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R90-198RESOLUTION NO.~90-l~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A CERTAIN TRI-PARTY AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND AMERICAN DEVELOPMENT, INC.; A COPY OF SAID AGREEMENT BEING ATTACHED HERETO AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. WHEREAS~ it has been deemed by the City Commission of the City Of Boynton Beach, Florida to be in the best interests of the citizens and residents of said City to snter into this Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BO~NTON BEACH, FLORIDA TEAT: Section 1. The Mayor and City Clerk are hereby ~uthorized and directed to execute a certain Agreement Detween the City of Boynton Beach, Florida and American Development, Inc., said Agreement being attached hereto as Exhibit "A". Section 2. This Resolution shall take effect .mmediately upon passage. PASSED AND ADOPTED this ~ day. of December, 1990 CIT~BOYNTON BEACH, FLORIDA ?/ ayor Vide Mayor ~ommlssloner ~C~i s s idneF TTEST: (CorPOrate ~ea!) ~ommi 6s loner -~ Clerk AGREEHEHT This Tri-Party "AGREEMENT', made and entered intothis day of , 'lg8g, by and .between American Development, Inc., ~ Florida corporation, its ' and PALM ~BEACH~'COUNT¥, a political and:.CIT¥~OF BOYNTON BEACH, a Flow ~ality and State of Florida "CITY'. W ~ TNESSETH: WHEREAS, the DEVELOPER'S ~operty is toCatedon the southwest corner of NW 22nd Avenue & congress Aven'~'~'which will~ be ~developed and to be known as "Target Shopping Center"; and ;WHEREAS, the City of:Bo~nton Beach Zoning Petition File No. 411, Condition No. 20, ~equireslRQadw~y !~ro~ements to be, m~de one of which is at the intersection of HypOlUx° Road and Congress Avenue and requimes the construction of a 'second west bobnd left-turn lane"; and WHEREAS, the DEVELOPER has posted surety with the CITY in the amount of ~n3.60 for the reouired roadway improvements for the entire Petition which WHEREAS, the COUNTYagrees that dual left turnlanesare necessary for east bound l~eft-turning vehicles and desires to construct dual left turns on the west approachin, order to,provide the appropriate al,ignment through the intersections ahd to i~rovide ~e~eficial' impF6v~ments to the traffic capacity at this intersection; and ~ WHEREAS, the requirements set forth in Boynton Beach Petition File No. 411 for the dual left turn lanes on the east approach encompassed with the construction of d~l left turn lanes on the west approach is hereinafter referred to as the PROJECT, and WHER~S, the D~VELOPER will proceed with all necessary procedures to design the plans ~and to a~quire all required permits, .r~ght of way documents, and parcels,' e~c. in order for the PROJECT to be bid; and WHEREAS, the COUNTY will take all required documents from the DEVELOPER and put the PROJECT out for bid; and WHEREAS, both parties will participate in funding the construction of the PROJECT, wh~ile the DEVELOPER will contribute all necessary funds associated with the acquisition of required right-of-way parcels. NOW, THEREFORE, in consideration of mutual covenants, promises and ~gre~ments therein contained, the parties agree as follows: 1. The above recitations are true and correct and incorporated herein by this ~eference~ o ,Plans and. Riqht-Of-Way Documents As soon as practicable, upon the execution of this Agreement, the DEVELOPER shall enter into an Agreement with a consulting engineering firm for the preparation of construction plans and right-of-way documents for the construction of dual left turn lanes on the east and west approaches of the intersection of HypoluxoRoad and Congress Avenue. The County sh~ll have the right to review and approve both the engineering firm and the amount of the contract. A sep&rat~ accounting/billing shall ~e ?complished for the additional work to o 10. All funding for right-of-way acquisition will be incurred by the DEVELOPER including all costs associated with survey, property owner maps, legal descriptions, and parcelled right of way maps required for construction of the PROJECT. d. Palm Bea~hCounty's obligation under, this agreement shall not exceed $60,000 without further Board of County Comm~ss oners authorization. The County has included this project project shall ~inst plans and cumentation of all costs in the Intersection Improvement COUNTY'S in this Fee. -of-way with per in connection with preparation of i , righ~-of~W~y~cquisition, construction costs, attorneys' fees, engineering.expe~ses,'surety expenses, and 'survey~ngexpenses incurred in. connection .with the~ .Developer's obligations as contemplatedby this agreement {c~l)ect]~el% referred to as"£o~ts"). Itisunderstood that no overheadoradmin~tra{(ve expenses in6u~ed by the DevelOPer shall be reimbursed. The covenants andagreements of DEVELOPER contained in ~his Agreement are not personal'butrUn with the Property and shall be binding upon and inure heirs, persona) representatives, successors, transferees orsuccessors in interest in the Property. The term 'DEVELOPER, shal) means only the owner or owners in.question of the Propertyand in, the event ofany transfer of the Property, DEVELOPER (amd in the case of any sqbsequentltransfers or conveyances, th~ grantor} shall be automatically f~eed!and.relieved from and ~fter the ~te of such transfer or conveyancei of All personal liabili~ties ai~ ~spects the performance of aBy~Co~e~aQts o~ obligations qn the part of ~EVELOPER contained in ~thls Agre~m~n~nd ~e successive transferee· oft .