R16-122 1 RESOLUTION NO. R16 -122
2
3 A RESOLUTION OF THE CITY OF BOYNTON BEACH,
4 FLORIDA, APPROVING A DEVELOPER'S AGREEMENT
5 BETWEEN THE CITY OF BOYNTON BEACH AND HOVSITE II
6 CASA DEL MAR, LLC, FOR THE OFF -SITE CONSTRUCTION
7 OF STORMWATER AND WATER MAIIN PIPING ASSOCIATED
8 WITH THE CASA DEL MAR PROJECT; AUTHORIZING THE
9 CITY MANAGER TO SIGN THE DEVELOPER'S AGREEMENT;
10 AND PROVIDING AN EFFECTIVE DATE.
11
12 WHEREAS, as part of the development of the Casa del Mar project, the
13 Developer, Hovsite II Casa del Mar, LLC., will construct the off -site stormwater and
14 potable water main improvements along Dimick Road and a portion of Lake Drive; and
15 WHEREAS, the cost will be shared between the City and the Developer and the
16 Developer will provide the design, permitting and construction of the infrastructure
17 improvements and the City will reimburse the Developer for the City's share of the cost;
18 and
19 WHEREAS, upon recommendation of staff, the City Commission of the City of
20 Boynton Beach Florida deems it to be in the best interest of the citizens of the City of
21 Boynton Beach to approve and authorize execution of the Developer's Agreement
22 between the City of Boynton Beach and Hovsite II Casa del Mar, LLC.
23 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
24 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
25 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed
26 as being true and correct and are hereby made a specific part of this Resolution upon
27 adoption.
28 Section 2. The City Commission of the City of Boynton Beach, Florida, hereby
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29 approves and authorizes the City Manager to sign the Developer's Agreement between the
30 City of Boynton Beach and Hovsite II Casa del Mar, LLC., for the off -site construction of
31 stormwater and water main piping associated with the Casa del Mar project, a copy of the
32 Developer's Agreement is attached hereto as Exhibit "A ".
33 Section 3. That this Resolution shall become effective immediately.
34 PASSED AND ADOPTED this 0 day of r& jc /3,14 2016.
35
36 CITY OF BOYNTON BEACH, FLORIDA
37
38 YES NO
39
40 Mayor — Steven B. Grant
41
42 Vice Mayor — Mack McCray
43
44 Commissioner — Justin Katz f
45
46 Commissioner — Christina L. Romelus
47
48 Commissioner — Joe Casello
49
50
51 VOTE 50
52
53 ATTEST:
54
55
57 J •. ith A. Pyle, CM /
1 t
58 erim City Clerk `
60 o
61
62 (Corporate Seal) ```
63
64
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This Instrument Prepared by and Return to:
James Vanderwoud, Esq.
K. Hovnanian Homes
3601 Quantum Blvd.
Boynton Beach, Florida 33436
DEVELOPER'S AGREEMENT
THIS DEVELOPER'S AGREEMENT (the "Agreement ") is made as of Julyz?, 2016,
by and between the CITY OF BOYNTON BEACH, a Florida municipal corporation (the "City ")
whose address is 100 E. Boynton Boulevard, Boynton Beach, Florida 33435 and HOVSITE II
CASA DEL MAR LLC, a Florida limited liability company ( "Developer ") whose address is 3601
Quantum Blvd., Boynton Beach, Florida 33436.
RECITALS:
A. Developer is the fee simple owner of that certain real property containing +1- 4.8
acres in Boynton Beach, Florida, being more particularly described on Exhibit A
(the "Subject Property "); and
B. Developer intends to develop the Subject Property as a residential subdivision to
be known as Casa del Mar (the "Project ") as depicted on to that certain site plan
prepared by GGHO & Associates, Inc. as job number 14 -0213 dated 08- 06 -14; and
C. The City and Developer desire to set forth the following special terms and
conditions with respect to the development of the Project as provided for herein.
NOW, THEREFORE, for and in consideration of the above premises, the promises and
provisions contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Developer and the City agree as follows:
1. Recitals. The above Recitals are true and correct and are incorporated herein as
material provisions of this Agreement.
2. Authority. This Agreement is entered into pursuant to the Florida Municipal Home
Rule Powers Act.
3. Obligations and Commitments.
(a) Construction of Storm Water Improvements. Developer shall provide the
design, permitting and construction of the storm water improvements for the Project (the "Storm
Water Improvements "). The City shall reimburse Developer for the City Percentage of the
construction costs incurred by Developer as set forth on Exhibit `B" (the "City Storm Water
Improvements Share ") in the design, permitting and construction of the portion of the Storm
Water Improvements conveying storm water from Dimick Road and a portion of Lake Drive to
the Intracoastal Waterway, as identified on the plans prepared by A. J. Hydro Engineering, Inc _as
job number 14 -0061 dated 02 -05 -16 approved by the City (the "Approved Plans ").
