R05-122
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1 RESOLUTION NO. R 05- /a~
2
3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA,
5 AUTHORIZING THE EXECUTION OF A RIGHT-OF-
6 WAY IMPROVEMENT AND ABANDONMENT
7 AGREEMENT BETWEEN THE CITY OF BOYNTON
8 BEACH AND THE FOUR SEA SUNS CONDOMINIUM,
9 INC.; AND PROVIDING AN EFFECTIVE DATE.
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12 WHEREAS, in order to allow resurfacing work to be completed prior to transferring
13 the ownership of the right-of ways and future maintenance responsibility to be assumed by the
14 Four Sea Suns Condominium, Inc., a Right-of-Way Improvement and Abandonment
15 Agreement has been created; and
16 WHEREAS, upon recommendation of staff, the City Commission has determined that
17 it is in the best interests of the residents of the City to execute a Right-of-Way Improvement
18 and Abandonment Agreement with The Four Sea Suns Condominium, Inc.
19
20 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
21 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
22
23 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
24 being true and correct and are hereby made a specific part of this Resolution upon adoption
25 hereof.
26 Section 2. The City Commission of the City of Boynton Beach, Florida does
27 hereby authorize the execution of the Right-of- Way Improvement and Abandonment
28 Agreement with The Four Sea Suns Condominium, Inc., a copy of which is attached hereto as
29 Exhibit "A".
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3 PASSED AND ADOPTED this ~ day of July, 2005.
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5 CITY OF BOYNTON BEACH, FLORIDA
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RIGHT-OF-WAY IMPROVEMENT
AND ABANDONMENT AGREEMENT
THIS IS AN AGREEMENT, dated the ~~ day of July , 2005, by and
between:
THE CITY OF BOYNTON BEACH, a municipal corporation, organized and
operating under the laws of the State of Florida, with a business address of 100 E.
Boynton Beach Boulevard, Boynton Beach, Florida 33425, hereinafter referred to
as "CITY";
and
FOUR SEA SUNS CONDOMINIUM, INC. a Florida not-for-profit corporation,
authorized to do business in the State of Florida, with a business address of 1800
NE 3rd Court, Boynton Beach, FL 33435, hereinafter referred to as "OWNER".
WITNESSETH
WHEREAS, OWNER is a condominium association located that owns property adjacent
to North Circle Drive, a/k/a NE 17th Avenue and South Circle Drive, a/k/a NE 16th Avenue in the
City of Boynton Beach; and
WHEREAS, the CITY currently maintains that portion of North Circle Drive and South
Circle Drive adjacent to OWNER's property that is more particularly described in Exhibit "A",
hereinafter referred to as (the "Property"), which is attached hereto and incorporated herein by
reference; and,
WHEREAS, OWNER desires to obtain ownership and all maintenance responsibility for
the Property; and
WHEREAS, in return for the OWNER accepting ownership and maintenance
responsibility for the Property, CITY intends to resurface the Property with a one inch (1 ")
asphalt overlay and other public improvements, as described in the Scope of Work attached
hereto as Exhibit "B", and incorporated herein by reference, (hereinafter referred to as the
"Improvements");
WHEREAS, the parties hereto have concluded that the most efficient manner in which to
achieve the purposes and goals set forth above would be through the entering of this Agreement;
and,
Page 1 of9
NOW, THEREFORE, in consideration of the mutual promises contained herein and
Ten and no/l00 ($10.00) Dollars and other good and valuable considerations, the receipt,
sufficiency, and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1.0 The aforesaid recitals are true and correct and are incorporated herein.
2.0 Purpose. The purpose of this Agreement is to provide for the CITY's completion of
Improvements to the Property in the City of Boynton Beach and the transfer of ownership
and maintenance responsibility for the Property from the CITY to the OWNER.
