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

Partners LLC Attention: Philip H. Weener 5887 Glenridge Drive NE Suite 275 Atlanta, Georgia 30328 With a copy to: Eric J. Nathan Weener & Nathan LLP 5887 Glenridge Drive NE Suite 275 Atlanta, Georgia 30328 24. Effective Date of Notice Notices shall be effective on the date actually received, as indicated on the receipt or on the date of mailing if delivery is refused by the addressed recipient. Environmental Conditions 25. Use of Hazardous Materials  Developer shall not cause or permit any hazardous materials to be brought on, kept, or used in or about Landmark Center property or City' s land, except as necessary and in compliance with all federal, state, or local environmental laws. 26. Environmental Assessment City shall permit Developer to conduct a Phase I Environmental Assessment on the City Property before transfer of such property. The Phase I Environmental Assessment Report shall be public record and made immediately available to the City. The parties acknowledge that if the Phase I Environmental Assessment Report indicates that environmental concerns, including clean up, fees, or penalties, materially affect the completion of the Development, the parties may agree to withdraw from this Agreement and void all obligations under this Agreement or to jointly seek any available remedy, grant, designation, or process provided by federal, state, and local law and accessible jointly to the City and the Developer. Miscellaneous 27. Termination This Agreement shall be in effect for five ( 5) years after the date of execution by the City This Agreement may be extended by mutual consent of the City and the Developer, subject to a public hearing in accordance with Section 163. 3225, Florida Statutes, as amended. 28. Compliance with Law The Developer must comply with all federal, state, or local law applicable to the Development even if this Agreement fails to address, state, or specify any particular permit, condition, term or restriction. It is Developer' s responsibility to know and abide by all requirements, law, terms, and restrictions applicable to the Development. 29. Recording Within fourteen ( 14) days after the City executes this agreement, the City Clerk shall have the Agreement recorded with the Clerk of Circuit Court in the official records of Okaloosa County. 30. Review The City may review the progress of the Development subject to this Agreement at least once every twelve ( 12) months to determine if there has been compliance with the terms and conditions of the Development Agreement during the period under review. 31. No Authority to Contract in Name of City Nothing contained in this Agreement shall be construed or interpreted to constitute the consent or request of the City, express or implied, by implication or otherwise, to any third -party for any reason, unless evidenced by a written document, consent, or authorization, signed by the appropriate Charter authority, pursuant to Florida Statutes and the City' s Code of Ordinances and Land Development Code. 32. Governing Law & Venue 0. . ....  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, without regard to principles of conflict of laws. The venue for any action arising from this Agreement shall be in Okaloosa County, Florida. 33. Captions The captions of this Agreement are for the purpose of convenience of reference only, and in no way define, limit or describe the scope or intent of this agreement or in any way affect this Agreement. 34. City' s Governmental Capacity Nothing in the Agreement or in the parties' acts or omissions in connection herewith shall be deemed in any manner to waive, impair, limit otherwise affect the authority of City in the discharge or its police or governmental power. 35. Entire Agreement This Agreement, together with the exhibits and attachments, and future documents as anticipated in the commencement paragraph of this Agreement, will contain all of the promises, agreements, conditions, inducements and understanding between City and Developer concerning Landmark Center and associated property transfer and public parking. The parties may execute this Agreement in counterparts. However, the original copy in the possession of the City Clerk shall be deemed the original and shall be held as the public record of this Agreement between the parties. The parties acknowledge that this Agreement, upon approval of the City Council, shall begin to formalize the intent and obligations of the parties. However, the parties acknowledge that there will be subsequent written agreements between the parties, such as a contract for purchase, resolutions, ordinances, and other written agreements, modifications, acceptances, and permits that will be necessary to effectuate the full intent and obligations of the parties. 