{00143327.1 306-9001821) 1
(b) Construction of Potable Water Improvements. Developer shall provide the
design, permitting and construction of the potable water improvements for the Project (the
"Potable Water Improvements "). The City shall reimburse Developer for the City Percentage
of the construction costs incurred by Developer as set forth on Exhibit `B" (the "City Potable
Water Improvements Share ") in the design, permitting and construction of the portion of the
Potable Water Improvements constituted by the eight inch (8 ") water main to be installed on
Dimick Road and a portion of Lake Drive, as identified on the Approved Plans.
(c) Reimbursement. On or before thirty (30) days after the date of invoicing
(including evidence of payment), the City shall reimburse Developer for the City Storm Water
Improvements Share and the City Potable Water Improvements Share. The reimbursement will be
a one -time payment by the City after final acceptance of the work, including completion of punch
list items, final as -built drawings, easements, and Bill of Sale. The construction costs set forth in
Exhibit `B" include 'a 10% contingency for unforeseen conditions. The use of contingency shall
be mutually agreed upon by the City and Developer prior to invoicing.
4. Time Period. This Agreement shall remain in effect for a period of three (3) years
from the date hereof. Any provision of this Agreement that imposes a maintenance obligation for
Developer and its successors after expiration of this Agreement shall survive the expiration of this
Agreement.
5. Binding Effect and Successors. This Agreement shall run with the Subject
Property and the rights and the obligations under this Agreement shall benefit, burden, and bind
the successors, heirs and assigns of all parties to this Agreement. In the event of the assignment
of this Agreement, or the conveyance or transfer of the Subject Property, or any part thereof, the
Developer shall be and remain liable for performance of the obligations under this Agreement until
such time as a written release is obtained from the City, in the City's sole discretion; provided,
however, in the event all obligations under this Agreement have been completed, no such release
shall be required. Excluding the City and any homeowner who is conveyed a lot within the Project
after a certificate of occupancy is issued for a dwelling unit on such lot, Developer and all
transferees, transferor, grantees, grantors, assignees and assignors relating to the Subject Property
are jointly and severally liable for the Developer's obligations under this Agreement. The rights
granted to Developer under this Agreement relate specifically to the Subject Property and are not
permitted to be transferred to any other property.
6. Validity. If any portion of this Agreement is finally determined by a court of
competent jurisdiction to be invalid, unconstitutional, unenforceable or void, the balance of the
Agreement shall continue in full force and effect.
7. Notices. Any notices required or permitted under this Agreement, and copies
thereof, shall be addressed to the City and the Developer at the addresses first appearing above, or
at such other addresses designated in writing by the party to receive notice.
Notices shall be either: (i) personally delivered (including delivery by Federal Express or
other overnight courier service) to the addresses set forth above, in which case they shall be
deemed delivered on the date of delivery; or (ii) sent by certified mail, return receipt requested, in
which case they shall be deemed delivered on the date shown on the receipt unless delivery is
{00143327.1 306-9001821) 2
refused or intentionally delayed by the addressee, in which event they shall be deemed delivered
on the date of deposit in the U.S. Mail.
8. Attorney's Fees. In any lawsuit between the parties to this Agreement arising from
this Agreement, each party shall bear their own respective attorneys' fees and costs.
9. Entire Agreement. This Agreement embodies the entire understanding of the
parties with respect to the matters specifically enumerated herein, and all negotiations,
representations, warranties and agreements made between the parties are merged herein. The
making, execution and delivery of this Agreement by all parties have been induced by no
representations, statements, warranties or agreements that are not expressed herein. There are no
further or other agreements or understandings, written or oral, in effect between or among the
parties related to the subject matter hereof.
10. Interpretation. None of the parties shall be considered the drafter of all or any
portion of this Agreement for the purposes of interpreting all or any portion of this Agreement, it
being recognized that all parties have contributed substantially and materially to the preparation
of this Agreement.
