental Protection stormwater regulations, and local environmental protection ordinances. Developer shall be responsible for any environmental contamination or violations resulting from the Private Utility Lines and shall immediately notify the City of any spills, releases, or environmental incidents involving the Private Utility Lines. The installation of Private Utility Lines shall not interfere with the storm sewer's designed capacity or function, and Developer shall provide Hyperion Utility Easement Agreement Rev. 9.22.25 engineering certification that the Private Utility Lines will not adversely impact stormwater management within the Utility Easement area. 10.GENERAL PROVISIONS a. Authority. Each party represents and warrants to the other Party that it has all necessary power and authority to enter into and consummate the terms and conditions of this Agreement, that all acts,approvals, procedures,and similar matters required in order to authorize this Agreement have been taken,obtained,or followed,as the case may be,and that, upon the execution of this Agreement by all parties, this Agreement shall be valid and binding upon the Parties hereto and their successors in interest and assigns. b. Amendment.This Agreement may be amended, modified,or cancelled by mutual consent of the Parties as represented by a written document executed by the City and the Developer. c. Notices. All notices to the City shall be in writing by certified mail return receipt requested, or customarily used overnight transmission with proof of delivery,sent to: City: Daniel Dugger,City Manager City of Boynton Beach P.O. Box 310 Boynton Beach, Florida 33425 Telephone: (561) 742-6010 Facsimile: (561)742-6090 Copy:Shawna G. Lamb, City Attorney City of Boynton Beach P.O. Box 310 Boynton Beach, Florida 33425 Telephone: (561) 742-6010 Facsimile: (561)742-6090 Developer: [Name] [Address] [City, State, ZIP] Telephone: [Number] Email: [Email Address]. d. Sovereign Immunity. Nothing in this Agreement or herein shall be considered or construed to waive the City's rights and immunities under common law or section 768.28, Florida Statutes,as may be amended. e. Attorney's Fees. If either Party sues to enforce the Agreement, each Party shall bear its own attorney's fees and court costs. f. Venue,Jurisdiction,Waiver of Jury Trial.This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.Any legal action,suit,or proceeding arising out of or relating to this Agreement shall be instituted in the appropriate state court in Palm Beach Hyperion Utility Easement Agreement Rev.9.22.25 County, Florida, and each Party irrevocably submits to the exclusive jurisdiction of such court in any such action, suit, or proceeding. Any disputes that arise between the Parties regarding the performance of this Agreement and cannot be resolved through negotiations shall be submitted to a court of competent jurisdiction exclusively in Palm Beach County, Florida. THE PARTIES HEREBY KNOWINGLY,VOLUNTARILY,AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION OR LEGAL PROCEEDING RELATED TO THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. g. Independent Contractor. The Agreement does not create an employee/employer relationship between the Parties. The Parties intend that the Developer is an independent contractor pursuant to the Agreement and shall not be considered the City's employee for any purpose. Developer shall not have the right to bind the City to any obligation not expressly undertaken by the City under this Agreement. h. Regulatory Capacity. Notwithstanding the fact that City is a municipal corporation with certain regulatory authority, City's performance under this Agreement is as a Party to this Agreement and not in its regulatory capacity. If City exercises its regulatory authority, the exercise of such authority and the enforcement of applicable law shall have occurred pursuant to City's regulatory authority as a governmental body separate and apart from this Agreement and shall not be attributable in any manner to City as a Party to this Agreement. i. Assignment and Successors. This Agreement shall be binding upon and inure to the benefit of the parties' respective successors, assigns, heirs, and personal representatives. Developer may not assign this Agreement or any rights hereunder without the City's prior written consent,which may be withheld in the City's sole discretion. Any attempted assignment without such consent shall be void. In the event of any transfer of the property served by the Private Utility Lines, Developer shall ensure that the transferee assumes all obligations under this Agreement in writing before closing,and such assumption agreement shall be recorded in the public records. j. No Lien. The Developer shall not at any time permit any lien, attachment, or any other encumbrance under the laws of the State of Florida, or otherwise, by any person or persons whomsoever to be filed or recorded against the City, against any City property or money due or to become due for any work done or materials