HomeMy WebLinkAboutAgreement_General_01/11/2018_Austrade - 777 US Highway 1 DEVELOPER'S AGREEMENT
BY AND BETWEEN
THE VILLAGE OF TEQUESTA
AND
777 U.S. HIGHWAY 1, LLC
THIS AGREEMENT(this "Agreement"), is made and entered into this«day of January, 2018, by
and between THE VILLAGE OF TEQUESTA, a municipal corporation of the state of Florida (the "Village"),
and 777 U.S. HIGHWAY 1, LLC., a limited liability company registered and in good standing in the state of
Florida (the "Developer").
WHEREAS, the Developer has applied for permission from the Village to construct an Alley for
vehicular access and associated improvements within a public right-of-way controlled by the Village; and
WHEREAS, the Developer has submitted to the Village plans for the construction of the Alley
improvements (as further described herein); and
WHEREAS, the Village is willing to grant to the Developer the right to construct said
improvements to the Alley consisting of approximately 180 feet in length and 20 feet in width located
approximately 120 feet east of the eastern right-of-way line of U.S. Highway 1 between Palm Court and
Harbor Road South (the "Alley'), pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. THE PROJECT
1.1. The Project shall consist of the installation of pavement, curbing, drainage structures,
exfiltration trenches, a six (6) foot concrete wall, landscaping on both sides of said wall,
signage and striping along with all associated and pertinent work (the "Work") set forth
on the plans entitled "Civil Engineering Plans for: Austrade Office Building" (the
"Construction Plans") which are on file with the Village and are incorporated herein by
reference(the "Project").
1.2. The Developer shall cause all Work relating to the Project to be performed in a good and
workmanlike manner, and in accordance with all applicable laws and other governmental
requirements.
1.3. The Developer shall work diligently to complete the Project concurrently with the
construction of the adjacent office building project located at 777 U.S. Highway One
approved by the Village Council on August 10, 2017 by way of Case No. SPR 03-17 (the
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"Austrade Office Building"). The Project shall be completed to the satisfaction of the
Village in accordance with the terms of this Agreement prior to the issuance of the final
Certificate of Occupancy for the Austrade Office Building project.
2. RIGHT OF WAY/RIGHT OF ENTRY
2.1. The Developer shall perform all Work relating to the Project only within the Village-
controlled right-of-way. This Agreement will serve as a right of entry for the Developer to
enter the Alley to perform the Work. Execution of this Agreement by the Village shall not
constitute a right of entry for the Developer to work anywhere but within the Alley.
3. TERM AND TERMINATION
3.1. This Agreement shall commence upon the date of approval by the Village Council and
shall remain in full force and effect for 99 years, or until such time that the Alley is no
longer needed for ingress and egress from the Developer's adjacent property, as
currently required by the site plan which was approved by the Village Council on August
10, 2017. (the "Term"). Otherwise, this Agreement may only be terminated by the
parties upon mutual agreement.
4. DESIGN PLANS AND CONSTRUCTION
4.1. The Developer hereby assumes responsibility for all Construction Plans and preparations
relating to the Project.
4.2. The Construction Plans submitted to the Village for approval must bear the stamp of a
registered professional engineer who is licensed in the state of Florida.
4.3. The Construction Plans and construction methods must be in accordance with all
applicable Village, state and federal standards.
4.4. The Developer's plans for construction must include all Work contemplated under the
Project,a sequence for construction, and any and all related notes.
4.5. The Developer shall have already furnished to the Village, and the Village shall have
approved the Construction Plans for the Project prior to any Work commencing in the
Alley for the Project.
4.6. The Construction Plans, as approved by the Village, shall be amended only by prior
written agreement between the parties hereto and in accordance with applicable Village
codes and procedures.
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5. CONSTRUCTION
5.1. The Developer shall be solely responsible for the construction of the Project in
accordance with the Village-approved Construction Plans and in conformity with all
applicable laws and construction standards.