11. Local Development Approvals and Permits. Notwithstanding anything herein to
the contrary, all development of the Project shall be in compliance with all applicable federal,
state, county and municipal laws and ordinances, rules and regulations (including, but not limited
to, the City's land development regulations, zoning requirements and comprehensive plan). Unless
expressly authorized or granted herein, nothing in this Agreement shall constitute or be deemed to
constitute or require the City to issue any approval by the City of any rezoning, Comprehensive
Plan amendment, variance, special exception, final site plan, preliminary subdivision plan, final
subdivision plan, building permit, grading, storm water drainage, engineering, or any other land
use or development approval. Nor shall this Agreement be deemed to reduce, eliminate, derogate
from or otherwise adversely affect any such approvals, permissions or rights. These and any other
required City development approvals and permits shall be processed and issued by the City in
accordance with procedures with respect to same as otherwise set forth in the City's Code of
Ordinances and subject to any conditions of approval thereof. Nothing in this Agreement shall
constitute or be deemed to constitute a limitation, restriction or any other type of waiver of
Developer's right or ability to seek a rezoning, comprehensive plan amendment, variance, special
exception, site plan, preliminary subdivision plan, final subdivision plan, or any other land use or
development approval.
12. Authority. Each party represents and warrants to the other parties 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.
13. Effective Date. This Agreement shall become effective upon execution by all
parties (the "Effective Date ").
(00143327.1 306-9001821} 3
14. Amendment. This Agreement may be amended, modified or cancelled by mutual
consent of the parties hereto as represented by a written document executed by the City and the
Developer.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Exclusive venue in any action to construe or
enforce the provisions of this Agreement shall be in the circuit court of and for Palm Beach County,
Florida.
16. 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.
17. Indemnification. Developer agrees to defend, indemnify, and hold the City
and the City's its officers, employees, and agents harmless from and against any and all damages,
liabilities, claims, actions, penalties, damages, settlements, judgments, costs and expenses,
including court costs, reasonable attorney's fees, and paralegal expenses, at both the trial and
appellate levels arising directly out of Developer's construction and/or installation of the Storm
Water Improvements and Potable Water Improvements (collectively the "Improvements ")
including, without limitation, losses arising directly out of or resulting from personal injury, death,
damage to property, defects in materials or workmanship, or a claim that the construction and/or
installation of the Improvements violates any applicable statute, ordinance, administrative order,
rule or regulation or decree of any court. The provisions of this section shall survive the
completion and acceptance of the Improvements by the City.
18. Non - Waiver of Sovereign Immunity. Nothing contained in this Agreement nor in
any instruments executed pursuant to the terms of this Agreement shall be construed as a waiver
or attempted waiver by the City of its sovereign immunity under the Constitution and laws of the
State of Florida.
19. No Third Party Beneficiaries. This Agreement does not create any third party
beneficiary rights in any individual or entity that is not a party to this Agreement.
20. 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.
21. Time is of the Essence. Time is hereby declared to be of the essence in the
performance of the duties and obligations of the respective parties to this Agreement.
22. Captions. The captions or paragraph headings of this Agreement are provided for
convenience only and shall not be deemed to explain, modify, amplify or aid in the interpretation,
or meaning of this Agreement.
23. Independent Parties. City and Developer are not partners and this Agreement is
not a joint venture and nothing in this Agreement shall be construed to authorize the Developer to
represent or bind the City to matters not expressly authorized or provided in this Agreement.
{00143327.1 306 - 9001821} 4
CITY:
CITY OF BOYNTON BEACH
ATTEST: By:
Name:
By: Title:
Name:
Title:
APPROVED AS TO FORM AND LEGALITY
For the uses and reliance of the City of Boynton
Beach, Florida only
By:
Name:
Title:
Dated:
{00143327.1 306 - 9001821} 6
DEVELOPER:
HOVSITE II CASA DEL MAR LLC, a Florida
limited liability company
///i
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Print Name: i set -h GG d By: % - vs cn u r--
Witness Its: 're_ tip
Print Name: Ma c � e I c h
Witness
STATE OF FLORIDA
COUNTY OF -Pa\rn F,e. C l
The foregoing instrument was executed, sworn to and acknowledged before me this
____ " 1 , 2016, by (eu5v .U(Y\ as d∎S\ 4 ' � rn 1-- of HOV SITS
II CASA DEL MAR LLC, a Florida limited liability company. She@J)(check one) �' is
personally known to me, or ❑ has produced a valid driver's license as identification.
anfial:t douwb€41,
Notary Pub1i, State and County Aforesaid
ANDREA LAMBERT Name: 1 'A rp G (-
NOTARY PUBLIC My Commission Expires: --C O —c�O 1 c6
� ` i� '` STATEOFFLORIDA My Commission Number is F Fbc1 tF 1 - 7
y , r!4 Comm# FF094417
• r 1% Erl res 2/20/2018
{00143327.1 306 - 9001821}
EXHIBIT A
DESCRIPTION:
ALL OF CASA DEL MAR, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 121, PAGES
116 THROUGH 118, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
CONTAINING 209,259 SQUARE FEET /4.8039 ACRES MORE OR LESS.
