Fort Walton Beach Council agenda — 2-25-14--regular — reading text

months of the approval date of this Agreement by City Council. After thirty (30) months, this Agreement shall expire and become null and void. The failure of the Agreement to address a particular permit, condition, term, or restriction shall not relieve the Developer of the necessity of  complying with the law governing said permitting requirements, conditions, terms, or restrictions. 11. Reconstruction of Parking Area The Developer will as a part of the construction of the new parking garage return all remaining city parking areas into functional parking lots. The sum total of the spaces created in these areas will count toward the total 119 spaces required by the Developer as described in item 16. 12. City shall transfer to Developer all of its interest in the City Property upon issuance of a Certificate of Occupancy for the completion of the Development parking garage and the shell of the primary building, which transferring instruments will include deed restrictions for public parking and a perpetual parking easement as well as other terms and conditions agreed upon by the parties and approved by the City Attorney. Upon completion of the Development, the City Property shall be transferred to Developer by warranty deed. Developer shall at all times comply with all applicable federal, state and municipal laws, ordinances and regulations and shall not directly or indirectly make any use of the City Property that are prohibited or may be dangerous to persons or property. Prior to construction, Developer will be granted a construction easement on City Property to complete the Development. 13. Third -Party Agreements Developer shall have the right to enter into any third -party agreement necessary for the construction of Landmark Center. All construction of Landmark Center shall comply with all review criteria and provisions of the City' s Land Development Code, latest revision. All third -party agreements for the construction of Landmark Center shall be the sole responsibility of Developer. 14. Liens and Encumbrances Other than construction liens pursuant to Chapter 713 of the Florida Statutes, as amended, Developer shall not create, cause, or allow any lien, encumbrance or charge upon the improvements or site, or otherwise impair the City' s interest in the public parking spaces. 15. Discharge of Liens If any mechanic' s, laborer' s, vendor' s, material man' s or similar statutory lien pursuant to Chapter 713 of the Florida Statutes, as amended, is noticed or filed against the public parking or any of City' s interest in the public parking, the Developer shall satisfy such lien or cause it to be discharged by payment, deposit, bond, or otherwise. If Developer does not satisfy or discharge such lien, the City may use its rights to insurance, indemnification, the payment bond, or a letter of credit to satisfy or discharge such lien. 16. A minimum number of parking spaces shall be reserved for public use through a perpetual parking agreement and easement. The number of parking spaces to be reserved for public use shall be equal to or greater than the current number of parking spaces from  the existing public parking on all of the city property, which is eliminated as part of the Development and construction for the Development. The public shall have access to these spaces at all times, in perpetuity, once the Development is completed. The public parking shall be located in a single, designated area on the lowest level( s) of parking. Insurance & Other Forms of Security 17. Insurance Requirements No later than the day of issuance of the Certificate of Occupancy for the Development, Developer shall procure and continue in full force and effect until the final completion of the Development, all insurance as reasonably required by the City and agreed upon by the Developer as reasonable for the parking spaces owned by Developer. Developer shall name the City as an additional insured under the required General Liability, Business Auto and Umbrella policies. Developer shall provide a certificate of insurance evidencing these insurance requirements. Developer or insurer shall provide a minimum thirty (30) day notice to the City of Fort Walton Beach of cancellation of any policy. 18. Guaranty, Performance Bond, Letter of Credit This agreement is entered into on the representations, promises, and asserted financial background and standing of Developer. Therefore, Developer shall procure and continue in full force and effect a performance and payment bond for the Development in an amount no less than the cost to construct the parking garage to the benefit of the City in a form approved by the City Attorney. Such performance and payment bond shall insure the full and proper completion of the Development and public parking as set forth in this agreement and approved by the City. 19. Indemnification Developer shall indemnify and hold the City harmless from all loss, costs, liability, claim, damage and expense including, without limitation, reasonable attorneys' fees and costs actually incurred, penalties and fines, incurred for claims