5.2. The Developer shall use only certified contractors properly licensed in the state of Florida
for the specific work they are to perform.
5.3. The Developer shall comply with all applicable requirements of the Village and the state
of Florida as it relates to erosion and sediment control.
5.4. The Developer, at its sole cost and expense, shall repair and restore all roadway areas
which are impacted by the performance of the Work hereunder, and such repair and
restoration work shall be in compliance with all applicable requirements of the Village,
Palm Beach County and the State of Florida.
5.5. The Developer shall, at its sole cost and expense, be responsible for obtaining all required
permits and making all applications necessary for the Project. The approval of this
Agreement by the Village in no way waives the Developer's obligation to make such
applications and obtain such permits.
5.6. The Village shall inspect the Project as it deems necessary during construction, upon the
completion of the Work and from time to time, at the Village's sole discretion during the
Term of the Agreement.
6. OWNERSHIP AND MAINTENANCE
6.1. The parties hereby agree that, upon submission of the Developer's Construction Plans to
the Village, the Construction Plans become the property of the Village. The Village shall
provide the Developer with two (2) complete copies of the final approved Construction
Plans. If additional copies are needed, the Developer may request such from the Village,
and shall pay all reproduction costs associated therewith.
6.2. Upon the completion of construction of the Project and notification thereof by the
Developer, the Village shall inspect all Work performed pursuant to the Project, and if it
finds the Work to be satisfactory and the Project complete, the Village shall issue a final
acceptance thereof(the "Final Acceptance"), upon which the Alley may be open for use
by the Developer and the public. Beginning with the date of issuance of the Final
Acceptance, all maintenance and/or repairs that are required to the Work performed in
the Alley and to the Project to ensure continuing compliance with approved Construction
Plans shall be the responsibility of the Developer.
6.3. From the commencement of the Work through Final Acceptance, and beyond for the
entire Term of this Agreement, any and all costs incurred for any repairs to the Project
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which, in the sole discretion of the Village, may be required to be made, shall be the
responsibility of the Developer, who shall either compete such repairs itself, or
coordinate with the Village and to the extent that the Village incurs any expense,
promptly reimburse the Village for all such costs. If at any time during the Term of this
Agreement, the Developer fails to complete timely maintenance or repair work, the
Village may notify the Developer and require completion thereof within a reasonable
time. Should the Developer still fail to complete the maintenance or repair work within
such reasonable time,the Village may complete the required maintenance or repair work
and charge the Developer for all costs of same. Unpaid charges shall constitute a lien on
the Developer's adjacent property and the Village shall have all legal and equitable
remedies related thereto including but not limited to foreclosure, or suit for a money
judgment. The lien granted to the Village under this Section 6.3 is subordinate to any
present or future mortgage, ground lease or other financing affecting the Developer's
adjacent property, and notwithstanding the intent that the Village's lien be automatically
subordinated,the Village agrees to provide written confirmation in recordable form upon
the Developer's written request.
6.4. All improvements to the Alley (the Project) shall become the sole property of the Village.
However, the Developer shall have the maintenance and repair responsibilities for same
as set forth herein.
6.5. At all times during the Term, the Village, its employees and other agents, shall have the
absolute right of ingress, egress and access to the Project site for any and all purposes. It
is agreed and acknowledged by the parties that the Alley is a public right of way located
in the Village.
7. FEES
7.1. In order to perform the Project, the Developer shall pay to the Village all applicable plan
review and permit fees.
8. OTHER AGENCIES'COSTS
8.1. In the event that services and/or materials of other agencies of the Village are required
by the Developer in the performance of the Work hereunder,the Developer shall pay the
full cost of these services and/or materials to the Village.