3.0 Scope of Work. The CITY shall commence, and complete the project as described
in the Scope of Work attached hereto as Exhibit "B" with all practical dispatch, in a
sound, economical, and efficient manner, and in accordance with the provisions herein,
and all applicable laws. The project will be performed in accordance with all applicable
procedures established by the CITY, Palm Beach County, and the State of Florida, which
by this reference is made a part hereof as if fully set forth herein.
4.0 Time. CITY shall be responsible for all work described in the Scope of Work, which is
attached hereto as Exhibit "B", and incorporated herein by reference. CITY shall
complete all of the Improvements by , 2005. In the event the
CITY will not be able to complete the Improvements by ,
2005, the CITY shall provide OWNER with notice of the revised completion date as soon
as practicable.
5.0 Abandonment of Propertv. Following completion of the Improvements, CITY shall
commence the process to effectuate the abandonment of the Property in conformance
with the requirements of the City's Code of Ordinances and the laws of the State of
Florida, subject to the retention of any easements required to access public facilities
including, but not limited to water, sewer, electricity lines, cable television, and other
public purposes. In accepting the Property, the OWNER shall assume all responsibility
and liability for the maintenance, repair, and improvement of the Property from the time
of the abandonment in perpetuity.
6.0 Indemnification. Insurance. and BondiDi!. The OWNER agrees to indemnify and hold
harmless the CITY, its trustees, elected and appointed officers, agents, servants and
employees, from and against any and all claims, demands, or causes of action
whatsoever, and the resulting losses, costs, expenses, reasonable attorneys' fees,
liabilities, damages, orders, judgments, or decrees, sustained by the CITY or any third
party arising out of, or by reason of, or resulting from the OWNER's negligent acts,
errors, or omissions related to the performance of obligations pursuant to this
Agreement..
CITY is a state agency or subdivision as defined in Chapter 768.28, Florida Statutes, and
agrees to be fully responsible for acts and omissions of its agents, contractors, or
employees to the extent permitted by law. Nothing herein is intended to serve as a
waiver of sovereign immunity by the CITY. Nothing herein shall be construed as
Page 2 of9
consent by the CITY to be sued by third parties in any matter arising out of this
Agreement or any other contract.
7.0 Temporary Construction Easement. OWNER agrees to grant CITY a temporary
construction easement over a portion of OWNER's property to be used by CITY, or its
contractor during the construction of the Improvements described in Exhibit "B", which
is attached hereto. CITY shall provide OWNER with a temporary construction easement
for execution no later than thirty (30) days prior to the commencement of construction
activities. In consideration of the execution of the temporary construction easement, the
CITY shall ensure that all of the OWNER's property disturbed by CITY in the
performance of the installation of the Improvements is returned to its original condition
by CITY as of the date CITY commenced such use, at the CITY's own cost.
8.0 Default. In addition to the other remedies which CITY may have specifically set forth in
this Agreement in the event of OWNER's default, CITY shall be entitled to equitable
relief to enforce the terms and conditions of this Agreement either through a decree for
specific performance or injunctive relief.
9.0 Notice. Any notice, request, demand, instruction or other communication to be given to
either party hereunder, except where required to be delivered at the Closing, shall be in
writing and shall be hand delivered or sent by Federal Express or a comparable over-
night mail service, or mailed by U.S. Registered or Certified Mail, return receipt
requested, postage prepaid, to CITY, OWNER, CITY's Attorney and OWNER's
Attorney, at their respective addresses listed below, or by facsimile transmittal with a
receipt certifying delivery:
City: Kurt Bressner, City Manager
City of Boynton Beach
100 E. Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, Florida 33425
Telephone No. (561) 742-6060
Facsimile No. (561) 742-6090
Copy To: James Cherof, City Attorney
Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone No. (954) 771-4900
Facsimile No. (954) 771-4923
Owner: FoùR. &~ SUNS Cùt.JÙÖJ\'\IÑUIV\
~O~~'i£.J-2,~~~I~T .