against the City arising from any acts, omissions or negligence of Developer, or of the contractors, agents, servants, employees, guests, invitees or licensees of Developer, or any person claiming through or under such person, as a result of the terms and existence of this agreement, including without limitation, any acts, omissions or negligence in connection with any construction work or in the making or performing of any repairs, restoration, alterations or improvements, to the Development, except to the extent any of the foregoing is caused by the negligence or willful misconduct of the City. Default & Remedies 20. Events of Default of Developer a. If Developer does not apply for a Development Order and Building Permit within six ( 6) months of the City Council approval date of this Agreement, and obtain a Development Order and Building Permit within twelve ( 12) months of the City Council approval date, that failure shall be considered a default of this Agreement. Developer will complete the Development within thirty (30) months from the City Council approval date of this Agreement.  b. If Developer fails to observe and perform any other term, covenant or condition of this Agreement, or any subsequent agreement, document, consent, or modification, and fails to remedy such failure within thirty (30) days of written notice by the City Manager, the City may take whatever steps are necessary to cure the default. 21. Events of City Default The parties acknowledge that the City cannot bind into the future the decisions of any City Council which is duly elected by the people of Fort Walton Beach. Developer recognizes that current Florida law, and the current voter and citizen climate regarding ad valorem taxation and bonding of ad valorem revenues or a pledge of such revenues may reduce the City' s ad valorem tax assessments and revenue and substantially affect the City' s ability to bond, pledge or obligate any source of revenue funds. Therefore, Developer recognizes, acknowledges and agrees that it is proceeding at its own risk without any reliance on any position of the City at this time, and that by receiving a building permit for the parking structure, assumes full responsibility and risk for any of its funds expended, contracts made between it and third -parties, or other liabilities associated with the construction of any and all parking. 22. Remedy Upon Default a. Subject to the provisions of Sections 20 & 21 above, if an event of default occurs, the non -defaulting party may elect to i) cure the default and seek compensation for such default from insurance, bond, or letter of credit; ii) file for specific performance or to enjoin the default of the terms of this agreement in the Circuit Court of Okaloosa County and seek to recover damages, including a reasonable attorney fee and costs, for such default. Mediation is a condition precedent to legal or equitable proceedings by any party for claims arising out of or related to this Agreement. If a lawsuit is filed before mediation is conducted, all parties consent to a court order referring the dispute to a consolidated mediation for all of the litigation parties and staying the lawsuit pending completion of the mediation up to 90 days). The parties shall share equally the fee for the mediator. The mediation shall be held in Okaloosa County b. The exercise of an election of one remedy does not limit or otherwise affect a party' s right to exercise any of the other remedies available hereunder or in accordance with Florida law. C. No failure by City or Developer to insist upon strict performance or remedy of any covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy available to such party by reason of the other party' s default shall constitute a waiver of any other default of this Agreement. No covenant, agreement, term or condition of this Agreement to be performed or complied with by either party and no default by either party, shall be waived, altered or modified except by a written instrument executed by the other party. No waiver of any default or Event of Default shall affect or alter this Agreement, but each and every 0 . 0 ..•  covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent default. d. If Developer or any of its partners files for relief of any kind pursuant to the Federal Bankruptcy Code, the City shall be entitled to invoke all rights and remedies available to it under this Agreement and such bankruptcy code, statutes or law. Notices 23. Service of Notice Notice, demand, request, consent, approval, service or other communication anticipated by the terms of this Agreement, shall be given by either party to the other in writing, directed to the respective party, by certified U.S. Mail, postage prepaid, return receipt requested, or by personal delivery with a signed receipt or a recognized national courier service, and addressed as follows to the other party: If to City: City Manager City of Fort Walton Beach 107 Miracle Strip Parkway SW Fort Walton Beach, FL 32548 With a copy to: City Attorney City of Fort Walton Beach 107 Miracle Strip Parkway SW Fort Walton Beach, FL 32548 If to Developer: Ft. Walton Development