R09-085
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1 RESOLUTION NO. R09-085
2
3 A RESOLUTION OF THE CITY COMMISSION
4 BOYNTON BEACH, FLORIDA, APPROVING D
5 AUTHORIZING THE MAYOR TO EXECU AN
6 AGREEMENT BETWEEN THE CITY OF TON
7 BEACH AND W AL-MART STORES, INC., A 1\ W ARE
8 CORPORATION, REGARDING ANNEXA T OF W AL-
9 MART STORES ("SAM'S CLUB") PROP INTO THE
10 CITY BOUNDARY.
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12
13 WHEREAS, W AL-MART STORES, INC e fee simple owner of certain real
14 property located in unincorporated Palm Beac nty, Florida ("County") which is loc lted
15 at 7233 Seacrest Boulevard in the City; an
16 WHEREAS, the Parties des annex the Property into the City's munl :ipal
17 boundaries and have initiated the ess required by law to enact an ordinance adopT ng a
18 n of the Property into the City, pursuant to S,; ction
19
20 constructed certain improvement~ for
21 d service uses on the Property; and
22 AS, the parties desire to enter into this Agreement to memoriali~' ~ and
23 eir understanding and agreement with respect to annexation, future develo )ment
24 of the Property; and
WHEREAS, the City Commission of the City of Boynton Beach, upon
recommendation of staff, deems it to be in the best interest of the residents and citi: ens of
the City of Boynton Beach to approve the Annexation Agreement between the / ~ity of
28 Boynton Beach and WAL-MART STORES, INC.
29 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSII)N OF
30 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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1 Section 1. Each Whereas clause set forth above is
2 incorporated herein by this reference.
3 Section 2. The City Commission of the City of Boy
4 hereby approve and authorize the Mayor the execute the Anne Agreement between the
5 City of Boynton Beach and W AL-MART STORES INC. ocument their understanding
6 and agreement with respect to annexation and subse improvement of the Property; a
7 copy of said Annexation Agreement is attached her
8 Section 3. effective immediately upon passage.
9
10 PASSED AND ADOPTED this day of August 1009.
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12 CITY OF BOYNTON BEACH, FLORIDA
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15 Mayor, Jerry Taylor
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17 Vice Mayor - Woodrow L. Hay
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19 Commissioner - Ronald Weiland
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21 Commissioner - Jose Rodriguez
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23 Commissioner - Marlene Ross
24 . Prainito, CMC
(Corporate Seal)
ROQ-685"
ANNEXATION AGREEMENT
THIS ANNEXA nON AGREEMENT ("Agreement") is made and entered into this _
day of ,2009 by and between the CITY OF BOYNTON BEACH, FLORIDA, a
municipal corporation ("City"), and W AL-MART STORES, INC., a Delaware corporation
("Owner").
WIT N E SSE T H:
WHEREAS, Owner is the fee simple owner of certain real property located in unincorporated
Palm Beach County, Florida ("County") which is located at 7233 Seacrest Boulevard in the City and
is legally described in Exhibit "A" attached hereto and made a part hereof ("Property"); and
WHEREAS, the Parties desire to annex the Property into the City's municipal boundaries and
have initiated the process required by law to enact an ordinance adopting a petition for voluntary
annexation of the Property into the City, pursuant to Section 171.044(2), Florida Statutes
("Annexation"); and
WHEREAS, the City has determined that the Property is contiguous to the City and
reasonably compact, and the City desires to annex the Property into the City; and
WHEREAS, Owner has previously constructed certain improvements for commercial, retail
and service uses on the Property; and
WHEREAS, the parties believe it is in their mutual best interest to initiate the process
required by law to enable Owner to maintain, operate and develop the Property in accordance with
the terms and provisions of this Agreement; and
WHEREAS, the parties desire to enter into this Agreement to memorialize their
understanding and agreement with respect to annexation of the Property.
NOW, THEREFORE, in consideration of the mutual promises, undertakings, terms and
conditions set forth herein, the parties mutually agree as follows:
1. Recitals: Exhibits. The foregoing recitations are true and correct and are hereby
incorporated herein by reference and are valid and binding on the parties hereto. All exhibits to this
Agreement are incorporated by reference, are hereby deemed a part hereof and are valid and binding
on the parties hereto.