~ Property shall become liab!efor.. . the p~rfohmance of the obligations of he DEVELOPER contained in this Agreement. All notices, demands or other communications hereunder shall be in writing, addressed to the parties as follows: As to the DEVELOPER: American Development Inc. c/o Richard Critchfield Esq. Richard H. Critchfield P.A. 2499 Glades Road, Suite 202 Boca Raton, Florida 33431 As to the COUNTY: Palm Beach County c/o Charles R. Walker, Jr., P.E. Director - Traffic Division Post Office Box 2429 West Palm Beach, FL 33402 Unless the address is changed by a party bylike notice given to the other, notice shall be in writing, mailed certified mail, return receipt requested, postage prepaid and Shall be deemed delivered ~en mailed or upon hand delivery to the address indicated. Notwithstanding the foregoing, notice, requests or demands or other communications referred to herein may be sent by telegraph or Federal Express but shall be dee~<l given only when received. The parties hereto agree that in the event it becomes necessary for either party to defend or institute legal proceedings as m result of the failure of either party to comply with the terms, covenants and agreements herein set forth, the prevailing party in sucJt litigation shall be entitled to be reimbursed for all costs incurred and expended in connection therewith, including but not limited to reasonable attorneys' fees and court costs through all trial and appellate levels. 3 11. The governing law of this Agreement shall be construed and determined in accordance with ~he laws of the State of Florida. Venue with respect to any l~tigation shall be Palm Beach County, 'F~orida.~ 12. No waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by the parties against whom it is asseted and any such writte~~waiver shall only be appl~icablle~o'the specific instance to which it relate.and shal~ n~t be'deemed~to-~be continuing or future waiver. Th~ n~nvi~(ons OR ~hisAqreement may not be modified, rescinded or amended :i:~::whol'e ~Or in:..~rtwi~hout the. W-tiLden c~nsent~o~ DEVELOPER and the COUNTY. 14. In the ~vent tha.t any time framerefe~enced in ~h.)$ Agreement cannot be ob~at~6d through~no 6autt of the~DEVELO~ER, ~he-BEVE~OPER ~ay'applyto the c~un~y~.~o?a time e~tension~ This extension shal~ hot be unreasonably wi'thhe~d. . TH,IS:AGREEMENT shall become effective upon approv~T oftheBoard of County Commis~i9n~s o'fPalm B~ach County.; Florida. IN'WItNESS WHEREOF~ the'parties have hereunto have s~ their hands and seals ~n]the dates set forth below. ATTEST: AMERICAN DEVELOPMENT, INC. BY: DATED: (CORPORATE SEAL) ATTEST: John B. Dunkle, Clerk PALM BEACH COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By Deputy Clerk BY: Chairman DATED: Approved as to form and legal sufficiency: By. County Attorney CITY OF BOYNTON BEACH, FLORIDA ~BY: DATED: A17ES): accomplish the dual left turn lanes on the west approach. DEVELOPER shall have prepared and provide to the COUNTY all necessary right-of-way acquisition documents including but not limited to survey, property owners maps, legal descriptions for acquisition, and parcelled right-of-way maps required for the constructionof the PROJECT and subject to the approval of the County Engineer. Thes~ documents ~hal~l includea titlesearch for a minimum of 25 years. )rovided ~-- descrtpt nece bid. Plans certified cost estimates prior sketches and DEVELOPER any other PROJECT to Right-Of-Way Acquisitioq a. The COUNTYwill take such act)on as may be necessary tO acquire any .~ecessa~ ~ight-~f-way forl ~he pRojECT.('Acqutsiltto~ Property'); p~ovided, however', that the DEVELOPER shall'advance the funds ~ecessary to acqu~.resuch Acquisitt°n:PropertYp:ayable atsuch time as requested by the County to fund the acquisition, tt is the intent that.this, right,of-way acquisition shall be completed prior to August, 1, 1991. b. ~he DEVELOPER shall enter into a written agreement w~th the Right-~ Of-Way Acquisition Section upon request by the M~nager] of Right- of-Way Acquisition concerning the fundi:ng of ;the' Acquis~tion~ Property. Construction a. Upon completion of the plans and acquisition of right-of-way, the COUNTY shall let a contract for the construction of the PROJECT according to.the plans. It is the intentthat thisconstruction be commenced within six (6) months of right-of-way acquisition. Fundinq a. The DEVELOPER shall contribute funds to cover the construction of the east approach dual left turn lanes of the PROJECT as shown in the certified cost estimate prepared by Kimley-Horn and Associates dated June 20, 1990 along with necessary transitions west of the intersection (Developer s Obligation). This contribution is estimated to be $180,000. COUNTY will. provide funding as described in the certified cost estimate, which is estimated to be $46,000 and will provide for the additional cost tbprovide dual left turn lanes on the west approach. In the event that the actual construction costs exceed the total of $226,000, the extra funding requirements will be assigned proportionally (80%Developer, 20% County) to the DEVELOPER and the COUNTY. The DEVELOPER'S funds shall be paid t~ Palm Beach County upon request from ~he COUNTY when the PROJECT i ready fo~ bid,basedupon an engineer'S estimate t~ken from the actu~ construct~oh plans. b. In case of defaul~ by the DEVELOPER for funding, t~e CITY shall release such required funds to thelCOUNTY from prewously ~jted surety.