9. INDEMNIFICATION
9.1. The Developer shall indemnify, save, defend and hold harmless the Village, its
elected/appointed officials, agencies, agents, servants, consultants and employees, from
any and all suits, actions, claims, demands, damages, losses, expenses and/or costs of
every kind and description, including attorneys' fees and court costs associated
therewith, to which the Village may be subjected or put by reason of injury (including
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death) to persons or property, arising out of or resulting from any act or omission,
whether willful, negligent, or otherwise, of the Developer, its employees or agents, in
connection with the performance of the Work hereunder.
9.2. The Village shall have the right to control the defense of all such claims, lawsuits, and
other proceedings. In no event shall the Developer settle any such claim, lawsuit or
proceeding without Village's prior written approval. In the event of any liability claim
against the Developer, the Developer shall not seek to join the Village, its
elected/appointed officials, employees, or agents in such action or hold such responsible
in any way for legal protection of the Developer.
9.3. The Developer's obligations of this Section shall survive until the issuance of Final
Acceptance of this Agreement as contemplated under Paragraph 6.2 above.
10. INSURANCE
10.1. The Developer shall cause to be procured or maintained in full force and effect during the
Term of this Agreement, by the Developer and/or the Developer's Contractor, as
appropriate, general liability insurance (the "Developer's Insurance) acceptable to the
Village, which specifically covers all exposures incident to the intent and responsibilities
under this Agreement in the amounts set forth below (Herein, the term "Developer's
Insurance" shall mean insurance provided by Developer's contractor):
10.1.1. Workers' compensation insurance within Florida statutory limits and employers'
liability insurance with minimum limits of$100,000.00 each accident.
10.1.2. Comprehensive general liability insurance with minimum limits of $3,000,000 as
the combined single limit for each occurrence of bodily injury, personal injury
and property damage. The policy shall provide blanket liability insurance and
shall include coverage for products and completed operations liability,
independent contractor's liability; coverage for property damage from perils of
explosion, collapse or damage to underground utilities, commonly known as XCU
coverage.
10.1.3. Automobile liability insurance covering all owned, hired, and nonowned vehicles
in use by the Developer's contractor, its employees and agents, with personal
protection insurance and property protection insurance to comply with the
provisions of the applicable State law, including residual liability insurance with
minimum limits of $2,000,000.00 as the combined single limit for each
occurrence for bodily injury and property damage.
10.1.4. Named insureds. All certificates of insurance shall name the Village of Tequesta
as an additional insured.
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10.1.5. Cancellation of policies of insurance.At least 60 days prior written notice shall be
given to the Village by the insurer of any intention not to renew such policy or to
cancel, replace or materially alter same, such notice to be given by registered
mail to the Village.
10.2. The Developer's Insurance shall apply separately to each insured against whom claim is
made and/or lawsuit is brought, except with respect to the limits of the insurer's liability.
10.3. The Developer's Insurance coverage shall be primary insurance as respects the Village, its
elected/appointed officials, employees, consultants and agents. Any insurance and/or
self-insurance maintained by the Village, its elected/appointed officials, employees,
consultants or agents, shall not contribute with the Developer's insurance or benefit the
Developer in any way.
10.4. Failure to obtain or maintain insurance coverage as required, or failure to furnish
Certificates of Insurance as required, shall constitute a material breach of this Agreement
and shall entitle the Village to terminate this Agreement immediately upon written notice
to the Developer.
10.5. Notwithstanding anything to the contrary in any applicable insurance policy, the
Developer expressly warrants, attests and certifies that there are no carve outs or
exclusions to the policy coverage and limitations stated herein, except as required by law.
10.6 The Developer's obligations of this Section shall survive until the issuance of Final
Acceptance of this Agreement as contemplated under Paragraph 6.2 above.