-gC"'N\OÑ~ttj ßL 3.3<.ì-sS
Telephone No. S&:' I 73 2- ~-Z
Facsimile No. 5\0 I 7 '3 '2 cpCCA 2-
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Notice shall be deemed to have been given upon receipt of said notice. The addressees
and addresses for the purpose of this paragraph may be changed by giving notice. Unless
and until such written notice is received, the last addressee and address stated herein shall
be deemed to continue in effect for all purposes hereunder.
10.0 Asshmment. The Contract shall not be assignable by either party.
11.0 Miscellaneous.
11.1 Counterparts. This Agreement may be executed in any number of
counterparts, anyone and all of which shall constitute the contract of the parties.
The paragraph headings herein contained are for the purposes of identification
only and shall not be considered in construing this Agreement.
11.2 Amendment. No modification or amendment of this Agreement shall be of any
force or effect unless in writing executed by both OWNER and CITY.
11.3 Attornevs' Fees. If any party obtains a judgment against any other party by
reason of breach of this Agreement, attorneys' fees and costs shall be included in
such judgment.
11.4 Governine: Law. This Agreement shall be interpreted in accordance with the
laws of the State of Florida, both substantive and remedial.
11.5 Entire Ae:reement. This Agreement sets forth the entire agreement between
OWNER and CITY relating to the Property and all subject matter herein and
supersedes all prior and contemporaneous negotiations, understandings and
agreements, written or oral, between the parties.
11.6 Computation of Dates. If any date computed in the manner herein set forth falls
on a legal holiday or non-business day or non-banking day, then such date shall
be extended to the first business day following said legal holiday or non-business
day or non-banking day.
11.7 Time is of the Essence. Time is of the essence and failure of the CITY to
exercise the option granted hereby on or before the Option Acceptance Date shall
cause this Agreement to terminate and be of no further force or effect. The
provisions herein contained shall be strictly construed for the reason that both
parties intend that all time periods provided for in this Agreement shall be strictly
adhered to.
11.8 No Recordine:. Neither this Agreement nor any notice or memorandum hereof
shall be recorded in the public records of any county in the State of Florida.
11.9 Interpretation. Should any term or provision of this Agreement be subject to
judicial interpretation, it is agreed by OWNER and CITY that the court
interpreting or construing the same shall not apply a presumption that the term or
provision shall be more strictly construed against the party who itself or through
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,"
its agents and attorneys of each party have participated in the preparation of the
terms and provisions of this Agreement and that all terms and provisions have
been negotiated.
11.10 Captions. Headine:s. Etc. Captions, headings, section and subsection numbers in
this Agreement are for convenience and reference only, and shall have no effect
upon the meaning of any of the terms or provision herein.
11.11 Waiver. Failure of either party to insist upon compliance with any term or
provision hereof shall not constitute a waiver thereof, and no waiver of any term
or provision of this Agreement shall be effective unless it is in writing and signed
by the party against whom it is asserted. Any waiver of any term or provision of
this Agreement shall only be applicable to the specific term or provision and
instance to which it is related, and shall not be deemed to be a continuing or
future waiver as to such term or provision or as to any other term or provision.
11.12 No Third Partv Beneficiary. The terms and provisions of this Agreement are for
the exclusive benefit of OWNER and CITY, and not for the benefit of any third
party, and this Agreement shall not be deemed to have conferred any rights,
express or implied, upon any third party.
11.13 Additional Documents. The PARTIES hereby agree from time to time to
execute and deliver such further documents and do all matters and things which
may be convenient or necessary to more effectively and completely carry out the
intentions of this Agreement. OWNER hereby represents to CITY, with full
knowledge that CITY is relying upon these representations when entering into
this Agreement with OWNER, that OWNER has sole interest in the Property and
that no other person, entity, or mortgagee has any interest in said Property.
