MITIGATION AGREEMENT (R07-099)
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RESOLUTION NO. R07- cAq
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE AN
AGREEMENT FOR MITIGATION OF ROADWAY
IMPROVEMENTS BETWEEN THE CITY OF BOYNTON
BEACH AND BOYNTON INDUSTRIAL LLC., TO
ACKNOWLEDGE THE PARTIES' RIGHTS AND
OBLIGATIONS WITH RESPECT TO CONSTRUCTION
OF THE NORTHERN ACCESS ROUTE AND THE
PROPOSED PROJECT; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, on October 17, 2006, the City Commission approved the proposed
project with a designated truck access to the project along West Ocean Drive; and
WHEREAS, the City Commission reconsidered their approval and on January 2,
2007, re-approved the proposed project and reinstated Developer's Development Order
without change to the Designated Truck Route; and
WHEREAS, the Agreement will acknowledge 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 and sets forth the City's obligations with respect to the construction of the Northern
Access Route; and
WHEREAS, the City Commission upon recommendation of staff, deems it
appropriate to approve and authorize the Mayor and City Clerk to enter into the Agreement for
Mitigation of Roadway Improvements between the City of Boyoton Beach and Boyoton
28 Industrial LLC.
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
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Section I.
The foregoing "Whereas" clauses are hereby ratified and confirmed as
2 being true and correct and are hereby made a specific part of this Resolution upon adoption
3 hereof.
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Section 2.
The City Commission of the City of Boyoton Beach, Florida does
5 hereby approve and authorize the Mayor and City Clerk to enter into the Agreement for
6 Mitigation of Roadway Improvements between the City of Boyoton Beach and Boyoton
7 Industrial LLC, a copy of which is attached hereto and made a part hereof as Exhibit "A".
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This Resolution shall become effective immediately upon passage.
Section 3.
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PASSED AND ADOPTED this ~ day of August, 2007.
CITY OF BOYNTON BEACH, FLORIDA
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s:\C~ili;Q\A~ents\Occan 95 Mitigation of Roadway,doc
R07-0QQ
AGREEMENT FOR MITIGATION OF ROADWAY
IMPROVEMENTS
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 ofwarehousellight industrial "flex-
space" on certain property within the City's M-1 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 514-518 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 17, 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, subsequent to the approval of the site plan, and in response to
concerns of residential property owners to the west of the project, the City Commission
agreed to explore alternate access routes to the property. The City Commission approved
an expenditure of $750,000.00 in its capital improvement program for 2007-2008 capital
improvement project budget to study, design and construct alternate access to the
property;
WHEREAS, the City has agreed that it shall be responsible for all costs and other
obligations associated with the construction alternate access, 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 alternate access;
WHEREAS, the Developer has agreed that the alternate access shall serve as the
replacement designated truck route for the Proposed Project if and when the City
constructs new roadway(s), but until such time as the Alternate access 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 alternate access roadways. The Agreement also sets forth
the City's obligations with respect to the construction of alternate access and provides
that the Developer shall not be required to pay funds or otherwise participate in the
construction of alternate access 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
be of the essence. The City considers this Agreement as overall authority for the
Developer to proceed to obtain all required permits and certificates of occupancy, and
agrees to cooperate with an expeditious permitting and inspection program for the
Proposed Project. The City agrees to use its best efforts to complete either the necessary
roadway improvements to the Designated Truck Route or alternate access on or before
the date of issuance of the final certificate of occupancy for the Proposed Project but, 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 alternate access.
2.02. Acquisition of Rights-of-Way for Alternate access. The City shall be
solely responsible for purchasing the required property and obtaining all rights-of-way
for the alternate access.
2.03. Construction of Alternate access. The City shall be solely responsible
for paying all costs associated with the design and construction of the alternate access.
2.04, Design Coordination. The City agrees to reasonably cooperate and
coordinate the design of the alternate access adj acent to the Project Site, such that the
design of the Alternate access 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 Alternate access, 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 Project.
2.06. Permits. The City will cooperate and coordinate with the Developer with
regard to all permit applications for the Proposed Project, 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 Alternate access.
2.07. Use of Alternate access. In the event the City builds the Alternate access,
the City shall mark the Alternate access with appropriate signage as being the newly
designated truck route to the Project Site, but the Developer shall not be required to
enforce such use by vehicles accessing the Project Site.
2.08. City Covenauts. The City shall not permit, commit, or suffer any waste
or impairment to the Project Site, 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.
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 developing the Proposed Proj ect, the Proposed Proj ect shall be built in
accordance with the plans and specifications approved by City Commission 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.
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 $115,000 to the City for off-site roadway improvements ("Developer's
Share"). 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 of the Alternate access, or at the time of the City's
issuance of a certification of occupancy to the Developer, whichever occurs first.
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 Proj ect.
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. Venne; Submission to Jurisdiction.
(a) For purposes of any suit action, or other proceeding ansmg 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 subj ect 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.
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 33441
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 33425-0310
Attn: City Manager
with copies to:
James Cherof, Esquire
City Attorney
Goren CherofDoody & 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]
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CITY OF BOYNTON BEACH, FLORIDA
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By: anet M. Prainito, CMC
City Clerk
State of Florida )
County of Palm Beach )
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The foregoing instrument was acknowledged before me this ~3. day of
~~Ot:: , 2007, by Jerry Taylor and Janet Prainito, Mayor and City Clerk,
respe tJvel~ City of Boynton Beach, Flonda, on behalf of the City.
'0 ~~) 'In frl1Ar
Signature of Notary Public
My Commission Expires:
Printed, typed or stamp
..-~ VAI.OAlE MOATI
(O~ f:l MY COMMISSION I OOJ4t,"
, . EXPIRES: SIpNmiI"',_
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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 rne or
who produced as identification.
Signature of Notary Public
My Commission Expires:
Printed, typed or stamp
S:\CAIAGMTS\Ocean 95 revised Agreement,clean.doc
The City of Boynton Beach
City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742-6060
FAX: (561) 742-6090
e-mail: prainitoj@ci.boynton-beach.f1.us
www.boynton-beach.org
August 27, 2007
SIEMON & LARSEN, PA
LAND USE PLANNERS & ATTORNEYS
433 PLAZA REAL, SUITE 339
BOCA RATON, FLORIDA 33432
Re: Resolution No. R07-099 - Agreement for Mitigation of Roadway
Improvements - Boynton Industrial LLC
Dear Mr. Siemon:
Attached is a copy of Resolution No. R07-099. On August 21, 2007, the City
Commission adopted the Resolution that approved the Agreement for Mitigation of
Roadway Improvements.
I have included one partially executed agreement. Once the agreement has been fully
executed, please return the original document to this office for our Central File.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
CITY OF BOYNTON BEACH
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L.la'net M, Prainito, CMC
City Clerk
Attachments
c: Central File, Reso Book
5:\CC\WP\AFTER COMMISSJON\other Transmittal Letters After Commission\2007\R07-099 Roadway improvements
08-27-2007.doc
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