11. COMPLIANCE WITH LAWS:
11.1. The Developer hereby represents,warrants, covenants, and agrees that:
11.1.1. It is qualified to do business in the state of Florida and that it will take such action
as,from time to time hereafter, may be necessary to remain so qualified;
11.1.2. The Developer's name in this Agreement is its full legal name;
11.1.3. It has the authority and legal capacity to enter into this Agreement and fulfill its
obligations hereunder;
11.1.4. The execution and delivery by it of this Agreement and the performance by it of
its obligations hereunder have been duly authorized by all requisite action of its
stockholders, partners or members, and by its board of directors or other
governing body(if applicable);
11.1.5. During the Term, it will comply with all federal, state and local laws, ordinances,
rules and regulations, including interim expenditure and annual report
requirements, and applicable codes of ethics pertaining to or regulating the
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services to be performed pursuant to this Agreement, including those now in
effect and hereafter adopted;
11.1.6. There are no suits or proceedings pending or threatened, whether in law or in
equity, to the best of the Developer's knowledge, which if adversely determined,
would have a material adverse effect on the financial condition or business of the
Developer; and
11.1.7. It has obtained,at its expense, all licenses, permits, insurance, and governmental
approvals, if any, necessary to perform its obligations under this Agreement.
11.2. If the Developer fails to fulfill its obligations under this Agreement properly and in a
timely manner, including failure to perform construction in good faith in accordance with
the approved construction schedule, or otherwise violates any provision of this
Agreement, including the above representations and warranties, the Village shall have
the immediate right to complete or remove the work and hold the Developer responsible
for reimbursement of any associated costs incurred by the Village, and the parties agree
that the Village shall automatically be released from any and all claims the Developer may
otherwise have relating to the Project. The Village may, in its sole discretion, allow the
Developer a specified time period in which to cure a breach and/or otherwise correct
and/or improve its performance under the Agreement to the Village's sole satisfaction.
12. GENERAL PROVISIONS
12.1. Notice.
12.1.1. All notices, requests, claims, demands and other communications required or
permitted under this Agreement (collectively, "Notices") shall be in writing and
be given (i) by delivery in person, (ii) by a nationally recognized next day courier
service, (iii) by registered or certified mail, postage prepaid, to the address of the
party specified in this Agreement or such other address as either party may
specify in writing to the following:
FOR THE DEVELOPER:
Mr. Gary Bartl
777 U.S. Highway 1, LLC
3309 Northlake Boulevard,Suite 201
Palm Beach Gardens, Florida 33403
FOR THE VILLAGE:
Office of the Village Manager
Village of Tequesta
345 Tequesta Drive
Tequesta, Florida 33469
12.1.2. All Notices shall be effective upon receipt by the party to which notice is given.
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12.2. Governance.
12.2.1. This Agreement is made in the state of Florida and shall be governed by the laws
of the state of Florida, including the applicable statute of limitations, without
regard to the conflict of law rules.
12.2.2. The legal venue of this Agreement and any disputes arising from it shall be
settled in Palm Beach County, Florida. The Developer hereby irrevocably waives
any objections and any right to immunity on the ground of venue or the
convenience of the forum, or to the jurisdiction of such courts or from the
execution of judgments resulting therefrom.
12.3. No Waiver. A party's failure to insist on compliance or enforcement of any provision of
this Agreement shall not affect its validity or enforceability or constitute a waiver of
future enforcement of that provision or of any other provision of this Agreement.
12.4. Severability. Each provision of this Agreement shall be deemed to be a separate,
severable, and independently enforceable provision. The invalidity or breach of any
provision shall not cause the invalidity or breach of the remaining provisions or of this
Agreement, which shall remain in full force and effect.
12.5. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the respective personal and legal representatives, successors, guardians, heirs and
permitted assigns of the parties hereto and all persons claiming by and through them.
12.6. Agency. Nothing herein contained shall be construed to constitute any party the agent,
servant or employee of the other party, except as specifically provided in this Agreement.
No party has the authority to act as an agent of the other party except as specifically
provided in this Agreement.
12.7. Gender. Words of gender used in this Agreement may be construed to include any
gender; words in the singular may include the plural of words, and vice versa.