11.14 Lee:al Representation. It is acknowledged that each party to this Agreement
had the opportunity to be represented by counsel in the preparation of this
Agreement, and accordingly, the rule that a contract shall be interpreted strictly
against the party preparing same shall not apply due to the joint contribution of both
PARTIES.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the PARTIES hereto have made and executed this Agreement
on the respective dates under each signature: the CITY through its City Commissioners, signed by
and through its Mayor, authorized to execute same by City Commission action on the &.- day of
JU.'l ' 2005, and OWNER, by and through the undersigned officers duly
authoriz d to execute same.
CITY OF BOYNTON BEACH, FLORIDA
BY: ~~~
!MAY-·· TAYWR
M FORM:
OWNER
Fo0R.~E'A ~NS. (Ùt-JœM/^,IÙt\')
WITNESSES: ~Jtt\-110Ñ.+NC. , a Florida
not-for-profi{ corporation .
.
BY:
STATE OF F'lor,d~
COUNTY OF -p 0..1 VY\ "ß¿tÁ.- vh
BEFORE ME, an officer duly au h take
acknowledgæents a peared ,
who is ersonally known to me or who has rovided as
identifica on, an ac ow e ge e s e executed the foregoing Agreement for the use and purposes
lfentione5n it and is duly authorized to execute the foregoing Agreement on behalf of
5:'fÀ ..!/Y'S .
Page 6 of9
IN WITNESS OF THE FOREGOING, I have set my hand and official seal at in the
State and County aforesaid on this ~Tla. day of· ,2005.
NOTARY PUBUC·STA.""E OF FLORIDA ~hf)~n ~~
~ Stephanie Perella
Commission # DD417211
Expires: API. 11 2009 NO~UBLIC H
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Print or Type Name
My Commission Expires:
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h:\1990\900 182.bb\agmt\four sea suns agreement.doc
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EXHIBIT "An
PARCEL 1 LEGAL DESCRIPTION
BEING A PORTION OF THE 30.00 FOOT WIDE RIGHT OF WAY OF SOUTH CIRCLE DRIVE
AS LAID OUT AND IN USE LYING IN LOT 20, SAM BROWN JR'S HYPOLUXO
SUBDIVISION, PLAT BOOK 1, PAGE 81, PUBLIC RECORDS OF PALM BEACH COUNTY,
FLORIDA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF LOT 20, AS SAME IS SHOWN ON SAID PLAT,
RUN THENCE NORTH 02·04'20" WEST ALONG THE WEST LINE OF SAID PLAT, A
DISTANCE OF 30.02 FEET; THENCE NORTH 89'59'35" EAST, A DISTANCE OF 495.63
FEET; THENCE SOUTH 00·00'25" EAST, A DISTANCE OF 30.00 FEET TO A POINT ON
THE SOUTH LINE OF SAID LOT 20; THENCE SOUTH 89'59'35" WEST ALONG SAID SOUTH
LINE OF LOT 20, A DISTANCE OF 494.55 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH
PARCEL 2
BEING A PORTION OF THE 60.00 FOOT WIDE RIGHT OF WAY OF NORTH CIRCLE DRIVE
AS LAID OUT AND IN USE LYING IN LOT 22, SAM BROWN JR'S HYPOLUXO
SUBDIVISION, PLAT BOOK 1, PAGE 81, PUBLIC RECORDS OF PALM BEACH COUNTY,
FLORIDA, DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF LOT 20, AS SAME IS SHOWN ON SAID
PLAT, RUN THENCE NORTH 02·04'20" WEST ALONG THE WEST LINE OF SAID PLAT, A
DISTANCE OF 319.11 FEET TO THE SOUTHWEST CORNER OF SAID LOT 22 AND THE
POINT OF BEGINNING; THENCE CONTINUE NORTH 02·04'20" WEST ALONG SAID WEST
LINE, A DISTANCE OF 60.04 FEET; THENCE NORTH 89'59'35" EAST, A DtSTANCE OF
500.21 FEET; THENCE SOUTH 00·00'25" EAST, A DISTANCE OF 60.00 FEET TO A
POINT ON THE SOUTH LINE OF SAID LOT 22; THENCE SOUTH 89'59'35" WEST ALONG
SAID SOUTH LINE OF LOT 22, A DISTANCE OF 498.05 FEET TO THE POINT OF
BEGINNING.