EXHIBIT B
Casa Del Mar - Dimick Road Shared Improvements Total Cost Cit Develo - aer City
December 07, 2015 Unit Share Share Percentage
Updated July 15, 2016 nit Quantity Price Total
DRAINAGE FOR DIMICK OUTFALL PIPE
Erosion Control (Silt Fence, Hay Bales, etc.) (City 20 %) LF 515 1.25 644 $129 $515 20%
18" RCP (100% Developer) LF 49 54 2,646 $0 $2,646 0%
30" RCP (50% City to Outfall) LF 171 94 16,074 $8,037 $8,037 50%
Type C Ditch Bottom Inlet w /Conc Apron (< 30 "Pipe) #0S2 (100% Developer EA 1 3649 3,649 $0 $3,649 0%
Conflict Structure CM #1 (50% City) EA 1 8675 8,675 $4,338 $4,338 50%
20' DIP Sewer through Conflict Structure, Including Adapter (100% City) LF 20 195.74 3,915 $1,957 $1,957 50%
Strormceptor Inlet Structure (upgrade for City from Std CB, City 70 %) EA 1 18768 18,768 $9,384 $9,384 50%
Manattee Grate at Outfall (100% City) EA 1 2500 2,500 $2,500 $0 100%
WaStop WS- 750- 55 -XXX 30" Check Valve Including Installation (100% City) EA 1 14875 14,875 $14,875 $0 100%
Total: $71,746 $41,220 $30,526
WATER SYSTEM (Off-Site in Dimick Road)
8" C -900 (Off-Site) 100% Developer LF 527 33.24 17,517 $0 $17,517 0%
8" DIP (Off -Site) 100% Developer LF 44 63.54 2,796 $0 $2,796 0%
8" DIP (Off-Site) 100% City crossing Dimick at Lake LF 41 63.54 2,605 $2,605 $0 100%
8" GV (100 % developer North of Dimick) EA 2 2337 4,674 $0 $4,674 0%
8" GV (100% City South of Dimick) EA 1 2337 2,337 $2,337 $0 100%
8" WM Fittings (Bends, Tees, Hor. & Ver., etc.), Dimick "100% Developer" EA 3 780 2,340 $0 $2,340 0%
8" WM Fittings (Bends, Tees, Hor. & Ver., etc.), Lake "100% City" EA 1 780 780 $780 $0 100%
Sample Points, 50 % City EA 2 342 684 $342 $342 50%
Fire Hydrant Assem (Inc 6" GV and 6" PVC), 50% City EA 1 6074 6,074 $3,037 $3,037 50%
Remove Ex Fire Hydrant (50% City) EA 1 750 750 $375 $375 50%
Single Service (Install Service & Connect to Ex. Meter), 50 % City EA 4 1500 6,000 $3,000 $3,000 50%
Pavement Restoration Dimick Road (Temporary), 50% City SY 225 40 9,000 $4,500 $4,500 50%
3/4" Milling & Asphalt Overlay, 50% City SY 1,200 17.76 21,312 $10,656 $10,656 50%
Pavement Markings & Signage, 50% City LS 1 2500 2,500 $1,250 $1,250 50%
Wet Tap Existing 8" WM in Dimick at US1 (Includes GV), 100% Developer EA 1 8576 8,576 $0 $8,576 0%
Connect to Existing 4" WM in Dimick Road, 100% City EA - 1 2688 2,688 $2,688 $0 100%
MOT, 50% City LS 1 2875 2,875 $1,438 $1,438 50%
Sod, landscape restoration on south side of Dimick Road, 100% City LS 1 1500 1,500 $1,500 $0 100%
Total: $95,008 $34,508 $60,501
CONTINGENCY
Survey Layout & As- Builts (5 %) LS $166,754 5% 8,338 $75,727 $3,786 $91,027 $4,551 45%
Geotechnical (Densities) (2 %) LS $166,754 2% 3,335 $75,727 $1,515 $91,027 $1,821 45%
Civil Inspections & Certifications (5 %) LS $166,754 5% 8,338 $75,727 $3,786 $91,027 $4,551 45%
Contingency(10 %) LS $166,754 10% 16,675 $75,727 $7,573 $91,027 $9,103 45%
Total: $36,686 $16,660 $20,026
GRAND TOTAL: $203,440 $92,387 $111,053
RECAP:
Dimick Road Outfall Drainage Pipe: $71,746 $41,220 $30,526
Off -Site Water Distribution System: $95,008 $34,508 $60,501
Miscellaneous: $36,686 $16,660 $20,026
GRAND TOTAL: $203,440 • $92,387 $111,053
City's Share: $92,387
Developer's Share: $111,053
Total Cost: $203,440
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