12.8. Headings. Any heading of the paragraphs in this Agreement is inserted for convenience
and reference only, and shall be disregarded in construing and/or interpreting this
Agreement.
12.9. Multiple Copies. This Agreement may be executed in any number of copies and each
such copy shall be deemed an original.
12.10. Recitals. The recitals are hereby incorporated as part of this Agreement.
12.11. Survival.The representations,warranties,covenants promises and agreements contained
in this Agreement shall survive the execution and consummation of this Agreement, and
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shall continue until the applicable statute of limitations shall have barred any claims
thereon.
12.12. Interpretation. In the event of an ambiguity or question as to the meaning of any
provision of this Agreement, or a conflict, or inconsistency between similar terms,
conditions, or language between or within this Agreement and the provisions of any
exhibit or schedule attached hereto or any document referred to herein, the
interpretation placed thereon by the Village shall be final and binding on the parties
hereto, provided that any such interpretation shall not be unreasonable.
12.13. Remedies Cumulative. The rights and remedies provided by this Agreement are
cumulative and the use of any one right or remedy by any party shall not preclude or
waive the right to use any or all other remedies. Said rights and remedies are given in
addition to any other rights the parties may have by law, statute,ordinance or otherwise.
12.14. Modifications and Amendments. Any and all modifications, alterations, or amendments
to the provisions of this Agreement must be by means of a written amendment that
refers to and incorporates this Agreement, is duly executed by an authorized
representative of each party, and is approved by the Village Council. No modifications,
alterations, or amendments of this Agreement are valid and enforceable unless the
above requirements have been satisfied.
12.15. Assignability/Subcontracting. The Developer shall not assign,transfer, or subcontract any
part of this Agreement without the prior written consent of the Village, which shall not
be unreasonably withheld.
12.16. Entire Agreement. This Agreement constitutes the entire, full and final understanding
between the parties hereto and neither party shall be bound by any representations,
statements, promises or agreements not expressly set forth herein. The parties do not
intend to sign this Agreement under seal to make it a specialty under Maryland law and
hereby agree to impose the standard statute of limitations on this Agreement.
12.17. Null and Void. Should this Agreement not be approved by the Village Council, it shall be
considered null and void.
12.18. Recording. The Developer shall record this Agreement in the Public Records of Palm
Beach County, Florida immediately upon full execution by the parties.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the day and year first
above written.
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ATTEST THE VILLAGE OF TEQUESTA
r' Ier:CJIP - y: r l
Custodiannnof the`Village Seal am
e:Abigai rennan
LD ' ► leL),W lam( Title: Mayor F`""�a�otlmnunnu7,��r
STATE OF F1-C>(L10
}SS: _ ':INCORPORATED:'
COUNTY OF l_ FILM aeAf-I+ } `•.
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OF
On this 11 day of January, 2018, the foregoing Agreement was acknowYe ged and executed before
me by Abigail Brennan, as Mayor of the Village of Tequesta, a Florida municipal corporation, on behalf of
the corporation, and she is ersona nown me OR has produced as identification.
[Notary Seal]
LORI KWILLIAMS
Commission 0 GO 004067 Notary Public
7 Expires October 18,2020
B �dThmTmyFs 1 wMa80 44
aW 5-7019 Print Name:
Commission No.
10
WITNESS 777 U.S. HIGHWAY 1, LLC
�1 By: c
Name:
Title: u
STATE OF � �� }
}SS:
COUNTY OF s-- }
On this (0 day of 201e the foregoing Agreement was
acknowledged before me by — t , as Managing Member of 777 U.S.
Highway 1, LLC, a Florida limited liability company, on behalf of the company, and she is pers nally
known to me OR who has produced as i en i Ica ion.
[Notary Seal]
STACYA.RODRIGUEZ
,. MY COMMISSION#GG 057603
; c�,' EXPIRES:January 15,2021 Notary ubliC
'••Fp ;° Bonded Thru Notary Public Underwriters
Print Name:
Commission No.
11