2. Legal Authority. This Agreement is entered into under the authority of the Florida
Constitution (including Article VIII, Section 2(b) thereof), the general powers conferred upon
municipalities by statute and otherwise, the Municipal Annexation or Contract Act ("Annexation
Act"), Florida Statutes Section 171.011 et~, and the City's Charter.
3. Property Ownership. Owner acknowledges and represents to the City that it owns the
Property and has the authority to enter into this Agreement.
4. Application for V oluntarv Annexation. This Agreement shall be incorporated into the
Application for Voluntary Annexation ("Annexation Application"), which was previously submitted
to the City, subject to the terms and conditions of this Agreement.
5. Annexation. Owner previously voluntarily filed the Annexation Application with the
City to annex the Property into the City's boundaries, and the City has initiated the process to
accomplish said annexation in compliance with Section 171.044(2), Florida Statutes, and all other
applicable state and local laws and regulations. The City approved the voluntary annexation ofthe
Property on First Reading on January 20, 2009. The Annexation Application does not become
effective until finally approved by the City Commission on Second Reading.
6. Effective Date. This Agreement shall become effective following final approval of the
Annexation Application and upon the date the last of the parties executes this Agreement.
7. Land Use and Zoning.
(a) The Property is currently designated Commercial High with a maximum 5 dwelling
units per acre (CH/5) on the Palm Beach County Future Land Use Plan Map and is
included within Palm Beach County's General Commercial (CG) zoning category;
and
(b) Concurrent with the Annexation Application, Owner submitted applications to the
City to amend the Future Land Use designation of the Property to Local Retail
Commercial (LRC) and change the zoning designation of the Property to Planned
Commercial Development (PCD); and
(c) Owner represents that all existing uses and improvements currently located on the
Property are in conformance with all applicable zoning, land development and
building regulations of Palm Beach County and the City has accepted and relied on
those representations.
8. Prior County Action. City agrees that consistent with Section 171.062, Florida Statutes
and prior to the effective date of the annexation of the Property, to the extent that County has
processed any changes to the land use or zoning on the Property and approved any plat(s), site
plan(s) or other development approvals, City will recognize the effectiveness of said approvals
without requiring re-review or additional approval of the City and will permit construction of any
improvements for which unexpired permits have been issued by the County pursuant to said
approvals.
9. Cooperation In Development Approval Process. The City hereby agrees to cooperate
with Owner in good faith in all aspects ofthe development review process for the Property. In this
regard, the City agrees that its administrative staffwill facilitate all necessary approvals and respond
diligently and expeditiously to all requests and inquiries from Owner regarding such approvals. The
cooperation ofthe City in facilitating the expeditious development review process does not constitute
an agreement to approve :
(a) Site plans
(b) Variances or waivers
(c) Zoning changes
(d) Certificates of occupancy
(e) Permits (building, electrical, etc...)
as approvals of that nature are subject to either quasi-judicial review or administrative review by the
City's building official or his designees. Nothing in the Agreement constitutes a promise or
obligation of the City to zone or rezone Owner's property to any zoning designation which is not
consistent with the City's Comprehensive Plan or zoning regulations, as amended from time to time.
Owner acknowledges that the buffer on the south side of the property shall be improved in
accordance with the conceptual landscape plan attached hereto as Exhibit "B". Such improvements
shall be completed prior to issuance of a building permit for any future redevelopment of the
Property.
The City shall treat the Property as if it was inside City boundaries for purposes of all permitting,
inspections, and approvals for future improvements proposed upon the Property and shall review all
applications in as expeditious a manner as possible.
10. Future Development. City acknowledges that Owner intends to seek future approvals
from the City for development of a fuel service center and to remodel portions ofthe existing store
building substantially in accordance with the Master Plan attached hereto as Exhibit "B". City
further acknowledges that it has reviewed the attached Master Plan in association with the PCD
rezoning application and, pending approval ofthe PCD rezoning application, agrees that the Master
Plan complies with PCD zoning regulations, subject to compliance with applicable development
regulations during the City's site plan review and approval process.
11. Code Amendment. City shall initiate an amendment to its Code of Ordinances in order to
modify right-of-way setback requirements related to fuel service uses within the PCD zoning district
and corresponding PCD zoning application.