furnished under this Agreement by Developer. k. Third-Party Beneficiaries. Neither Developer nor City intends to primarily or directly benefit a third party by this Agreement.Therefore, the Parties acknowledge that there are no third-party beneficiaries to this Agreement and that no third party shall be entitled to assert a right or claim against either of them based upon this Agreement. I. Materiality and Waiver of Breach. Each requirement, duty, and obligation set forth in this Agreement was bargained for at arm's length and is agreed to by the Parties. Each requirement, duty, and obligation set forth in this Agreement is substantial and important to the formation of this Agreement, and each is,therefore, a material term.City's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement.A waiver of any breach shall not be deemed a waiver of any subsequent breach and Hyperion Utility Easement Agreement Rev. 9.22.25 shall not be construed as a modification of this Agreement.To be effective, any waiver must be in writing and signed by an authorized signatory of the Party granting the waiver. m. Counterparts and Multiple Originals. This Agreement may be executed in multiple originals and may be executed in counterparts,whether signed physically or electronically. Each of these shall be deemed to be an original, but all of which,taken together, shall constitute one and the same agreement. n. Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by force majeure events beyond the reasonable control of such Party, including but not limited to acts of God, hurricane, tornado, fire,flood,earthquake,explosion,war,terrorism,riot,civil disorder,act of any government body, or other similar causes. The Party affected by such force majeure event shall notify the other Party within a reasonable time of the commencement and termination of the force majeure event.The time for performance shall be extended for a period equal to the duration of the force majeure event,provided that if such period exceeds sixty(60)consecutive days,either Party may terminate this Agreement upon written notice to the other Party. o. Entire Agreement. This Agreement represents the entire agreement between the City and the Developer with respect t to the subject matter of this Agreement. This Agreement supersedes all prior and contemporaneous negotiations, understandings, and agreements, written or oral, between the parties. p. Severability. If any provision of this Agreement or application thereof to any person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable, shall not be affected thereby, and shall continue in full force and effect,and be enforced to the fullest extent permitted by law. q. Headings. The headings contained in this Agreement are for the convenience of reference only and shall not affect the interpretation of this Agreement. r. No Construction Against Drafter.The Parties acknowledge that they have both participated in the negotiation and preparation of this Agreement. Accordingly, this Agreement shall not be construed more strictly against either Party, regardless of which Party was responsible for its preparation. s. Recording. Within fourteen (14) days after the execution of this Agreement by the Parties, the City shall record this Agreement with the cost thereof to be borne by the Developer. t. Informed Execution.This Agreement is entered into voluntarily by the Developer without duress and after full review, evaluation, and consideration by the Developer. Developer is represented by counsel,or alternatively,has been afforded an opportunity to retain counsel for review of this Agreement. (SIGNATURES ON FOLLOWING PAGE) Hyperion Utility Easement Agreement Rev.9.22.25 IN WITNESS WHEREOF,the parties have executed this Agreement on the date last written above. CI F BOYNTON BEACH, FLORIDA BB D LOPM. NT, LC 1111 iill& Reb cca Shelton, Mayor (Signa re), ompan RE:0 -1-ve_( .5ker Print Name of Authorized Official tkrkAprrt‘elS.or-4—cl Title Approved as to Form: 41(17a 49. 74‘ Shawna G. Lamb,City Attorney Attested/Authenticated: - ........... "' r0YNTO `% . _'' SEAL =► Maylee DeJes , City Cler ;t ,INCORPORATED; • ' % 1920 s ' • re '1, ••••....•••• STATE OF PtOR1D 1`QU)g0 . ‘‘‘���ORIDP_' COUNTY OF PA fBf7€tfW 1t./.2.,10 T The foregoing instrument was acknowledged before me by means of physical presence this q day of 1 -k - 2025, by j ob.4,f-`fie C$ 4as S tStve of BB1 Development, LLC, who is personally known to me or who has produced N\i s 1 I(_to . s identification. He/She acknowledged to me that he/she is authorized to execute the foregoing instrument on behalf of the company and that he/she executed the foregoing instrument on behalf of said company as his/her free act and deed and as the free ct and deed of said company. j30--,LA tart' Flublic,State offttlrttta t .lie Print Name: e) -t.Jc, My Commission Expires: Zrlt` 20 ?.lo JOSEPH BUCK Notary Public,State of New York No.01BU8429445 Qualified in Kings County Cenanlsslon Expires Feburary 14,2020 Hyperion Utility Easement Agreement Rev.9.22.25