36. Waiver, Modification, etc. No covenant, agreement, term or condition of this Agreement shall be changed, modified, altered, waived or terminated except by a written instrument of change, modification, alteration, waiver or termination executed by City and Developer. 37. Severability If any provision of this Agreement or the application thereof to any party or circumstances is determined by a court of competent jurisdiction to be invalid and unenforceable, such determination shall not affect any other provisions of this Agreement. 38. Remedies Cumulative Each right and remedy provided in this Agreement shall be cumulative and in addition to every other right or remedy provided for in this Agreement or now existing at law or in equity or by statute. The exercise by a party of any one or more of the right or remedies provided for in this Agreement, or now existing at law or in equity or by statute or otherwise, shall not preclude the simultaneous or later exercise by such party of any or all  other rights or remedies provided for in this Agreement or now existing at law or in equity or by statute. 39. Performance at Each Party' s Sole Cost and Expense. Unless otherwise expressly provided in this Agreement, when either party exercises any of its rights, or renders or performs any of its obligations under this Agreement, including any cost for review, permitting, and completion by Developer, such party shall do so at its cost and expense. 40. Agreement Negotiated by Both Parties. The parties recognize and acknowledge that they both participated with the assistance of respective counsel in negotiation, preparation, authorization and approval of this Agreement. Therefore, neither party shall have any negative inference or presumption raised against it for having drafted the Agreement. 41. Successors and Assigns The agreements, terms, covenants and conditions in this Agreement shall be binding upon, and inure to the benefit of the successors and assigns of the City and Developer. However, this Agreement is entered into on the representations, promises, and financial background and standing of Developer. Therefore, Developer shall at all times remain a party to the agreements and future obligations of its successors and assigns as related to the property transfer and public parking. 42. No Partnership The parties acknowledge that this Agreement is not intended to and therefore does not create between them any type of partnership, joint venture, tenancy -in- common, joint tenancy, or agency relationship for the purpose of developing Landmark Center or for any other purpose. The provisions of this section shall survive expiration or other termination of this Agreement. 43. Time of Essence Time is of the essence under this Agreement. 44. No Third Party Beneficiaries Nothing in this Agreement shall confer upon any person, other than the parties and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement. 45. Execution & Effective Date City and Developer, intending to be bound by the terms of this Agreement, have duly authorized the execution of this Agreement on the day and year written above. However, pursuant to Section 163. 3239, Florida Statutes, as amended, this Agreement will not be effective until thirty (30) days after having been received by the Department of Economic Opportunity. City of Fort Walton Beach, Florida Attest: By: By: Helen Spencer, City Clerk Michael G. Anderson, Mayor Approved as to Form and Legal Sufficiency: By: City Attorney STATE OF FLORIDA OKALOOSA COUNTY This instrument was acknowledged before me on 12014, by Michael G. Anderson, Mayor, and Helen Spencer, City Clerk of the City of Fort Walton Beach, who are personally known to me, or produced as identification. Notary Public Ft. Walton Development Partners, LLC, a Florida Limited Liability Company By: Name ( printed): Manager STATE OF GEORGIA COUNTY OF FULTON This instrument was acknowledged before me on , 2014, as Manager of FT. WALTON DEVELOPMENT PARTNERS LLC, who is personally known to me, or has produced as identification. Notary Public Exhibit A —Description of Developer Property Exhibit B — Description of City Property  EXHIBIT A DESCRIPTION OF ALL PARCELS OWNED BY L FT. WALTON DEVELOPMENT PARTNERS LLC rca d PARCEL 1: U THAT PORTION OF LOT 1, BLOCK A, BUCK' S ADDITION OF FORT WALTON BEACH, LYING Y L WEST OF STATE ROAD BSA ( ALSO KNOWN AS PERRY BLVD.) LEES AND EXCEPT THE SOUTH tv 50 FEET AND THE WEST 50 FEET THEREOF AND THAT PORTION OF LOT 571, OCEAN CITY SUBDIVISION LYING WEST OF STATE ROAD BSA ( ALSO KNOWN AS PERRY BLVD.) AND SOUTH c OF FIRST AVENUE, LESS AND EXCEPT THE WEST 50 FEET THEREOF AND LESS AND EXCEPT J THE FOLLOWING DESCRIBED PROPERTY RESERVED TO THE CITY OF FORT WALTON BEACH 0 FOR RIGHT OF WAY PURPOSES: BEGINNING ON THE NORTH LINE AND 50 FEET EAST OF THE w NORTHWEST CORNER OF LOT 571, OCEAN CITY SUBDIVISION AS RECORDED IN PLAT BOOK c