12. Use of Property. It is expressly agreed that nothing contained in this Agreement or
otherwise shall be construed to contain a covenant, either express or implied, on the part of Owner to
develop or redevelop the Property, to commence the operation of a business, or to thereafter
continuously operate a business by Wal-Mart on the Property. City acknowledges and agrees that
Wal-Mart may, at Wal-Mart's sole and absolute discretion and at anytime, cease the operation of its
business on the Property.
13. Property Taxes. City acknowledges that upon annexation of the Property, the Property
will be subject to City ad valorem taxes at a millage rate of 6.4553, which is subject to annual
adjustments by the City in accordance with state law.
14. Public Facilities. The City hereby covenants that all public facilities, as defined in
Section 163.3221, Florida Statutes, including, but not limited to, roads, drainage, police and fire
service, sanitation service, parks and recreation service, and general governmental facilities, will be
available to the Property at levels of service consistent with the City's Comprehensive Plan. City
further acknowledges that the Property has previously connected to the City's water and sewer
systems and paid City connection costs associated therewith.
15. Recording. This Agreement shall be recorded in the public records of Palm Beach
County, Florida upon execution by all parties hereto.
16. Necessity of Complying with Local Laws. The parties agree that the failure of this
Agreement to address a particular permit, condition, term or restriction shall not relieve Owner ofthe
necessity of complying with the law governing said permitting requirements, conditions, terms or
restrictions.
17. Default. Ifthe City shall default in any of the terms, covenants and/or provisions ofthis
Agreement to be performed on the part ofthe City, Owner shall have all rights and remedies against
the City as set forth herein, as well as all rights and remedies available at law andlor in equity,
including, without limitation, the right to specific performance. If Owner shall default in any ofthe
terms, covenants and/or provisions ofthis Agreement to be performed on the part of Owner, the City
shall have all rights and remedies against Owner as set forth herein, as well as all rights and remedies
available at law and/or in equity, including, without limitation, the right to specific performance.
18. Assignability. Neither party shall assign this Agreement or any interest hereunder, in
whole or in part, without the prior written consent of the other party, which consent may be withheld
for any reason in their sole and absolute discretion.
19. Miscellaneous.
(a) Entire Agreement. This Agreement sets forth all ofthe promises, covenants,
agreements, conditions and understandings between the parties hereto, and
supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, express or implied, oral or written.
(b) Pronouns. All pronouns and any variations thereof shall be deemed to refer
to the masculine and neuter, singular or plural, as the identity ofthe party or
parties, personal representatives, successors or assigns may require.
(c) Severability. The invalidity of the provisions hereof shall in no way affect or
invalidate the remainder of this Agreement.
(d) Counterpart. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one in the same instrument.
(e) Headings. The headings contained in this Agreement are inserted for
convenience only and shall not effect, in any way, the meaning or
interpretation of the Agreement.
(f) Governing Law. This Agreement shall be construed in accordance with the
laws ofthe State of Florida, and any proceeding arising between the parties in
any manner pertaining to this Agreement shall, to the extent permitted by law,
be held in Palm Beach County, Florida.
(g) Binding Effect. The obligations imposed pursuant to this Agreement upon
the Property shall run with and bind the Property as covenants running with
the Property and this Agreement shall be binding upon and enforceable by the
parties hereto, their personal representatives, heirs, successors, grantees.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Annexation Agreement as of
the day and year written above.
WITNESSES: W AL-MART STORES, INC., a Delaware
corporation
By:
J. Chris Callaway,
Print Name Regional Vice President,
Design & Real Estate
Address: 2001 S.E. 10th Street
Print Name Bentonville, AR 72716-0550
STATE OF )
) SS:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State
aforesaid and in the County aforesaid to take acknowledgments, the foregoing instrument was
acknowledged before me by , as for W AL-
MART STORES, INC., freely and voluntarily, who are personally known to me or who has
produced as identification.
WITNESS my hand and official seal in the County and State last aforesaid this _ day of
,2009.
Notary Public
Typed, printed or stamped name of Notary Public
My Commission Expires:
CITY
ATTEST: CITY OF BOYNTON BEACH
By:
City Clerk Mayor
day of ,2009.
APPROVED AS TO FORM:
By:
City Attorney
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