SURVEYOR'S NOTES
THIS SKETCH OF LEGAL DESCRIPTION IS NOT A SURVEY AND IS NOT VALID WITHOUT
THE SIGNATURE AND RAISED SEAL OF PROFESSIONAL SURVEYOR AND MAPPER TIMOTHY
M. SMITH, FLORIDA CERTIFICATE NUMBER LS 004676.
BEARINGS SHOWN HEREON ARE REFERENCED TO THE WEST LINE OF SAM BROWN JR'S
HYPOLUXO SUBDIVISION, PLAT BOOK 1, PAGE 81, PUBLIC RECORDS OF PALM BEACH
COUNTY. FLORIDA. HAVING A BEARING OF NORTH 02·04'20" WES//
NOT A SURVEY ~M. SMITH, PS.M
. SHEET 1 OF 2 FLOR I DA CERT I FICA TE NO. 4676
TIMOTHY M. SMITH SCALE: N/A
LAND SURVEYING, INC. DATE: JAN 2005
SKETCH OF LEGAL
103 SUNFLOWER STREET DESCRIPTION PROPOSED DIRECTORY: BOYNSUNS
ROYAL PALM BEACH, FL 33411 ROAD ABANDONMENT
(561) 602-8160 FIELD BOOK: N/A
LB #6865
DWG NO.: SUNSSKO 1
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PLAT BOOK 1 PAGE 81 SHEET 2 OF 2
TIMOTHY M. SMITH SCALE: 1"=100'
LAND SURVEYING,INC. DATE: JAN 2005
SKETCH OF LEGAL
103 SUNFLOWER STREET DESCRIPTION PROPOSED DIRECTORY: BOYNSUNS
ROYAL PALM BEACH, FL 33411 ROAD ABANDONMENT
(561) 602-8160 FIELD BOOK: N/A
LB #6865 DWG NO.: SUNSSKO 1
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EXHIBIT "B"
Scope of Improvements to
North Circle Drive (f/k/a N.E. 17th Avenue) and
South Circle Drive
Prepare existing alphaltic surfaces to be overlaid, including elimination of any "pot holes" to
allow for the new surface course.
Adjust all water main valves and wastewater system manholes to allow for the overlay course;
stormwater structures will be evaluated on an individual basis for any adjustment.
Overlay area delineated in Exhibit "A" with a one inch (1 ") asphaltic concrete overlay surface
course.
Re-stripe all parking spaces and pavement markings overlaid with applicable similar markings
and line striping in accordance with city standards; reset any and all wheel stops removed for the
overlay surface course in accordance with city parking standards.
· 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.fI.us
www.boynton-beach.org
July 22, 2005
FOUR SEA SUNS CONDOMINIUM INC
1800 NE 3RD COURT
BOYNTON BEACH FL 33435
To Whom It May Concern:
Attached for your information and files is a fully executed original Right-of-Way
Improvement and Abandonment Agreement. Also attached is a copy of Resolution No.
R05-122 that was adopted by the City Commission at their regular meeting on Tuesday,
July 19, 2005.
If I can be of any additional assistance, please do not hesitate to contact me.
Very truly yours,
CITY OF BOYNTON BEACH
m.~
Janet M. Prainito, CMC
City Clerk
Attachments
Copy to: David Kelley (Engineering), Central File
S:\CC\WP\AFTER COMMISSION\Other Transmittal Letters After Commission\2005\Four Sea Suns Condo - Abandonment Agreement-R-o-W Improvements.doc
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